Introduction
This judicial review concerned the refusal of an Indian national’s application to extend her leave under the former Tier 1 (Entrepreneur) route. The central issue was whether outdated Home Office guidance describing a COVID-19 concession created a legitimate expectation that the concession remained available, even though it had been withdrawn before the application was made.
The petitioner also argued that the Secretary of State had acted irrationally, failed to consider relevant payroll material, and overlooked paragraph 245AA of the Immigration Rules, which permitted limited flexibility where specified documents were missing or submitted in the wrong format.
Lord Harrower rejected each ground. Guidance expressly stated to be subject to change and to be read with the Immigration Rules could not amount to a clear, unambiguous and unqualified promise that a withdrawn concession remained operative. In any event, the application independently failed because the petitioner had not demonstrated the required creation of two equivalent full-time jobs.
Background
The petitioner had entered the United Kingdom as a student and subsequently held leave as a graduate entrepreneur and then as a Tier 1 (Entrepreneur). In September 2023 she applied for an extension based on employment created at a café in Edinburgh.
The applicable requirements included proof that:
- at least two new full-time jobs had been created for settled workers;
- each job had existed for at least 12 months;
- a full-time job comprised at least 30 hours per week or 120 hours per month; and
- the claim was supported by specified evidence, including HMRC real-time information, signed timesheets and proof of settled status.
A temporary COVID-19 concession had allowed non-consecutive periods of employment to be combined. Although that concession was withdrawn on 1 August 2023, an older version of the guidance remained accessible online. It described the concession but also stated that it was correct only at the time of publication, was subject to change, and had to be read with the Immigration Rules.
The Secretary of State initially refused the application in January 2024 and maintained that refusal following several reconsiderations, most recently on 11 August 2025. The final decision accepted additional proof of employees’ settled status but concluded that the evidence still did not establish the equivalent of two full-time jobs for every relevant month. It also identified the absence of compliant real-time information as an additional defect.
Summary of the Judgment
-
No legitimate expectation arose. The guidance did not contain a clear, unambiguous and unqualified representation that the COVID-19 concession remained available. Its express qualifications required applicants to check the current Immigration Rules.
-
The Secretary of State could refer to the contemporaneous webpage. The webpage stating that no COVID-19 concessions remained was consistent with the decision letters and was a source to which the guidance itself directed applicants.
-
There was no unlawful departure from published policy. Properly interpreted, the guidance was subordinate to the Immigration Rules as amended from time to time.
-
The substantive job-creation requirement was not met. Even after all relevant workers were considered, the monthly hours did not establish two equivalent full-time positions.
-
Any documentary error was immaterial. The real-time information issue was only an additional reason for refusal. Correcting it would not cure the independent failure to satisfy the job-creation requirement.
-
Paragraph 245AA did not require approval. Documentary flexibility was discretionary and could not assist an applicant who failed another substantive requirement of the Rules.
The court therefore refused the petition and reserved the question of expenses.
Analysis
1. Legitimate expectation and qualified guidance
The decisive question was not simply whether the old guidance remained accessible, but whether it objectively communicated an unqualified promise that the concession continued to apply.
The court applied the test from R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545: a legitimate expectation must rest upon a representation that is “clear, unambiguous and devoid of relevant qualification”.
The guidance failed that test because it expressly warned that it was subject to change and directed applicants to read it with the Immigration Rules. Those statements were legally significant qualifications. An applicant consulting the Rules would have discovered either that the concession had been withdrawn or, at minimum, that the old guidance could not safely be treated as a definitive statement of current policy.
The judgment therefore distinguishes between guidance that contains an apparently firm and current commitment and historical guidance that expressly reserves the possibility of change. Continued online availability alone does not convert the latter into a binding promise.
2. The authorities relied upon
Re Finucane's application for judicial review (Northern Ireland) [2019] UKSC 7, [2019] HRLR 7
The petitioner relied on this authority for the proposition that a public authority should not depart from a clear and unambiguous undertaking unless it can demonstrate that doing so is fair. Lord Harrower did not reject that principle. Instead, he found that its threshold condition was absent: the Home Office had given no sufficiently unqualified undertaking that the COVID-19 concession would continue.
