Immigration Bail as an Independent Suitability Bar under Appendix Skilled Worker and the Procedural Role of Paragraph 39E

1. Introduction

This commentary analyses the Court of Appeal’s decision in Kaur & Ors, R (on the application of) v Secretary of State for the Home Department [2025] EWCA Civ 1474, a significant judgment for the interaction between:

• the Skilled Worker route in Appendix Skilled Worker of the Immigration Rules;
• the “overstayer disregard” in paragraph 39E of the Rules; and
• the immigration bail regime under Schedule 10 to the Immigration Act 2016.

The appeal arose from the Upper Tribunal’s refusal to grant Ms Kaur permission to pursue judicial review of a Home Office decision refusing her Skilled Worker application on suitability grounds because she was on immigration bail at the time of the application.

Two core legal questions framed the appeal:

1. The meaning and effect of paragraph SW2.2 of Appendix Skilled Worker – in particular, whether immigration bail is an independent and absolute bar to a Skilled Worker application, and how that provision interacts with the overstayer “exception” in paragraph 39E.
2. The lawfulness and challengeability of the immigration bail decision (decision 2) – whether Ms Kaur could, in substance, attack the earlier grant of immigration bail as unlawful or an “historic injustice” within judicial review proceedings challenging the later refusal of her Skilled Worker application.

The Court of Appeal (Lord Justice Green giving the lead judgment, with Warby LJ and King LJ agreeing) dismissed the appeal. The judgment is important for four main reasons:

• It confirms that being on immigration bail is an independent suitability bar under Appendix Skilled Worker, unaffected by the paragraph 39E overstayer exception.
• It characterises paragraph 39E as a purely procedural device, with no free-standing substantive effect and no “overriding” policy of forgiving short overstays.
• It confirms that once section 3C leave ends upon service of a refusal, a person is immediately an overstayer and “liable to detention”, enabling immigration bail to be imposed straightaway.
• It gives a robust restatement of judicial review principles concerning prompt challenges, collateral attacks on earlier decisions, and the limited role of “historic/historical injustice” outside Article 8 proportionality cases.

2. Factual and Procedural Background

2.1 Immigration history and applications

Ms Kaur entered the UK as a student, with her husband (H) and child (C) as dependants. Her student leave was due to expire on 12 May 2022. Before expiry she made:

• Application 1 (9 May 2022) – for leave to remain on human rights grounds. This extended her leave under section 3C of the Immigration Act 1971 until that application was decided.

The Home Office then made a sequence of decisions:

• Decision 1 (28 April 2023) – refusal of application 1 and certification as “clearly unfounded” under sections 94(3) and 94(1) of the Nationality, Immigration and Asylum Act 2002. The certification removed any in-country right of appeal.
• Decision 2 (28 April 2023) – at the same time, Ms Kaur was placed on immigration bail under Schedule 10 to the Immigration Act 2016. The bail notice stated there was a reasonable suspicion she may be liable to removal from the UK and set out standard bail termination events (e.g. detention, removal, departure).
• Application 2 (12 May 2023) – a Skilled Worker (Tier 2) application under Appendix Skilled Worker, with H and C as dependants.
• Decision 3 (16 August 2023) – refusal of the Skilled Worker application on the basis that Ms Kaur did not meet the suitability requirements in paragraph SW2.2(b) because she was on immigration bail. The decision-maker did not go on to assess eligibility.
• Application 3 – an administrative review of decision 3, arguing, among other things, that paragraph 39E applied and the refusal was wrong.
• Decision 4 (24 November 2023) – refusal of the administrative review. The Home Office maintained that the refusal correctly applied paragraph SW2.2(b) because Ms Kaur was on immigration bail.

2.2 Judicial review and Upper Tribunal decisions

Ms Kaur then sought judicial review of decisions 3 and 4 in the Upper Tribunal (Immigration and Asylum Chamber). Her pleaded grounds were:

1. Decision 3 was inconsistent with the statutory scheme reflected in paragraph 39E and thus unlawful.
2. Paragraph SW2.2(b) itself was unlawful insofar as it deprived her of the “real benefit” of paragraph 39E.
3. The immigration bail decision (decision 2) was unlawful due to lack of power, failure to follow policy/guidance, procedural unfairness, and legal error.
4. Even if lawful, decision 3 was tainted by a “historic injustice” because it was the product of the allegedly wrongful grant of immigration bail.

