This judgment was handed down remotely at 10.30am on 11 April 2025 by circulation
to the parties or their representatives by e-mail and by release to the National Archives.
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Lord Justice Peter Jackson:
Introduction
- The appellant, Mr Ashraful Islam, came to the United Kingdom from Bangladesh in January 2023 on a student visa that was valid until October 2025. On 20 July 2023, he applied to switch to a five-year skilled worker visa, with a view to working as a care worker. His application was accompanied by a Certificate of Sponsorship ('COS') from a prospective employer, dated 16 June 2023. On 25 July 2023, the Secretary of State rejected his application as invalid and returned his application fee minus a small administration fee. On 25 October 2023, the appellant applied for judicial review of that decision. His permission application was refused on the papers by Upper Tribunal Judge Pickup on 12 January 2024, and on oral renewal by Upper Tribunal Judge Smith on 10 April 2024. He now appeals to this court.
- It is not in dispute that the appellant's application was invalid. That is because, three days before the application was made, the Immigration Rules had been changed in order to prevent visa-switching of this kind by students during their course of study. Yet the appellant argues that the Secretary of State nonetheless had a legally enforceable duty to consider whether to waive the invalidity of the application before rejecting it. For the reasons given below, I reject that argument.
The Immigration Rules
- The Immigration Rules Appendix Skilled Worker ('Appendix SW') sets out the route by which an employer can recruit a person to work in the UK in a specific job, in respect of which they have a job offer from a Home Office-approved sponsor. A dependent partner and dependent children can also apply by this route. It is a route to settlement and, prior to 17 July 2023, it was available to students in the appellant's position.
- Unfortunately for the appellant, the government decided to make changes to the student route to skilled worker status soon after his arrival in the UK. It did so by adding paragraph SW 1.5A to the Rules, as set out below. The policy background was described in the Explanatory Memorandum to the Statement of Changes in Immigration Rules HC1496:
"Changes to the Student route and consequential changes to work routes
7.10 The following changes are being made to the student route in response to the Government's commitment to reduce net migration:
- Removing the right for international students to bring dependants unless they are on postgraduate courses currently designated as research programmes; and
- Removing the ability for international students to switch out of the student route into work routes before their studies have been completed.
7.11 These changes preserve the ability for dependants already in the UK to extend their stay, and for international students on taught postgraduate courses beginning before 1 January 2024 to bring dependants. They also preserve existing exemptions for dependants of government-sponsored students and for dependent children who are born in the UK.
7.12 The switching restrictions will ensure that students are generally not switching in-country to another route until they have completed their courses. Students on courses at degree level or above will be able to apply before course completion to switch to sponsored work routes, as long as their employment start date is not before their course completion. Those studying towards PhDs will be able to switch after 24 months' study."
The legislative context for the timing of the changes was described in this way:
"Student route changes (dependants and switching)
6.5 The changes relating to the Student route, and consequential changes to work routes in this statement, will come into effect at 1500 on 17 July 2023, and therefore depart from the usual convention that changes to the Immigration Rules come into force no earlier than 21 days after their being laid in Parliament.
6.6 The Government considers this departure from that convention to be necessary and proportionate. The changes were announced in Parliament and widely reported on 23 May 2023 and there has therefore already been sufficient notice that the changes are taking place. Furthermore, the Government wishes to reduce the possibility of a large number of applications for dependants and switching being made in the 21 days usually available between Immigration Rules changes being laid and coming into force. The changes in relation to dependants will only apply to those students starting courses from 1 January 2024, so there will be no effect on those students making applications relating to courses starting in autumn 2023.
6.7 The other changes will be implemented on various dates from 7 August 2023 as detailed in the implementation section of the accompanying Statement of Changes."
- The structure of the Rules provides that an application under Appendix SW must meet the validity requirements set out in paragraph SW 1. It must then meet suitability requirements under paragraph SW 2 and eligibility requirements under the points-based system in paragraph SW 3.
