Reasons and “Engagement” in Invalid Skilled Worker Switching Applications: Arguable Duty to Explain Non-Waiver and LOTR Decisions
Case: Kalidasan & Ors v Secretary of State for the Home Department [2026] EWCA Civ 561
Court: Court of Appeal (Civil Division) (Arnold LJ, Elisabeth Laing LJ, Warby LJ)
Date: 11 May 2026
Appeals from: Upper Tribunal (Immigration and Asylum Chamber) refusals of permission to apply for judicial review (s.15(1) Tribunals, Courts and Enforcement Act 2007)
1. Introduction
This linked appeal concerns four applicants who entered (or were present) in the UK with Student leave for specific courses, did not commence those courses (each alleging they were defrauded of course fees), remained in the UK, and later sought to “switch” into the Skilled Worker route. After the introduction of paragraph SW1.5A into Appendix Skilled Worker (effective 17 July 2023), their switching applications were treated as failing validity requirements because they had not completed the course for which Student leave was granted.
The central question in the Court of Appeal was not the substantive immigration merits, but whether it was arguable that the Secretary of State, when refusing (or rejecting as invalid) these applications, was required to give adequate reasons:
- for declining to waive invalidity under paragraph SW1.6 (a power recognised in Islam v Secretary of State for the Home Department [2025] EWCA Civ 45), and/or
- for any concurrent refusal to grant leave to remain outside the Rules (“LOTR”).
Elisabeth Laing LJ concluded the claims were arguable on a composite ground and granted permission to apply for judicial review, remitting the cases to the Upper Tribunal.
2. Summary of the Judgment
- The Court of Appeal reiterated that, due to a legislative “gap”, it cannot itself grant permission to apply for judicial review at the permission-to-appeal stage, but after granting permission to appeal and hearing the appeal it can grant relief the Upper Tribunal could have granted (ss.15(1), 16(8) of the 2007 Act; applying R (NB) Algeria v Secretary of State for the Home Department [2012] EWCA Civ 1250; [2013] 1 WLR 31).
- On the arguability threshold, it was plausible that where the Secretary of State goes beyond a bare invalidity rejection and “engages” with an applicant’s arguments/evidence, that may amount to considering the power to waive invalidity; if so, an obligation to explain the approach and outcome may arise.
- It was also arguable that decision-makers failed to distinguish clearly between (i) waiving invalidity and (ii) granting LOTR, and that reasons may be required for each where they have been considered (even if overlapping).
- The Court granted permission to apply for judicial review in all four cases and remitted them to the Upper Tribunal, allowing amendment of grounds to reflect the composite ground.
3. Analysis
3.1 Procedural and jurisdictional framework: why the Court remitted
The decision sits within a distinctive appellate structure for Upper Tribunal judicial review permission decisions. Relying on R (NB) Algeria v Secretary of State for the Home Department [2012] EWCA Civ 1250; [2013] 1 WLR 31, the Court confirmed:
- At the permission-to-appeal stage, it can only grant permission to appeal, not permission to apply for judicial review.
- Once permission to appeal is granted and the appeal is heard, it can grant relief the Upper Tribunal could have granted (s.16(8) of the 2007 Act).
Although the Court could have proceeded to decide the judicial review merits after granting permission to apply, it declined to do so because the Secretary of State would be disadvantaged (notably in responding with detailed grounds and evidence). This reinforces a practical point: where the dispute turns on nuanced questions of “engagement”, reasons, and the content of policies, a structured first-instance adjudication in the Upper Tribunal remains important.
3.2 The legal setting: Skilled Worker validity and the “filter” function
The relevant Rule changes were designed to prevent switching from Student to Skilled Worker before completion of the course. The key provisions were:
- SW1.5A (Validity): for an applicant who “has, or last had, permission as a Student”, a condition must be met at the date of application—here, completion of the course associated with that Student permission.
- SW1.6: an application that does not meet all validity requirements “may be rejected as invalid and not considered”.
In these appeals, the applicants had not started (and therefore had not completed) their courses, so SW1.5A was not met.
3.3 Precedents cited and how they shaped the Court’s approach
(a) Islam v Secretary of State for the Home Department [2025] EWCA Civ 45
Islam is the pivotal authority interpreting SW1.6. It held that where an application is invalid under the validity requirements, SW1.6 permits the Secretary of State to reject it “without any consideration whatever of the underlying merits” (as a “filter”), and that in this context “may” means “is absolutely entitled to”.
Two features of Islam mattered in Kalidasan:
- No general duty to consider waiver for every invalid application: the Secretary of State need not decide whether to waive invalidity in each case, nor demonstrate such consideration, nor explain in every case why waiver was not granted.
- Recognition of a power to waive invalidity: Andrews LJ (with agreement from Peter Jackson LJ on relevant paragraphs) distinguished between (i) treating an invalid application as valid and (ii) “waiving” invalidity; the latter was “obviously” within the Secretary of State’s capacity, but does not generate a universal duty to consider it.