Permission was refused on the papers. On renewal, the UT again refused permission, holding that:

• the construction of paragraph SW2.2 was clear and the challenge unarguable; and
• any challenge to the April 2023 bail decision was far too late and, in any event, substantively hopeless.

The Court of Appeal granted permission to appeal (Nugee LJ) on limited grounds, leading to the present judgment.

3. Summary of the Judgment

The Court of Appeal dismissed the appeal in its entirety.

3.1 Construction of paragraph SW2.2 – Ground 1

The Court held that paragraph SW2.2 of Appendix Skilled Worker means what it says on its face:

• It imposes three suitability bars:
  • falling for refusal under Part 9 (SW2.1);
  • being “in breach of immigration laws”, subject to the paragraph 39E exception (SW2.2(a)); and
  • being on immigration bail (SW2.2(b)).
• The paragraph 39E exception only modifies the “in breach of immigration laws” bar in SW2.2(a). It does not affect the separate “on immigration bail” bar in SW2.2(b).
• The word “or” between SW2.2(a) and (b) denotes alternative, independent bars: if either applies, the application fails on suitability grounds.
• Paragraph 39E is a procedural provision that operates only where another Rule anchors it. It has no free-standing, overriding effect.

Accordingly, even if Ms Kaur’s overstaying fell within paragraph 39E and was “disregarded” for the purposes of being “in breach of immigration laws”, the fact that she was on immigration bail still required refusal of her Skilled Worker application.

3.2 Challenge to the immigration bail decision and “historic injustice” – Grounds 2, 3, 4 and 5

The Court further held that:

• Ms Kaur’s attempt to challenge decision 2 (the grant of immigration bail) was procedurally barred; she had not sought judicial review of that decision within time, nor sought an extension of time. Public law decisions not promptly challenged are treated as lawful.
• Even if one looked at the substance, decision 2 was lawful:
  • Her section 3C leave ended immediately upon electronic service of decision 1 on 28 April 2023.
  • From that moment, she was an overstayer, “liable to removal” and therefore “liable to detention”, making immigration bail available under Schedule 10.
  • The Home Office was not required to wait for the expiry of a notional “14‑day grace period” under paragraph 39E before imposing bail, nor to anticipate potential future applications.
• The doctrine of “historic injustice” or “historical injustice” (as explained in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC)) was irrelevant; this was not an Article 8 proportionality appeal but a judicial review about Rules and bail powers, and in any event there was no injustice because decision 2 was lawful.

The Upper Tribunal was therefore correct to refuse permission on all grounds. The Court of Appeal affirmed that conclusion.

4. Detailed Analysis

4.1 Precedents and Authorities Cited

4.1.1 Status and interpretation of the Immigration Rules

The Court drew on leading authorities concerning the nature and construction of the Immigration Rules:

• Odelola v SSHD [2009] UKHL 25; [2009] 1 WLR 1230 – confirms that the Immigration Rules are not delegated legislation but statements of policy under the Immigration Act 1971.
• R (Alvi) v SSHD [2012] UKSC 33; [2012] 1 WLR 2208 – holds that any condition to be satisfied as a prerequisite for leave must be contained in the Rules; requirements not found in the Rules but only in policy cannot be relied upon.
• Mahad v ECO [2009] UKSC 16; [2010] 1 WLR 48 – Lord Brown explained that the Rules are to be construed “sensibly according to the natural and ordinary meaning” of the words used, recognising their nature as policy statements. Courts seek the objective intention of the Secretary of State from the wording of the Rules, not from extraneous policy materials.
• R (Wang) v SSHD [2023] UKSC 21; [2023] 1 WLR 2125 – Lord Briggs reaffirmed that, subject to a possible relaxation of strictness, general principles of statutory construction apply to the Rules. Interpretation remains purposive, but grounded in the text.

The Court of Appeal used these cases to emphasise two key interpretive points:

1. The starting point is always the words of the Rule itself; one does not start from a free-floating purpose or from external policy documents.
2. The Rules themselves constitute the relevant policy; the Secretary of State’s separate policy guidance cannot override or recast the meaning of clear Rule text.

