Summary of Judgment

Factual and Procedural Background

This opinion concerns an appeal by the Appellant against the Upper Tribunal (Immigration and Asylum Chamber) ("the UT") for refusing permission to apply for judicial review of an immigration decision. The Appellant had previously been granted leave as a student with two dependants (referred to in the source as H and C). That leave would have expired on 12 May 2022. Shortly before expiry, the Appellant made an application for leave on human rights grounds ("Application 1"), which had the effect of extending the Appellant's leave under section 3C of the Immigration Act 1971 pending a decision.

The Defendant refused Application 1 on 28 April 2023 (Decision 1) and certified it as "clearly unfounded". At the same time the Defendant issued a Notification of the Grant of Immigration Bail to the Appellant (Decision 2), stating that the Appellant was "liable to be detained because there is a reasonable suspicion that [she] may be liable to removal from the United Kingdom".

The Appellant then made a further application for leave to remain as a skilled worker with dependants ("Application 2") on 12 May 2023. That application was refused in Decision 3 (dated 16 August 2023) on the ground that the Appellant was "on immigration bail" and therefore did not meet Paragraph SW2.2(b) of the Skilled Worker Appendix ("the Appendix") to the Immigration Rules. The decision-maker stated that, because the Appellant did not meet the suitability requirements of the Appendix, it was not necessary to consider eligibility requirements.

The Appellant sought an administrative review of Decision 3 (referred to in the source as Application 3). The Defendant refused that administrative review in Decision 4 (24 November 2023). The Appellant then applied for judicial review of Decisions 3 and 4, advancing four principal grounds including challenges to the construction of the Rules, the lawfulness of Decision 2 (the grant of immigration bail), and the submission that Decision 3 resulted from an "historic injustice".

The UT refused permission to apply for judicial review on the papers and, after a renewal hearing, also refused permission orally. The UT held the Appellant's grounds to be unarguable and concluded that the Appellant had been properly placed on immigration bail. The Appellant obtained permission from Judge Nugee to appeal the UT's refusal; this document records the appellate court's dismissal of that appeal.

Legal Issues Presented

1. What is the meaning and proper construction of paragraph SW2 of Appendix Skilled Worker of the Immigration Rules, and in particular paragraph SW2.2?
2. Whether the Appellant may, in challenging Decision 3, rely on an argument that Decision 2 (the decision to grant immigration bail) was unlawful or that Decision 2 gives rise to an "historic injustice" permitting relief despite delay.

Arguments of the Parties

Appellant's Arguments (as advanced in submissions)

• The Appellant submitted that paragraph 39E and the explanatory memoranda demonstrate a Secretary of State policy of forgiving short periods of overstaying and encouraging timely further applications; therefore those to whom paragraph 39E applies should have their subsequent applications considered on the merits and should not be defeated by paragraph SW2.2(b) when both provisions are engaged.
• It was argued that paragraph SW2.2(b) must be read so as not to apply where paragraph 39E operates — otherwise there is an anomaly whereby the same act of overstaying is both excused by paragraph 39E and yet used as a reason for refusal under paragraph SW2.2(b).
• The Appellant contended Decision 2 (immigration bail) was unlawful for various reasons: that the Defendant lacked power under applicable statutory provisions or failed to follow policy/guidance; that Decision 2 was procedurally unfair because it did not specify the statutory basis for the bail; and that the bail notification was a "tick box" exercise lacking adequate reasons.
• The Appellant further argued that Decision 3 resulted from an "historic injustice" (the allegedly wrongful grant of immigration bail) which deprived the Appellant of the opportunity to make a further in-time skilled worker application benefitting from paragraph 39E.
• The Appellant suggested that, when deciding to grant immigration bail, the Secretary of State should take into account the possibility that the person will make a further application within the period contemplated by paragraph 39E and that failure to do so rendered Decision 2 unlawful or procedurally unfair.

Defendant's Arguments (as recorded)

