The Discretionary Rejection Principle under Immigration Rules Appendix SW 1.6

Introduction

Islam, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 458 concerned Mr Ashraful Islam, a Bangladeshi national who entered the UK in January 2023 on a student visa. In July 2023 he sought to switch into the five-year Skilled Worker route, supported by a Certificate of Sponsorship from a care-worker employer. Three days before his application, however, the Home Office had amended the Immigration Rules (adding paragraph SW 1.5A) to prevent in-course switching by students. The Secretary of State rejected his application as invalid under SW 1.6 and returned his fee. Having failed in the Upper Tribunal, Mr Islam appealed on the ground that the word “may” in SW 1.6 conferred a discretion which the Secretary of State was bound to consider before rejecting his application.

The principal issue on appeal was one of statutory construction and fairness: does paragraph SW 1.6 impose an enforceable duty on the decision-maker to exercise a discretion whether to waive validity requirements, or does it simply permit rejection without further consideration? The Court of Appeal, by a majority, held that SW 1.6 is a procedural filter authorizing the Secretary of State to reject invalid applications outright, and that no public-law duty arises to “consider whether to consider” them.

Summary of the Judgment

The Court of Appeal (Peter Jackson LJ, with Phillips LJ and Andrews LJ agreeing) dismissed Mr Islam’s appeal. Key findings:

Paragraph 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”) authorizes the Secretary of State to reject invalid applications without further inquiry.
The word “may” in this context denotes permission or entitlement, not a mandatory residual discretion that must be exercised or reasons given.
A purposive interpretation, informed by language, policy and administrative function, confirms that SW 1.6 operates as a filter to protect Home Office resources and promote fair and timely decision-making.
Granting a duty to consider invalid applications would defeat the purpose of the validity filter, impose a new decision-making stage on every invalid application, and require consideration of substantive merits that the Rules deliberately reserve for valid cases.
There was no arguable ground of irrationality or unfairness in the Secretary of State’s approach, and even if a discretion existed its exercise would not have led to a different outcome.

Analysis

Precedents Cited

MO (Nigeria) v SSHD [2009] UKHL 25: Lord Hoffman emphasized that Immigration Rules are construed against their background, focusing on natural and ordinary meaning within the policy context.
Mahad v Entry Clearance Officer [2009] UKSC 16: Lord Brown held that the Rules should be read sensibly, not with the strictness of statute, and that contrasting language in different parts aids interpretation.
R v SSHD, ex p Doody [1994] 1 AC 531: Established that administrative powers carry a presumption of fairness, but the content of fairness depends on context.
UKUT in Ukus (2012) 307(IAC): A “normally be refused” provision of the Rules connotes a discretion.
R (Balajigari) v SSHD [2019] EWCA Civ 673 and Yaseen v SSHD [2020] EWCA Civ 157: Confirmed that where a power exists, a decision-maker must balance factors and give reasons when refusing under discretionary bars.
R (Behary and Ullah) v SSHD [2016] EWCA Civ 702 and Hippolyte v SSHD [2024] EWHC 2968: Illustrate that the Secretary of State need not “chase shadows” in considering unargued points.

Legal Reasoning

The court’s analysis unfolded in three complementary strands:

Language of the Rule: The court read SW 1.6 “sensibly” and “in its context” (per Lord Brown). The phrasing “validity requirements… may be rejected as invalid and not considered” strongly indicates that the decision-maker is simply permitted, indeed entitled, to dismiss non-compliant applications without any further inquiry.
Policy Background: The Immigration Rules are approved by Parliament to regulate entry and stay under a negative-resolution procedure. The immediate introduction of SW 1.5A and SW 1.6, bypassing the 21-day convention, reflected clear political and policy aims to curb in-course switching. It was widely publicized in Parliament and intended to eliminate a flood of last-minute applications.
Administrative Function: SW 1.6 and its counterparts in other Appendices operate as procedural filters. If officials were required to consider every invalid application, resources would be diverted from merits assessment of valid cases. Fairness demands only that the filter be applied correctly—that is, that validity be assessed—after which no further duty arises.

The court rejected Mr Islam’s “may = must” logic: context and purpose clarify that “may” confers a one-way entitlement to reject. A contrary interpretation would convert the filter into a merits stage and overload the system with extra decision-making steps.

Impact

This judgment crystallizes the doctrine that procedural-validity filters in the Immigration Rules give no standalone public-law rights to applicants whose filings are invalid:

Applicants cannot invoke SW 1.6 to require the Secretary of State to exercise a residual discretion or provide reasons for rejecting invalid applications.
The decision reinforces the distinction between refusal (after full consideration of merits, suitability and eligibility) and rejection (at the threshold for validity).
Immigration practitioners must now advise clients that mistakes in validity may lead to summary rejection without remedy, absent transitional provisions or statutory discretion elsewhere.
Future challenges to filter provisions in the Rules will face a high bar: applicants must show that the filter was misapplied, not that it should be bypassed altogether.

Complex Concepts Simplified

Validity vs. Suitability vs. Eligibility: Validity requirements (Appendix SW 1) are threshold checks—forms, fees, biometrics, sponsorship document dates, and status-specific conditions. Suitability requirements (Appendix SW 2) concern good character and lawfulness. Eligibility requirements (Appendix SW 3) relate to points-based criteria (skills, salary, English language).
Filter Mechanism: SW 1.6 works as a “filter”—invalid applications never reach full merits assessment. It conserves resources and protects applicants (by refunding fees minus a small charge) from protracted refusal processes.
“May” vs “Must” vs “Will”: – “Must” creates an obligation. – “Will” expresses a certain outcome when conditions are met. – “May” in SW 1.6 grants permission or entitlement; it does not impose a duty to act.
Judicial Review: A mechanism for reviewing public-law decisions. It does not entitle applicants to merits reconsideration but ensures the decision-maker acts lawfully, fairly and rationally.
Negative Resolution Procedure: Immigration Rules are laid before Parliament and become law unless annulled within a set period. They reflect executive policy approved by Parliament with minimal legislative debate.

Conclusion

Islam v SSHD [2025] EWCA Civ 458 establishes the “Discretionary Rejection Principle” under Appendix SW 1.6: the Secretary of State may, without obligation, dismiss invalid Skilled Worker visa applications at the threshold. The ruling confirms that “may” in a filter provision confers a one-way entitlement to reject, rather than a duty to consider waiving mandatory requirements. It preserves the integrity and efficiency of the immigration application process by keeping invalid cases out of the merits pipeline, subject only to a correct preliminary validity check. For practitioners and applicants alike, the message is clear: compliance with validity requirements is paramount, and challenges to summary rejection will succeed only where the filter itself has been improperly applied.