4.1.2 Section 3C, notices, and the end of leave

The Court relied on the statutory / regulatory framework governing continuation of leave:

• Immigration Act 1971, section 3C – extends a person’s existing leave pending a decision on an in-time variation application, and (where applicable) pending appeals or administrative reviews.
• Immigration (Control of Leave) (Notices) Regulations 2006 (SI 2006/2170) – provide that an application is “decided” for section 3C purposes when notice of the decision is given in accordance with:
  • the Immigration (Notices) Regulations 2003 (SI 2003/658) – which regulate service and content of appealable notices; or
  • section 4(1) of the 1971 Act where no such notice is required.

Applying these instruments, the Court held that Ms Kaur’s section 3C leave ended immediately upon electronic service of decision 1 on 28 April 2023. This is crucial: it made her an overstayer on 28 April itself, not from the following day.

4.1.3 Removal, detention and immigration bail

The Court set out the removal/detention powers:

• Schedule 2 to the Immigration Act 1971 (via section 4(2)) – paras 8 and 9 provide for removal of those refused leave to enter and illegal entrants; para 16(2) permits detention where there are reasonable grounds for suspecting a person is removable under those paragraphs.
• Immigration and Asylum Act 1999, section 10 – allows removal of persons unlawfully present (requiring but lacking leave).
• Nationality, Immigration and Asylum Act 2002, section 62 – empowers the Secretary of State to detain pending removal; it incorporates certain Schedule 2 provisions.

Immigration bail is governed by:

• Immigration Act 2016, Schedule 10 – which replaced former powers of temporary admission/release and bail.
  • Paragraph 1(1): bail may be granted where the person is being detained under specified provisions.
  • Paragraph 1(2): bail may also be granted where a person is liable to detention under those provisions, even if not currently detained.
  • Paragraph 1(5): bail can continue even if the person can no longer be detained, so long as they remain liable to detention or deportation is being considered.

The key interpretive authority here is:

• R (Kaitey) v SSHD [2021] EWCA Civ 1875; [2022] QB 695 – the Court of Appeal held that “liable to detention” in Schedule 10 means liable in principle, not that detention would necessarily be lawful when judged against constraints such as the Hardial Singh principles (reasonable period for removal, etc.).

This means the Secretary of State can validly grant immigration bail to a person who could not currently be detained lawfully, provided they fall within the relevant category of those who could be detained in principle.

4.1.4 “Historic” and “historical” injustice

The Court engaged with the Upper Tribunal’s analysis in:

• Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC) – which distinguishes:
  • “Historic injustice” – systemic or group-based historic wrongs later acknowledged by the state (e.g. certain cohort schemes).
  • “Historical injustice” – individual cases where a person has suffered due to wrongful operation (or non-operation) of immigration functions, potentially relevant to Article 8 proportionality assessments.
• Ahsan v SSHD [2017] EWCA Civ 2009; [2018] Imm AR 531 – a case about allegations of cheating in TOEIC English tests, cited in Patel as an example where wrongful decision-making may give rise to a “historical injustice” affecting the Article 8 balance.
• R (S) v SSHD [2009] EWCA Civ 142 – referred to by Ms Kaur for the proposition that past failures by the Secretary of State to apply policy can be relevant when exercising discretion (e.g. to grant ILR), although that does not guarantee a particular outcome.

The Court of Appeal held that this “historic/historical injustice” discourse is largely confined to Article 8 proportionality cases and is not directly applicable to a judicial review about the interpretation of Rules and the lawfulness of an immigration bail decision.

4.2 Legal Reasoning on Paragraph SW2.2 (Ground 1)

4.2.1 The text of SW2.2 and its structure

Paragraph SW2 of Appendix Skilled Worker reads:

SW2.1 The applicant must not fall for refusal under Part 9: grounds for refusal.

SW2.2 If applying for permission to stay, the applicant must not be:

(a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or

(b) on immigration bail.

The Court characterised this as creating three separate suitability bars:

1. Falling within Part 9 grounds for refusal (SW2.1) – an unqualified bar.
2. Being “in breach of immigration laws” (SW2.2(a)) – a bar qualified by an exception for certain overstaying covered by paragraph 39E.
3. Being on immigration bail (SW2.2(b)) – an unqualified bar.

Two features of the drafting were decisive:

• The use of the disjunctive “or” between sub-paragraphs (a) and (b). This signals that either condition is sufficient to cause failure on suitability grounds.
• The express reference to paragraph 39E appears only in SW2.2(a). No such language qualifies SW2.2(b). There is no cross-referencing, proviso, or saving clause suggesting that the paragraph 39E exception extends to applicants on immigration bail.