- Following the addition of paragraph SW 1.5A, Appendix SW 1 read as follows on the date of the decision:
"Validity Requirements for a Skilled Worker
SW 1.1. A person applying for entry clearance or permission to stay as a Skilled Worker must apply online on the gov.uk website on the specified form as follows:
(a) for applicants outside the UK, form "Skilled Worker visa"; or
(b) for applicants inside the UK, form "Skilled Worker".
SW 1.2. An application for entry clearance or permission to stay as a Skilled Worker must meet all the following requirements:
(a) any fee and Immigration Health Charge must have been paid; and
(b) the applicant must have provided biometrics when required; and
(c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality; and
(d) the applicant must have a certificate of sponsorship that was issued to them by their sponsor no more than 3 months before the date of application.
SW 1.3. The applicant must be aged 18 or over on the date of application.
SW 1.4. An applicant applying for entry clearance or permission to stay, who has received an award from a Government or international scholarship agency in the 12 months before the date of application which covers both fees and living costs for study in the UK, must have provided written consent to the application from that Government or agency.
SW 1.5. If applying for permission to stay, the applicant must be in the UK on the date of application.
SW 1.5ZA. If applying for permission to stay, the applicant must not have, or have last been granted, permission:
(a) as a Visitor; or
(b) as a Short-term student; or
(c) as a Parent of a Child Student; or
(d) as a Seasonal Worker; or
(e) as a Domestic Worker in a Private Household; or
(f) outside the Immigration Rules.
SW 1.5A. An applicant who is applying for permission to stay and has, or last had, permission as a Student, must fulfil one of the Conditions A, B or C below on the date of application:
(a) Condition A: the applicant must have completed the course of study for which the Confirmation of Acceptance for Studies was assigned (or a course to which ST 27.3 of Appendix Student applies); or
(b) Condition B:
(i) the applicant must be studying a full-time course of study at degree level or above with a higher education provider which has a track record of compliance; and
(ii) the Certificate of Sponsorship in SW 1.2(d) must have a start date no earlier than the course completion date; or
(c) Condition C:
(i) the applicant must be studying a full-time course of study leading to the award of a PhD with a higher education provider which has a track record of compliance; and
(ii) the Certificate of Sponsorship in SW 1.2(d) must have a start date no earlier than 24 months after the start date of that course.
SW 1.6. An application which does not meet the validity requirements for a Skilled Worker is invalid and may be rejected and not considered."
SW 1.6 was amended with effect from 5 October 2023 so that it currently reads:
"SW 1.6 An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered."
There is in my view no material difference between the two versions.
- It will be seen that SW1 sets out a series of mandatory requirements for a valid application. The appellant, as a current student, fell within SW 1.5A, which provides three conditions as alternatives. It is common ground that he did not meet any of them. He had not completed his course (Condition A). The start date of his COS was before the course completion date (Condition B(ii)). He was not a PhD student (Condition C). It is not suggested that he did not meet the other mandatory requirements.
The appellant's case
- The appellant's case rests on his interpretation of SW 1.6 as it then read:
"An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered."
Appearing for the appellant in this court, Mr Zane Malik KC argues that the word 'may' shows that the Secretary of State has a discretion that she must exercise before rejecting an application as invalid. She misunderstood 'may' as if it was 'must'. She did not appreciate that she had a discretion, so did not exercise it. Her rejection of the application was therefore unlawful.
- This argument did not find favour in the Upper Tribunal. UTJ Pickup wrote:
"(5) Unarguably, the application when made was invalid under SW1.5A of Appendix Skilled Worker of the Immigration Rules as they applied at the date of application. Unarguably, no valid reason was provided to justify the respondent waiving the requirements of the Rules and to consider the application under residual discretion.
(6) Nothing in the grounds even arguably demonstrates that the rejection of the application as invalid was irrational, unreasonable, or otherwise unlawful. In the circumstances, permission must be refused. Nothing demonstrates that the respondent should have provided for a transitional period or that the applicant's rights were infringed by the failure to do so. Had the applicant made the applicant promptly after the obtaining of the COS, it would not have been invalid."
