Ghanian student whose leave to enter was cancelled after being granted wins challenge against Home Office decision

About this case:

• Citation:
  [2025] CSOH 22
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Haldane

Jones Owusu challenged the decision of the Home Secretary on the basis that she had taken into account irrelevant considerations in deciding to cancel his leave to enter and further had failed to provide adequate reasons for doing so. The respondent’s position was that the ultimate outcome would have been the same even if the irrelevant considerations were not included.

The petition was considered by Lady Haldane in the Outer House of the Court of Session. I Halliday, advocate, appeared for the petitioner and S Crabb, advocate, for the Office of the Advocate General, representing the respondent.

Sent in error

On 14 November 2022, while still in Ghana, the petitioner submitted an application for entry clearance to the United Kingdom as a student and for a biometric immigration document granting such clearance. On 17 November 2022 the petitioner’s application was granted, and a visa vignette was placed in his passport, which he collected from a Visa Application Centre in Ghana. The respondent took the view that this had been done in error.

On 18 November 2022, the respondent emailed the petitioner stating that his application was being assessed and requesting further information. The petitioner, in the belief that the email had been sent in error, did not respond. A letter dated 14 December 2022 stating that the petitioner’s application for entry clearance had been refused was then sent, a letter which the petitioner said he did not receive until March 2024. When he attempted to enter the UK at Edinburgh Airport on 1 January 2023, he was not permitted entry and his leave to enter as a student was cancelled.

It was submitted for the petitioner that the respondent’s contention that the initial visa was issued in error was not a relevant consideration in deciding whether or not to allow him entry. There was no dispute that there were entirely valid procedures by which it was open to the respondent to cancel the visa of someone in the position of the petitioner, however none of those had been employed in the present case. The procedures for refusal and cancellation of leave had been unlawfully conflated.

For the respondent it was submitted that, even if there were irrelevant considerations in the decision, these had made no difference to the outcome. The respondent was permitted to cancel leave where false information had been provided, as they maintained the petitioner had regarding where he was staying and the source of certain funds in his bank account.

Lack of clarity

In her decision, Lady Haldane observed: “There can be no doubt that there has been a significant lack of clarity on the part of the respondent in respect of the petitioner’s status when he arrived in the United Kingdom. As a matter of plain English, the respondent’s attempt to refuse an application that had already been granted, both by way of the letter of 14 December 2022 and, on arrival, in the letter of 2 January 2023, is illogical.”

She continued: “There is no explicit power contained in any of the legislation relied upon to refuse an application once granted. Reliance by the respondent upon the power in Article 7 of the Immigration (Leave to Enter and Remain Order) 2000 to ‘give or refuse a person leave to enter the United Kingdom at any time before his departure for, or in the course of his journey to, the United Kingdom’ is misconceived in the circumstances of the present case. By the time of his departure for the United Kingdom the petitioner held ostensibly valid leave to enter.”

Considering whether it was possible to uphold the respondent’s decision, Lady Haldane said: “As a matter of law, the respondent can either refuse leave, or subsequently cancel leave, based on a change of circumstances or other valid reason. There are clear procedures in place to permit the respondent to either refuse or cancel leave, which are engaged depending on the immigration status held by the individual at the time the decision is made. However a decision that purports to do both these things and bears to take into account error in granting the visa as well as an earlier purported refusal of leave, does impermissibly take into account irrelevant considerations and is ultimately unlawful.”

She concluded: “There is no suggestion either that the petitioner acted dishonestly to obtain his visa or that the official who granted it did not have power to do so. The question of error is therefore also irrelevant in this context. It follows that I uphold the first limb of the challenge to the decision of 2 January 2023. For essentially the same reasons, I consider that the challenge so far as based on inadequate reasons is also made out.”

Lady Haldane therefore granted reduction of the relevant decisions as craved by the petitioner.