The Court stressed that to reach Ms Kaur’s preferred interpretation, the structure of SW2.2 would have had to be written differently – for example by adding words such as “unless paragraph 39E applies” to SW2.2(b), which the Secretary of State did not do.

4.2.2 Paragraph 39E as a procedural “exception” only where adopted by a Rule

Paragraph 39E, headed “Exceptions for Overstayers”, defines when certain periods of overstaying may be disregarded, typically where:

• an application is made within 14 days of leave expiring and good reason is shown (sub-para (1)); or
• a further application is made within 14 days of a refusal/rejection of an in-time application or conclusion of appeal/AR processes (sub-para (2)).

The Court described paragraph 39E as:

• a procedural mechanism; and
• having no independent legal effect unless another Rule adopts it as a qualification or exception.

In SW2.2(a), the Secretary of State has chosen to adopt paragraph 39E in a limited way:

…in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded.

So the “disregard” exists only because SW2.2(a) says so. Paragraph 39E itself does not create a free-standing “right to have an application considered on the merits” or a general amnesty for short overstays. It operates only to the extent and in the contexts where a substantive Rule cross-refers to it.

4.2.3 Rejection of Ms Kaur’s purposive and policy-based arguments

Ms Kaur’s core submission was that:

• the Explanatory Memoranda introducing and then amending paragraph 39E showed a policy of encouraging further applications within 14 days of refusal and of “forgiving” short periods of overstaying;
• anyone falling within paragraph 39E should have their application considered “on its merits”; and
• accordingly, paragraph SW2.2(b) must be read down, or words implied, so that immigration bail is not a bar where paragraph 39E applies.

The Court rejected this line of argument on several levels:

1. The proper starting point is the text of the Rule, not external policy documents. The Rules themselves are the Secretary of State’s policy statements.
2. Explanatory Memoranda cannot override the ordinary meaning of clear Rule language, particularly where:
   • the drafting of SW2.2 is unambiguous; and
   • its structure deliberately distinguishes between breach of immigration laws and immigration bail.
3. A “purposive” interpretation still must be anchored in the words used. There is no textual basis for treating paragraph 39E as an overriding norm that neuters other suitability requirements or requires SW2.2(b) to be read as subject to paragraph 39E.

The Court also dealt with the alleged “anomaly” that a person who is within paragraph 39E (hence apparently encouraged to apply) might nonetheless be refused because they are on immigration bail. The Court’s answer was straightforward:

• It is inherent in SW2.2 that multiple suitability conditions may need to be satisfied. The fact that one bar is mitigated (overstaying being disregarded) does not guarantee success if another independent bar applies.
• The policy decision underlying SW2.2 is that persons whom the Secretary of State has placed on immigration bail should not benefit from the paragraph 39E disregard in the Skilled Worker route. That was an explicit choice, and the court’s task is to give effect to it.

In short, the Court held that:

When both SW2.2(a) (as modified by 39E) and SW2.2(b) are engaged, either is sufficient to defeat the application. The fact that overstaying is disregarded does not negate the independent bail bar.

4.3 Lawfulness of the Immigration Bail Decision and Timing (Grounds 2, 3 and 5)

4.3.1 When did Ms Kaur’s leave end and overstaying begin?

A central plank of Ms Kaur’s challenge to immigration bail was the assertion that she still had section 3C leave on 28 April 2023, and only became an overstayer on 29 April, such that she was not yet liable to detention or bail on the date bail was granted.

The Court rejected this point firmly:

• Under section 3C and the 2006/2003 Regulations, leave is extended until the moment the variation application is decided, i.e. when notice of the decision is given in accordance with the Regulations.
• Decision 1 was electronically served on 28 April 2023. Therefore Ms Kaur’s leave (as extended by section 3C) ended immediately on service that day.
• From that moment she required leave but no longer had it; she was an overstayer and thus “unlawfully” in the UK for removal purposes.

As soon as she became an overstayer, she was:

• liable to removal under section 10 of the 1999 Act and associated provisions; and
• therefore liable to detention pending removal.

That liability to detention in turn triggered the availability of immigration bail under paragraph 1(2) of Schedule 10 to the 2016 Act.