- Following oral renewal, UTJ Smith wrote:
(3) It is common ground that the Applicant cannot meet the mandatory requirements of SW 1.5A (as introduced on 17 July 2023) as he had continuing leave as a student. The Applicant however prays in aid what he says is a discretion under SW1.6 to treat as valid an application which is otherwise invalid. SW1.6 reads as follows:
"An application which does not meet the validity requirements for a Skilled Worker is invalid and may be rejected and not considered."
(4) That provision does not arguably permit the Respondent to treat as valid in his discretion an application which is invalid. What it does is permit the Respondent to treat as invalid without consideration (rather than refuse) an application which does not meet the validity requirements. That is precisely what the Decision does. The Applicant's interpretation of that provision as including a discretion to treat an invalid application as valid is not arguable.
(5) Even if the Applicant were correct in his interpretation, it is not arguably irrational for the Respondent not to exercise discretion in this case. The circumstances relied upon (COS obtained prior to rule change, rule change with no transitional arrangements and which - deliberately - was brought into force immediately and application made shortly after rule change) would no doubt apply to many people. It is not arguably irrational for the Respondent not to exercise a discretion based on those circumstances to waive what are mandatory requirements (particularly where no request for the exercise of discretion has been made). The judgment in R (Behary and Ullah) v Secretary of State for the Home Department [2016] EWCA Civ 702 is not arguably of any assistance.
(6) The Decision is for those reasons unarguably lawful and rational. I therefore refuse permission to apply for judicial review."
- In granting permission to appeal on 2 July 2024, Newey LJ observed that on one view paragraph SW 1.6 entitled the Secretary of State to decline to give the appellant's application any consideration at all, while on the other, the use of the word 'may', as opposed to 'must', could be argued to give rise to a discretion which the respondent needed to consider exercising. He noted that the appellant did not argue that the decision was irrational.
- Mr Malik took us to authority on the construction of the Immigration Rules. In MO (Nigeria) v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230, Lord Hoffman said:
"Like any other question of construction, [it]… depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."
In similar vein, Lord Brown of Eaton-under-Heywood in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48:
"Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."
- The issue in Mahad was whether third party support could be taken into account under Part 8 of the Rules when considering whether a person seeking leave to enter the UK to join a relevant family member could be maintained without recourse to public funds. Parts 6 and 7 contained provisions that made clear that applicants for entry under those parts could not rely on third party support, while Part 8 was silent. Mr Malik relies on Lord Brown's further observation that:
"If, indeed, the Secretary of State was intent on ruling out third party support in family reunification cases, even assuming that it could be verified as reliable, then he could perfectly well have made that plain by using the same sort of language as in the Parts 6 and 7 cases."
- Contrasting provisions can therefore be used as a guide. In the present case, Mr Malik points to the use of the word 'must' in relation to eligibility and suitability requirements (SW 3.1 and 4.1) and the use of the word 'will' in SW 17, entitled 'Decision on application as a Skilled Worker':
"SW 17.1. If the decision maker is satisfied all the suitability and relevant eligibility requirements for a Skilled Worker are met, the application will be granted, otherwise the application will be refused."
By contrast, he argues, the word 'may' in SW 1.6 shows that the decision maker has an obligation to consider whether to waive the invalidity of an application.
- Mr Malik referred us to three cases in relation to the exercise of discretion. He submits that they show that, where a decision-maker has a power, there is a substantive discretion that must be exercised.
- In Ukus (discretion: when reviewable) [2012] UKUT 307 (IAC), the Upper Tribunal considered paragraph 320(18) of the Immigration Rules, which provided that entry clearance would 'normally be refused' to those who had been convicted of an offence that would be punishable by 12 months imprisonment or more in the UK. At paragraph 3, the Tribunal observed that this connoted a discretion to be exercised by the decision maker. All the more so, Mr Malik submits, for the word 'may' in SW 1.6.