• The Defendant maintained that paragraph SW2.2 is clear on its natural and ordinary meaning: an applicant "must not be" in breach of immigration laws (subject to the narrow disregard in paragraph 39E) or "on immigration bail". The two sub-paragraphs are separated by "or", and the presence of one ground (including bail) suffices to bar the application.
• The Defendant accepted that Application 2 had been submitted within 14 days of the refusal of an in-time application (relevant to paragraph 39E) but maintained that Decision 3 lawfully refused the skilled worker application because the Appellant was on immigration bail on the relevant date.
• The Defendant's position (endorsed by the UT) was that Decision 2 was lawfully made on 28 April 2023: on that date the Appellant's leave had ended by virtue of electronic notification of Decision 1 and the Appellant was an overstayer liable to detention and removal, such that immigration bail under the statutory scheme was available and lawfully granted.
• The Defendant also submitted that the Appellant's attempt to challenge Decision 2 was time-barred and that the UT was entitled to refuse to consider the lawfulness of Decision 2 because no timely judicial review had been sought and no extension of time had been requested or justified.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Claimant A v Secretary of State for the Home Department [2009] UKHL 25	The Immigration Rules are not delegated legislation.	Used to support the legal status of the Rules as statements of policy rather than delegated legislation when construing requirements in the Rules.
Claimant B v Secretary of State for the Home Department (R (Alvi)) [2012] UKSC 33	The effect of section 3(2) of the 1971 Act: requirements for leave must be stated in the Rules; the Secretary of State cannot rely on a requirement not in the Rules but only in policy.	Relied upon to confirm that substantive conditions must appear in the Rules and that the court should read the Rules themselves as the relevant statement of policy.
Case C (Mahad) [2009] UKSC 16	Approach to construction of the Rules: sensibly according to natural and ordinary meaning, recognising the Rules as statements of administrative policy; intention to be discerned objectively from the words used.	Cited to explain that the Rules should be construed objectively from their wording rather than by reference to external policy considerations.
Case D (Wang v Secretary of State for the Home Department) [2023] UKSC 21	For points-based provisions, the ultimate question is purposive construction: whether provisions were intended to apply to the transaction, viewed realistically; Mahad principles apply.	Used to confirm that general principles of statutory construction apply to the Rules and that purposive interpretation is appropriate where indicated.
Case E (Kaitey) [2021] EWCA Civ 1875	"Liable to detention" in the immigration bail provisions means "liable in principle to detention" — the Secretary of State may grant immigration bail even if a detention, if effected, would not satisfy all fairness/time requirements.	Applied to uphold that the Secretary of State lawfully could grant immigration bail to a person who was liable to detention in principle, even if immediate lawful detention might be problematic under other principles.
R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704	Principles relevant to lawfulness of detention (time limits/reasonableness of detention for removal).	Referred to in the context of explaining that "liable to detention" for the immigration bail regime does not import the full Hardial Singh lawful-detention constraints.
Case F (Patel) [2020] UKUT 351 (IAC)	Discusses "historic injustice" and "historical injustice" in immigration context and their possible relevance to Article 8 proportionality.	Cited by the Appellant; the UT and the court examined distinctions drawn in Patel and held the concept relied on by the Appellant (historic injustice) did not assist the claim in this procedural challenge, and in any event no unlawful past treatment was shown.
Case G (Ahsan) [2017] EWCA Civ 2009	Example of a case about the relationship between judicial review and in-country appeals where alleged wrongful decisions (historical injustice) affected an individual's position.	Referred to as illustrative of the sort of "historical injustice" case; court found those authorities distinguishable and not applicable to the Appellant's attempt to challenge Decision 2 belatedly.
Case H (R (S) v Secretary of State for the Home Department) [2009] EWCA Civ 142 (obiter reference)	Obiter recognition that past erroneous treatment can bear on Article 8 proportionality and on discretionary decisions (context provided).	Mentioned by the Appellant in support of the argument that past error should be relevant to future discretionary decisions; the court found the point inapplicable to the present procedural appeal.

Court's Reasoning and Analysis

The court's analysis proceeded in two main strands: (A) the construction of paragraph SW2.2 of the Skilled Worker Appendix to the Immigration Rules; and (B) whether the Appellant could permissibly mount a belated challenge to Decision 2 (the grant of immigration bail) or claim "historic injustice". The court addressed other subsidiary grounds but these were resolved largely through the same analysis.

Construction of paragraph SW2.2

1. The court began from the text of paragraph SW2.2 and applied established principles for construing the Immigration Rules: the Rules are statements of the Secretary of State's policy and are to be read sensibly according to the natural and ordinary meaning of the words used (drawing on Mahad and related authorities). The court rejected an approach that favoured seeking a separate or external policy purpose divorced from the ordinary meaning of the words in the Rules.
2. Paragraph SW2.1 and SW2.2 create three separate and cumulative "bars" to a successful skilled-worker application: (i) falling for refusal under Part 9 (general grounds), (ii) being in breach of immigration laws (with a specific exception where paragraph 39E applies to disregard a short period of overstaying), and (iii) being on immigration bail. The second and third bars are set out in SW2.2 and are conjoined by the word "or".
3. The court concluded that where paragraph 39E applies it creates a limited disregard of a period of overstaying, but paragraph 39E is procedural and does not itself operate as an independent substantive entitlement. The limited disregard is expressed in SW2.2(a). There is nothing in the wording or structure of SW2.2 to indicate that the limited disregard in SW2.2(a) should override, negate or displace the separate bar in SW2.2(b) (being on immigration bail).
4. Accordingly, if on the facts both SW2.2(a) and SW2.2(b) apply, either of them suffices to bar the application because of the disjunctive "or". The court rejected the Appellant's purposive attack that would read SW2.2(b) down in all cases where SW2.2(a) applies.