4.3.2 “Liable to detention” and the scope of bail powers

Drawing on Kaitey, the Court reiterated that:

• “Liable to detention” in Schedule 10 is a threshold condition satisfied when the statutory removal/detention provisions could in principle apply to the person.
• It does not mean the person will or must be detained, or even that present detention would necessarily be lawful under broader public law and Article 5 constraints (such as the Hardial Singh principles).

Thus, on 28 April 2023:

• Ms Kaur was an overstayer, liable to removal.
• She was therefore “liable to detention” within the meaning of Schedule 10.
• The Secretary of State was “unarguably entitled” to:
  • detain her pending removal; or
  • instead, place her on immigration bail as an alternative to detention.

The Court concluded there was no legal error in decision 2. In particular, Ms Kaur’s argument that bail should only have been possible from 29 April was unsustainable.

4.3.3 No obligation to consider potential future applications (paragraph 39E) before granting bail

Ms Kaur further argued that the Secretary of State, before putting her on bail, should have considered:

• that the overall policy (as reflected in paragraph 39E) allowed 14 days for a further application; and
• that she might exercise this right, making it inappropriate or unfair to place her on bail.

In argument, this logic led to the extreme position that the Secretary of State could never lawfully place someone in Ms Kaur’s position on immigration bail until 14 days after refusal of their application, because until then they might make a fresh in-time application under paragraph 39E.

King LJ highlighted the practical difficulty: the Secretary of State cannot know whether a further application will be made. The Court held:

• The possibility of a future application within the paragraph 39E window is not a material consideration the Secretary of State must take into account when deciding whether to grant bail.
• Requiring the Secretary of State to defer bail for 14 days would significantly and unjustifiably undermine the effectiveness of the bail regime.
• Such a rule would also amount to an impermissible fettering of the broad bail power in Schedule 10.

Therefore, the grant of bail on 28 April 2023 was not flawed by any failure to consider the possibility of a future Skilled Worker application.

4.3.4 Delay and the bar on collateral challenges (Grounds 2 and 5)

The Court gave a strong reminder of basic judicial review principles:

• A decision amenable to judicial review (here, decisions 1 and 2) must be challenged promptly and in any event within 3 months.
• Ms Kaur did not challenge decision 1 or decision 2 within that period, did not plead such a challenge in her original claim form, and did not apply for an extension of time, nor attempt to explain her delay.
• In such circumstances, the law treats the earlier decision as effectively unimpeachable: it is presumed to be lawful.

The corollary is that a claimant cannot, in a later challenge to a different decision (here, decision 3), mount an indirect or “backdoor” attack on an earlier one which has crystallised through lack of timely challenge.

The Court put it bluntly:

If a decision is not challenged in a timely way, it is presumed to have been a lawful decision. Any different approach would completely undermine the principle that legal challenges to decisions by public bodies must be made promptly.

Accordingly:

• The UT was under no obligation to analyse the lawfulness of decision 2.
• The UT lacked power to extend time for challenging decision 2 where no extension was sought and no explanation provided.

Grounds 2 and 5, which alleged error by the UT in declining to go behind decision 2 or extend time, therefore failed.

4.4 “Historic / Historical Injustice” and its Limited Role (Ground 3)

Ms Kaur sought to characterise her situation as an “historic injustice” or “historical injustice”, claiming that the allegedly wrongful grant of bail deprived her of the opportunity to make a further application under paragraph 39E.

The Court, following Patel, explained:

• “Historic injustice” – typically involves a recognised, group-level injustice where the state later acknowledges systemic wrongs (e.g. certain cohorts of migrants).
• “Historical injustice” – individual cases where the Secretary of State’s wrongful operation of immigration functions in the past may reduce the weight of immigration control in an Article 8 proportionality balancing exercise.

The present case, however:

• was not an Article 8 appeal involving proportionality;
• did not involve any acknowledged systemic wrong; and
• concerned the interpretation of Rules and legality of bail, not discretionary balancing.

The Court held that Patel’s “historic/historical injustice” framework was therefore irrelevant to the issues on appeal. Even if it were relevant, Ms Kaur could not show any injustice because:

• her section 3C leave ended on 28 April 2023 upon service of decision 1;
• from that moment she was lawfully “liable to detention”; and
• the decision to grant immigration bail was lawful in light of that status and the Kaitey interpretation of “liable to detention”.