- R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019] 4 All ER 998 concerned the interpretation of Rule 322.5, which concerns general grounds for refusal. The rule sets out some grounds on which applications 'are to be refused' and others in which they 'should normally be refused'. This court gave guidance about the approach to exercising the discretion inherent in the second category. Mr Malik relied on the analysis at paragraphs 33 and 39.
- In Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157; [2020] 1 WLR 1359 it was held that a balancing exercise was (in all but the most extreme cases) required before a decision maker could dismiss an application for indefinite leave to remain on the grounds of the applicant's character and conduct.
- Mr Malik submits that the Secretary of State's approach in the present case is directly inconsistent with Balajigari and Yaseen. He does not suggest that she is obliged to grant his client leave to remain as a skilled worker, but argues that he is entitled to a consideration of his application in a lawful manner. It is inherent in a power to reject that there is a power to accept.
- Mr Malik accepts that the appellant was not in the kind of position that led to success on appeal for the applicants in the above cases. He nevertheless identified five points that indicate that there was an obligation to 'consider whether to consider' the application:
(1) The COS was issued on 16 June 2023, a month before the rule change. In that sense the application was in progress before the change took effect.
(2) The rule change took effect in disregard of the usual convention that changes to the Immigration Rules come into force no earlier than 21 days after their being laid before Parliament. This had the potential to result in hard, arguably unfair, outcomes for applicants who were unaware that the change would be made.
(3) The application was made three days after the rule change and there is no apparent reason why it could not have been made before it.
(4) The applicant had not appreciated that his application was undermined by the rule change.
(5) All the other requirements of the Rules were met.
- These matters, says Mr Malik, show that if the decision maker had exercised the discretion bestowed by the Rules, the application was not hopeless. This court should allow the appeal, grant permission to apply for judicial review, and remit to the Upper Tribunal to determine the application on its facts.
The Secretary of State's response
- Lord Murray submits that the Rules permit the Secretary of State to reject without consideration (rather than to refuse) an application that does not meet the conditions precedent to a valid application. He does did not seek to argue that 'may' in paragraph SW 1.6 should be read as 'must', but submitted that it confers no entitlement on an applicant to have an invalid application considered. There was no meaningful discretion to exercise. The contrasting provisions relied upon by the appellant concern refusal, not rejection, as a consequence of a full consideration.
- In the alternative, if a discretion should have been exercised, it cannot be impugned. The appellant did not provide any reason why the Secretary of State should waive the validity requirements. The decisions in R (Behary) v Secretary of State for the Home Department [2016] EWCA Civ 702; [2016] 4 WLR 136 and Hippolyte v Secretary of State for the Home Department [2024] EWHC 2968 (Admin) show that the Secretary of State does not have to 'chase shadows' in considering arguments that are not positively advanced to her. Finally, the Secretary of State invokes section 31(2A) of the Senior Courts Act 1981, which provides that the court must refuse to grant relief if it appears highly likely that, had the decision-maker had a discretion to exercise, the outcome would not have been substantially different.
Analysis
- We are concerned here with procedural fairness. In R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 560, Lord Mustill described fairness as "essentially an intuitive judgment", and he made these observations that are apt in the present case:
- Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.
- The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.
- An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.
This last observation accords with Lord Hoffman's statement (above) that we must construe the language of the relevant Immigration Rule against the background of the Rules as a whole and the function which they serve in the administration of immigration policy.
- It is not in doubt that the appellant had the right to be fairly treated by the Secretary of State in relation to the treatment of his application for a skilled worker visa within the framework of the law as laid down by Parliament. What did fairness require in the present case?
- There is no direct authority on the issue. None of the authorities cited to us has any real bearing on the present case. They all concerned classic exercises of discretion that undoubtedly gave rise to enforceable public law obligations, and Behary and Hyppolite concerned leave outside of the Rules. We must therefore consider the matter at the levels, of language, policy and administrative function.