Elisabeth Laing LJ’s contribution is to identify an arguable interaction between this “no duty in every case” principle and the reality of decision letters that nonetheless discuss an applicant’s arguments. The Court treated it as arguable that once the Secretary of State chooses to do more than apply the filter, fairness/rationality may require an explanation of how discretion was approached.
Behary was cited for principles governing LOTR (leave outside the Rules). Burnett LJ confirmed:
- There is not an invariable obligation to consider LOTR where it is not requested.
- Where LOTR is requested, the decision-maker must (even briefly) deal with material relied on in support.
- Exceptionally, facts may be so striking that it could be irrational not to consider LOTR (or seek clarification), even without an explicit request.
In Kalidasan, the Court noted its impression that each applicant did request LOTR (at least in correspondence), without finally determining evidential disputes. That observation supports arguability of a reasons obligation in relation to LOTR, distinct from the SW1.6 waiver issue.
This authority anchored the Court’s description of the statutory “gap” affecting what relief can be granted at the permission-to-appeal stage. It is an enabling precedent for the procedural route taken: permission to appeal first; substantive relief (including granting permission to apply for judicial review) after the appeal hearing.
3.4 The Court’s legal reasoning: “engagement” as a trigger for arguable reasons duties
The reasoning is careful and permission-stage cautious. The Court did not decide the content or scope of any duty to give reasons. Instead, it identified arguable propositions that merit determination by the Upper Tribunal:
- Arguable waiver-by-engagement: if the Secretary of State, faced with an invalid application, nonetheless engages in the decision with the applicant’s arguments or evidence supporting the application, it is arguable she has elected to consider (and thus exercise) the discretion/power to waive invalidity identified in Islam.
- Arguable reasons obligation once discretion is in play: if she has adverted to that power and decided not to waive invalidity, it is arguable she must explain her approach (and not merely state the outcome).
- Need to distinguish two discretions: it is arguable that decision-makers blurred (i) the waiver of invalidity (a gateway/validity issue) and (ii) LOTR (a separate statutory power outside the Rules under s.3(1) Immigration Act 1971). Where either discretion is considered, reasons may be required for each (even if overlapping).
Importantly, Elisabeth Laing LJ also identified a strategic implication: post-Islam, the Secretary of State may reduce litigation risk by confining an invalidity decision to the “filter” rationale (invalid, not considered further). If she says more, she may create a justiciable footprint requiring explanation.
3.5 The role of policies and the “reasons gap”
The Court was referred to two policies, including Leave Outside the Rules (LOTR) on compelling and compassionate grounds. The Secretary of State argued (by reference to the policy) that these were not suitable cases for LOTR. The Court’s point was narrower: even if that is right, the impugned decisions did not contain that kind of explanation. That absence helped make the challenges arguable at the permission stage.
3.6 Impact: what changes (or may change) after Kalidasan
Although formally a permission decision, Kalidasan signals a potentially important operational and doctrinal development:
- Decision-letter discipline for invalid applications: the case highlights litigation risk where invalidity decisions “stray” into merits-adjacent discussion. If decision-makers engage, applicants may argue that discretion was considered and must be rationally explained.
- Clear separation of analytical tracks: tribunals may increasingly require the Secretary of State to keep distinct (a) SW1.6 waiver decisions and (b) LOTR decisions, both substantively and in reasons.
- Enhanced justiciability of “non-decisions”: the case frames the boundary between “no duty to consider” (per Islam) and “duty to explain what you chose to consider”. That boundary is likely to recur in challenges to “invalid application” handling across routes that use validity filters.
4. Complex concepts simplified
- Validity requirement: a threshold condition for an application to be treated as properly made. If not met, the application can be rejected without assessing whether the person otherwise qualifies.
- Rejected as invalid vs refused: “rejection” ends the matter at the gateway (often with a fee refund minus an admin charge); “refusal” follows consideration of merits under the substantive criteria.
- Waiving invalidity (SW1.6 context): a discretionary choice to overlook a validity defect and treat the application as eligible for consideration. Islam indicates there is no general duty to consider waiver in every case.
- LOTR (leave outside the Rules): a separate discretionary grant of leave rooted in the Secretary of State’s statutory power (s.3(1) Immigration Act 1971), not in the Immigration Rules. Under Behary, if requested, the Secretary of State must at least briefly engage with supporting material.
- Permission to apply for judicial review: a screening stage; the claimant must show the claim is arguable. The Court of Appeal’s decision here does not decide the claim’s merits.
5. Conclusion
Kalidasan develops the post-Islam landscape by identifying an arguable principle: while the Secretary of State may reject an invalid Skilled Worker switching application without considering the merits, if she nonetheless engages with the applicant’s arguments (thereby arguably considering waiver of invalidity and/or LOTR), she may be required to give adequate reasons for declining to exercise those discretions. The Court granted permission to apply for judicial review and remitted the cases to the Upper Tribunal to decide the scope of any reasons duty and whether it was met on the facts.