Consequently, there was no “wrongful operation” of immigration functions and no basis on which any Article 8-type injustice analysis could be imported into this judicial review.

4.5 Alleged Failure to Take Relevant Considerations into Account (Ground 4)

Ground 4 was under-developed in Ms Kaur’s written and oral submissions. To the extent it argued that the Secretary of State failed to consider the impact of bail on future applications (or failed to consider a 14-day paragraph 39E “grace period”), the Court rejected it for reasons already discussed:

• The potential for future applications is not a relevant consideration the Secretary of State must have regard to when granting bail.
• Requiring such consideration would excessively constrain Schedule 10 powers and undermine the purpose of the bail regime.

The Court therefore dismissed ground 4 as well.

5. Impact and Significance

5.1 For Skilled Worker applicants and sponsors

The judgment has immediate practical consequences for migrants and their sponsors:

• Being on immigration bail is a hard suitability bar for Skilled Worker permission to stay. A person on bail cannot meet SW2.2(b), even if:
  • they fall within the paragraph 39E overstayer exception; or
  • their overstaying is short and explicable.
• Paragraph 39E does not guarantee that an application will be considered “on its merits”. It only prevents certain periods of overstaying from counting as a breach of immigration law in contexts where a Rule says so.
• Applicants who suspect or know they have been placed on immigration bail must be alert to the fact that many in-country routes, including Skilled Worker, contain bail-related suitability bars. Any application made whilst on bail is likely to fail regardless of other merits.

For sponsors, this ruling underscores the importance of verifying an applicant’s bail status before proceeding with sponsorship and Skilled Worker applications.

5.2 For the Home Office

The decision effectively endorses a policy architecture whereby:

• The Secretary of State can:
  • refuse an application,
  • immediately place the person on immigration bail upon overstaying, and
  • thereby make certain in-country routes (like Skilled Worker) unavailable in practice.
• The Home Office is under no duty to:
  • delay imposing bail for 14 days; or
  • consider the hypothetical possibility of a future application under paragraph 39E.
• The Rules can legitimately be structured so that paragraph 39E applies only in defined and limited ways, without being a general “amnesty” for short overstaying.

In strategic terms, the Home Office can use immigration bail as a robust mechanism to prevent those without leave from switching into or extending certain in-country routes, notwithstanding the existence of the 39E framework.

5.3 For judicial review practice

The judgment is also a clear reminder of fundamental public law discipline:

• Promptness and finality – Claimants must challenge adverse decisions promptly (and within 3 months). Failure to do so will usually bar collateral attacks on those decisions in later proceedings.
• Framing challenges correctly – If a claimant wishes to allege unlawfulness in a bail decision or earlier refusal, this must be expressly pleaded, and any delay explained with a specific application for extension of time.
• Limits on “historic injustice” – That concept is confined largely to Article 8 balancing in statutory appeals, not a generalised principle allowing stale decisions to be revisited through later judicial review claims.

Practitioners should be cautious about attempting to relitigate the lawfulness of earlier unchallenged decisions via challenges to later consequential decisions; courts are likely to treat such attempts as impermissible collateral attacks.

5.4 Possible criticisms and policy tensions

While legally coherent, the judgment may be criticised from a fairness or policy perspective:

• It accentuates a tension between:
  • the apparent policy in paragraph 39E to allow migrants, within 14 days, to regularise status after refusal; and
  • the practical effect that, once immigration bail is imposed, some of the main in-country routes are closed off despite paragraph 39E.
• It reinforces a strong preference in the Rules for those on bail to leave the UK or progress down removal/deportation pathways rather than switching into work routes.

Any rebalancing of that tension would require legislative or Rules-level reform rather than judicial reinterpretation; the Court declined to engage in quasi-legislative rewriting of clear Rule text.

6. Complex Concepts Explained

6.1 Section 3C leave

Section 3C leave is a statutory mechanism that:

• automatically extends a person’s existing leave to enter or remain when they make an in-time application to vary that leave; and
• continues the leave while the application is undecided and, if there is a right of appeal or administrative review, while that right could be exercised or proceedings remain pending.

Once the application is decided (as defined by the 2006 and 2003 Regulations), section 3C leave ends immediately. There is no extra “grace day” unless the Rules or legislation expressly provide one. The person then becomes an overstayer if no fresh leave is granted.