- As a matter of language we must, as Lord Brown has ordained, construe the words of SW 1.6 sensibly, according to their natural and ordinary meaning, recognising that they are statements of the Secretary of State's administrative policy. In my reading, the sensible construction of the sentence
"An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered."
is that the decision maker is entitled to reject a non-compliant application without any consideration whatever of the underlying merits of the application. This is strongly supported by the words validity requirements, rejected as invalid, and not considered.
- The only feature of the provision that might conceivably point the other way is the word may. On this slender foundation, the appellant builds the argument that where something may be done, it may also not be done, and that there must be an enforceable duty to decide which. That logic is unsound because it assumes that the word has only one possible sense. 'May' is a complex word that takes on different colour according to its context. In some contexts it denotes possibility or probability ('It may rain'). In the present context it denotes permission or entitlement, and here again there are shades of meaning. 'May' can mean 'is permitted to', 'has the power to', 'is entitled to' or 'is absolutely entitled to' do something. Here, the language of the rule, where 'may' is coupled to rejection without consideration, points towards the last of these senses.
- At the level of policy, the Immigration Rules exist to facilitate the making of fair and timely decisions. They are made by the Secretary of State and approved by Parliament by way of a negative resolution process under section 3(2) of the Immigration Act 1971, which provides that:
"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter…"
In the present case, the Secretary of State's statement of the practice that would be followed in relation to people in the appellant's position at the date of his application was explicitly set out, as was the reason for breaking with Parliamentary convention in relation to the commencement date. The changes conveyed the clearest expectation that applications that were previously valid would now be rejected as invalid.
- At the level of administrative function, the distinction between rejection for invalidity and refusal after consideration is a familiar and sensible one. Were it otherwise, resources would be wasted on invalid applications at the expense of valid ones. SW 1.6 (and its sister provisions SW 19.4, 26.5 and 37.3 in relation to related visas) serves as a filter that extracts invalid applications from the system and enables decision makers to focus on the suitability and eligibility of applicants who meet the validity requirements. The filter must of course be operated fairly, so it is not open to the decision maker to reject an application without determining whether the validity requirements are met. But once that has happened, fairness does not require more of the decision maker.
- If the appellant's argument were correct, the ramifications would be wide and undesirable:
(1) As Mr Malik accepted, a further conscious decision would be required in respect of every invalid application. Adding an extra decision-making stage would negate the purpose for which the filter, with its accompanying fee waiver, was intended. Far from achieving fairness, that burden would work against fairness and good order in the system as a whole.
(2) If a discretion existed, it would be impossible to exercise it without an investigation of suitability and eligibility that the filter is plainly designed to avoid. Anything less would be an empty and formalistic exercise.
(3) Rule SW 17.1 provides that valid applications must be refused if the suitability and eligibility requirements are not met. It would be a perverse and unintended outcome if makers of invalid applications were in a better position to challenge decisions.
- In this context, the contrasting use of the word 'must' in the context of refusal on grounds of suitability or eligibility does not advance the appellant's argument. Refusal after consideration under a points-based system and rejection for invalidity are different concepts, and there may be good reason for eliminating discretion in the former case in the interests of fairness to all applicants.
- Rule SW 1.6 could of course have said that invalid applications 'will' be rejected. It is possible that the word 'may' has been used to empower the Secretary of State to forgive trivial errors in an application: for example, a minimal error in the fee paid. There is no need to speculate however, as matters of that kind are a world away from the appellant's contention on this appeal.
- Stepping back from all these considerations, my intuitive response to the appellant's argument is that it would be extremely surprising on every level if the maker of an application under the Immigration Rules that has been properly determined to be invalid should have any further enforceable rights against the decision maker within the Rules. Even if that were not so, the appellant's case was hopeless, and there would be no purpose in remitting it to the Upper Tribunal. Whether one applies section 16(3E) of the Tribunals, Courts and Enforcement Act 2007 or section 31A SCA 1981, the outcome would certainly not have been substantially different.