Lawfulness of Decision 2 and timeliness

1. The court emphasised the temporal facts: Decision 1 (refusal and certification) was electronically notified on 28 April 2023, and the effect of the applicable regulations was that the Appellant's section 3C leave ended upon that notification. From that moment the Appellant was an overstayer and was "liable to be removed" and "liable to be detained" pending removal, making immigration bail under the statutory scheme available.
2. Relying on the statutory provisions (Schedule 10 to the Immigration Act 2016) and the court of appeal authority in Kaitey, the court held that being "liable to detention" means liable in principle to detention. That construction permitted the Secretary of State lawfully to grant immigration bail once the Appellant was liable to detention, even if immediate lawful detention might have practical constraints.
3. The court rejected the submission that Decision 2 was unlawful because the Secretary of State had to perform additional policy "hoops" before having power to grant bail. That argument confused liability to detention (the statutory trigger) with the separate question whether detention, if effected, would satisfy all procedural and Hardial Singh constraints. The court found no error of law in Decision 2.
4. The court further held that the Appellant had not pursued a timely judicial review of Decision 1 or Decision 2; any such challenge would have had to be made promptly and, in any event, within three months. No timely proceedings had been brought, no explanation of delay had been advanced in the claim form, and no application for an extension of time had been sought or justified before the UT. Given that procedural posture, the UT was entitled to refuse to consider the lawfulness of Decision 2 and had no basis to extend time.

"Historic" or "Historical" injustice argument

The court considered the distinction drawn in the authorities between systemic or collective "historic injustice" and an individual's "historical injustice" resulting from a wrongful governmental act. It held that the present appeal, being a challenge to the UT's refusal of permission to apply for judicial review, was not a statutory human-rights appeal turned on Article 8 proportionality, and therefore the doctrine adduced from Patel had no practical application. Even if the doctrine were relevant, the court found no unlawful past treatment: Decision 1 was effective on 28 April 2023, and Decision 2 followed lawfully. Consequently the Appellant had not established any wrongful operation of the Secretary of State's functions amounting to an injustice that would justify relief.

Other procedural points

The court noted that paragraph 39E is a procedural provision that requires an anchor in a substantive provision; it does not itself supply an overriding substantive entitlement. The court also observed that the Defendant could not be expected to know, at the time of refusing an application, whether a further application would be made within the 14-day window thereby creating practical limits on the argument that bail decisions must anticipate and defer to possible future paragraph 39E applications.

Holding and Implications

HOLDING: The appeal is DISMISSED. The court upheld the UT's construction of paragraph SW2.2 and its refusal to grant permission to apply for judicial review.

Implications and Consequences:

• Direct effect on the parties: The Appellant's challenge to the UT's refusal of permission to apply for judicial review is dismissed. The UT's approach to the construction of paragraph SW2.2 and its conclusion that the Appellant could not rely on paragraph 39E to negate the separate bar in SW2.2(b) (being on immigration bail) is affirmed.
• The court confirmed that a belated attempt to challenge a prior bail decision (Decision 2) will typically be time-barred where no prompt judicial review was sought and no extension of time was requested or justified; the UT properly declined to examine the lawfulness of Decision 2 in those circumstances.
• The court held that Decision 2 (the grant of immigration bail) was lawfully made on the facts: upon electronic notification of Decision 1 the Appellant's section 3C leave ended and she became liable to detention and removal, making immigration bail available under the statutory provisions.
• No broader or new legal principle was established beyond the application of established construction principles to paragraph SW2.2 and the confirmation of the temporal and procedural conclusions set out above. The court expressly treated paragraph SW2.2 as clear in its ordinary meaning and did not read down paragraph SW2.2(b) where both subparagraphs apply.

Outcome

The appellate court dismissed the appeal. Judge Warby delivered the reasons, and Judges Warby, King and Judge [Last Name] (concurrence indicated in the source) agreed with the outcome as summarised above.

Note: All individual names and other identifying personal information appearing in the source opinion have been anonymised in this summary in accordance with the instructions provided. The summary otherwise follows the reasoning and content set out in the provided opinion without addition of material not present in the text.