6.2 Paragraph 39E – the “overstayer exception”

Paragraph 39E does not give a direct right to stay or to have an application granted. Instead, it:

• defines situations where a period of overstaying may be disregarded for certain purposes, typically where a further application is made within 14 days and procedural conditions are met; and
• only operates when another Rule chooses to treat such overstaying as disregarded by cross-referring to 39E.

In SW2.2(a), paragraph 39E means that a short period of overstaying covered by 39E will not count as being “in breach of immigration laws” for the Skilled Worker suitability assessment. But it does not neutralise other independent bars such as immigration bail.

6.3 Suitability vs eligibility in the Rules

Many Immigration Rules distinguish between:

• Suitability requirements – concern whether a person is the kind of person the system is prepared to grant leave to, regardless of skills, income or ties. They often focus on:
  • criminality;
  • immigration history (e.g. deception, breaches);
  • current status (e.g. on immigration bail).
• Eligibility requirements – the substantive criteria for the route (e.g. job offer, salary threshold, English language).

Suitability is usually considered first. If the applicant fails suitability (as Ms Kaur did under SW2.2(b)), the decision-maker is not required to assess eligibility at all.

6.4 Immigration bail

Immigration bail under Schedule 10 of the Immigration Act 2016 is a legal status that:

• can be imposed on persons being detained or liable to detention under specified immigration powers;
• may include conditions (e.g. reporting, residence, work restrictions); and
• continues even where the person might not currently be lawfully detainable, provided they remain “liable to detention” in principle.

Crucially, some Immigration Rules (including Appendix Skilled Worker) treat being on immigration bail as a ground for refusal on suitability. Bail is not a neutral or benign status; it can significantly constrain future immigration options.

6.5 “Liable to detention”

As confirmed in Kaitey, a person is “liable to detention” where:

• the statutory power to detain could apply to them in principle (e.g. they are an overstayer, or subject to removal powers);
• even if practical or human rights reasons might, at a given time, render actual detention unlawful or inappropriate.

This broad reading allows bail to be used flexibly as an alternative or adjunct to detention, without requiring contemporaneous proof that detention would fully satisfy all Article 5 and public law constraints.

6.6 Judicial review time limits and collateral challenges

Judicial review must be:

• filed promptly and in any event within three months of the decision under challenge;
• supported by an application for extension of time if filed late, with reasons for delay.

If no challenge is brought within time, the decision stands and is treated, for practical purposes, as lawful. Claimants cannot then:

• attack that earlier decision indirectly by challenging a later decision that is premised on it; or
• ask the court to treat the earlier decision as unlawful in substance when no timely challenge was made.

This preserves legal certainty and prevents endless relitigation of administrative decisions.

7. Conclusion: Key Takeaways

The Court of Appeal’s decision in Kaur clarifies and reinforces several important points of immigration law:

1. Immigration bail is an independent bar to a Skilled Worker permission to stay application under Appendix Skilled Worker. Paragraph SW2.2(b) operates autonomously and is not softened by paragraph 39E.
2. Paragraph 39E is procedural, not substantive. It creates no general entitlement to have post-refusal applications determined on their merits; it only operates where and as a Rule chooses to adopt it.
3. Section 3C leave ends on service of the refusal notice in accordance with the 2006/2003 Regulations. From that moment, absent fresh leave, the person is an overstayer, liable to removal and to detention, and therefore eligible for immigration bail under Schedule 10.
4. No obligation exists to delay immigration bail to preserve a paragraph 39E “grace period”, nor to consider possible future applications before imposing bail.
5. Prompt judicial review is essential. Failure to challenge an earlier decision (such as a bail decision) in time means it will be treated as lawful and cannot be collaterally attacked in proceedings against later decisions.
6. “Historic/historical injustice” is a limited doctrine, principally relevant to Article 8 proportionality analysis in statutory appeals. It does not provide a general route for reopening unchallenged decisions in judicial review.

In the broader legal context, Kaur reaffirms the courts’ commitment to textual fidelity in interpreting the Immigration Rules and to procedural discipline in judicial review. It confirms that the Secretary of State may, through clear Rule-drafting, prioritise strict control over the immigration status of those on bail, even where other provisions (like paragraph 39E) appear facilitative. Any change to that policy balance will require legislative or Rules reform, not judicial re‑engineering of clear wording.