- I therefore conclude that paragraph SW 1.6, and the similar provisions elsewhere in Appendix SW, entitles the decision maker to reject an application that has been properly determined to be invalid without any further consideration and that judicial review will not lie in respect of such a rejection.
- The Upper Tribunal was therefore right to refuse permission to apply for judicial review. I agree with the observations of Andrews LJ about its reasoning at [43-44] below.
- I would therefore dismiss the appeal.
- The respondent will not be entitled to her costs. Permission to appeal was granted in July 2024, but the Secretary of State did not produce a skeleton argument until 17 March 2025. The appellant objected to its admission, but we admitted it because it was in the interests of justice to hear both sides of the argument. However, as a mark of disapproval of the wholesale disregard for the court's directions, we imposed a condition that the Secretary of State would not be entitled to her costs if the appeal did not succeed.
Lord Justice Phillips:
- I agree. I also agree with the further observations of Andrews LJ below.
Lady Justice Andrews:
- I too would dismiss this appeal. I agree with the reasons given by Peter Jackson LJ, and simply add a few observations of my own to explain why, in refusing permission to proceed with the claim, the Upper Tribunal did not (as Mr Malik contended) make the error of interpreting "may" as meaning "must".
- This is an example of a situation in which the use of the word "may" in a policy does not connote the type of discretionary power which obliges the decision maker to demonstrate that the discretion has been exercised, i.e. to balance factors for and against the exercise of the discretion and to give reasons for coming down on one side or the other. The requirements of SW1.5A are couched in mandatory language and SW 1.6 spells out the consequences of failure to meet those requirements (or any other mandatory requirement). A student who falls outside the three specified categories has no entitlement to have the substance of their application considered. The application fails to cross the threshold for consideration. In that context, the word "may" in SW1.6 is plainly being used in the sense of "is entitled to" and makes it clear that the Secretary of State can reject the application on that basis alone, and without giving any further reasons than those which suffice to explain why the application is invalid. The decision maker has no obligation to consider the application further, as SW1.6 spells out. Because of this, the applicant gets a refund of the application fee, less a small administrative charge.
- The interpretation urged on us by Mr Malik would require the Secretary of State to explain why a decision has been taken to reject (and not consider) an application which does not meet the mandatory requirements of the Immigration Rules, which would achieve nothing unless there may have been some good reason to accept it, and that in turn raises the spectre of having to consider the substance of the application, as Peter Jackson LJ has pointed out at [31]. In other words, it would defeat the very purpose which the change to the Rules was designed to achieve.
- I consider that it is understandable why Upper Tribunal Judge Smith expressed herself in the terms that she did, once it is appreciated that "may" in SW 1.6 connotes an absolute entitlement to act in a particular way, rather than a discretion. The argument advanced before her was that the word "may" gave rise to a discretion, of the type identified at [41] above, to treat invalid applications as valid (see the quotation from the Upper Tribunal's decision at [10] above). I consider that she was right to reject the argument, put in those terms, but as I shall endeavour to explain, that does not involve reading "may" as "must".
- If the Secretary of State is entitled to reject an application which does not meet the mandatory requirements, without considering it further, they can obviously choose not to do so, (i.e. to waive a requirement notwithstanding that it is expressed in mandatory terms). It may appear semantic, but that does not mean that a discretion is being exercised to treat the application as a valid application, it means that despite the fact that it is invalid, and thus does not cross the threshold for consideration, the Secretary of State has chosen to consider it on its merits, which the word "may" enables them to do within the ambit of the policy. However, the existence of the power to waive what would otherwise be a mandatory requirement does not mandate the decision maker to consider whether to do so in every case, and to demonstrate in the decision that such consideration has been given, let alone mandate an explanation to be given in every case for why the Secretary of State is not doing so.
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