This case supported the argument that a public authority should ordinarily follow its published policy unless there is a good reason to depart from it. The court held that there had been no departure from policy. Read as a whole, the guidance made itself subject to the current Immigration Rules. The policy could not properly be interpreted as preserving a concession that the Rules had withdrawn.
Absalom v Governor of Kilmarnock Prison [2010] CSOH 109
The petitioner invoked this decision to resist reliance on the Home Office webpage because it had not been expressly cited in the refusal letters. Lord Harrower distinguished it. In Absalom v Governor of Kilmarnock Prison, the later explanation was inconsistent with contemporaneous material. Here, the webpage was contemporaneous, applicants were directed to it by the guidance, and its contents were consistent with the reasons already given.
The court was therefore not permitting the Secretary of State to invent a new justification after the event. It was allowing reference to material that confirmed the existing explanation.
Applying Lord Brown’s formulation, reasons are adequate where they enable the affected person to understand why the matter was decided as it was. The final review decision met that standard: it identified both the failure to establish the required job creation and the documentary deficiency.
3. Documentary flexibility under paragraph 245AA
Paragraph 245AA allowed the decision-maker, in specified circumstances, to seek corrected documents or overlook an error where the missing information was verifiable elsewhere. Crucially, the provision used discretionary language and allowed an application to be granted only where the applicant satisfied all other requirements of the Rules.
Even if the payroll records verified information missing from the real-time submissions, the petitioner still had not proved the equivalent of two full-time jobs. Paragraph 245AA could address an evidential defect; it could not replace substantive compliance.
4. Materiality and independent reasons for refusal
The court treated the insufficient job creation as the primary and independently sufficient reason for refusal. The defect concerning the form of the HMRC evidence was additional.
Accordingly, even if the Secretary of State had mishandled the documentary issue, that error would not have affected the outcome. Judicial review does not ordinarily justify reduction of a decision for an error that is immaterial to an independently lawful basis for the same result.
5. Rationality
The petitioner’s irrationality argument focused on the alleged rigidity with which the payroll and real-time information had been treated. However, there was no developed challenge to the separate calculation showing that the employment hours did not satisfy the monthly job-creation requirement. The refusal therefore remained rational on its principal ground.
Complex Concepts Simplified
- Legitimate expectation
- A protection arising where a public authority makes a sufficiently clear and unqualified promise about how it will act.
- Judicial review
- A process examining whether a public decision was lawfully made, rather than reconsidering the application from the beginning.
- Reduction
- The Scottish remedy by which an unlawful decision is set aside.
- Wednesbury irrationality
- A demanding standard under which a decision is unlawful because it falls outside the range of decisions reasonably open to the authority.
- Specified documents
- Evidence that the Immigration Rules require in a particular form. Relevant information may still fail to qualify if the prescribed evidence is not supplied.
- Material error
- An error capable of affecting the outcome. An error is generally immaterial where another lawful and sufficient reason independently supports the decision.
Impact
The decision confirms that immigration guidance must be read as a whole and within its stated relationship to the Immigration Rules. Historical guidance remaining online will not necessarily create a legitimate expectation where it expressly warns that it is subject to change and directs applicants to current legal provisions.
The judgment also limits the reach of documentary flexibility. Paragraph 245AA may cure some evidential imperfections, but it does not excuse failure to meet the underlying immigration requirement.
More broadly, the decision illustrates the importance of independent grounds of refusal. Where one lawful reason is sufficient and unchallenged, an alleged defect in an additional reason may not justify judicial review. As an Outer House judgment applying established authority, the decision is principally persuasive guidance rather than a reformulation of the law of legitimate expectation.
Conclusion
The key principle is that guidance expressly made subject to change and to the current Immigration Rules cannot reasonably be treated as an unqualified promise that an earlier concession remains available. Applicants must establish substantive compliance with the Rules in force when they apply.
The petition also failed because the employment evidence did not establish two equivalent full-time jobs. Any possible issue concerning the format of the HMRC records was therefore immaterial, and the Secretary of State’s reasons were adequate. The petition was refused, with expenses reserved.