Failure to take account of material evidence

Muhammad Usman ( MU ) came to the UK as a student. He complied by all accounts with regards to the conditions imposed by his Tier 4 Visa. He studied and undertook part time work as permitted up to 10 hours a week. When he was encountered by Immigration officers at his place of work, the resturant manager mistakenly indicated that he was working almost full time hours. He was subsequently detained and was served with notice curtailing his leave with immediate effect indicating that he had used deception in seeking leave to remain under para 323(ia) of the Immigration Rules.

Judicial Review proceedings ensued on the basis that the Secretary of State had wrongly based her decision on the allegation of deception. That initial decision was withdrawn but a further notice of curtailment issued on the  basis that MU had failed to comply with conditions attached to his grant of leave to remain.

However, what was quite unforgiving was that it was a matter of agreement between the parties that the resturant manager had gone to the  offices of the Secretary of State the following day, partook in an interview by a Home Office official retracting his statement and providing correcting evidence attesting to the actual hours MU had worked ie : the permitted 10 hours per week.

However the Home Office refused to alter their decision to detain and revoke his leave,  bizarrely ( negligently ) indicating "that no evidence was adduced from Home Office in Glasgow to confirm that the resturant manager visited them and provided the information you claim"

In the hearing before Lord Burns at the Court of Session, it was argued that the decision of Secretary of State was perverse as it was one based on error of fact and that it was a decision which failed to comply with the statutory duty imposed upon the Secretary of State in giving proper and adequate reasons for a decision which deal with substantial questions in an intelligible way. The informed reader must be left in no doubt as to what the reasons for the decision were and what were the material considerations taken into account when reaching it (wordie property Company Ltd v SSHD 1984 SLT 345 AT 348 )

Lord Burns accepted the arguement noting that quite apart from the failings of the Home Office officials in the drafting of  letter of rejection, it was perfectly obvious and clearly recorded that the Secretary of State's officials   were aware of the information provided and it was simply a basic failure to take such material evidence into account. Read the judgement here.