Summary of Judgment: Court of Appeal (Civil Division)

Factual and Procedural Background

On 17 July 2023 paragraph SW1.5A was inserted into the Immigration Rules, Appendix Skilled Worker. Its effect was to prevent switching from student leave to Skilled Worker leave unless certain conditions were met, notably completion of the course that gave rise to the student leave. The four Appellants entered the United Kingdom with student entry clearance for specified courses but say they were defrauded of funds for fees and did not start or complete those courses. They remained in the United Kingdom and applied to switch to Skilled Worker leave; the Respondent refused those applications and, in concurrent decisions, refused leave to remain outside the Rules (LOTR). The Upper Tribunal (Immigration and Asylum Chamber) refused permission to apply for judicial review in each case. The Appellants appealed to the Court of Appeal against the UT's refusals. The appeals were heard before Judge Laing, Judge Arnold and Judge Warby; the hearing took place on 29 April 2026 and the judgment was handed down on 11 May 2026.

Legal Issues Presented

1. Whether the Respondent is obliged, when refusing an application to switch deemed invalid under paragraph SW1.5A/SW1.6, to give reasons for declining to waive the validity requirements (the discretion to waive invalidity).
2. Whether the Respondent is obliged to give reasons for any concurrent decision to refuse leave to remain outside the Rules (LOTR).
3. Whether the reasons given in the particular cases were adequate.

Arguments of the Parties

Appellants' Arguments

• The Respondent was obliged to engage properly with the Appellants' evidence and to give adequate reasons when declining to exercise the discretion to waive invalidity under paragraph SW1.6 or when refusing LOTR.
• It was arguable that the Respondent's approach to the exercise of discretion was flawed and that the reasons given were defective and inadequate in each case.

Respondent's Arguments

• The Respondent submitted that the court should not decide the merits of the judicial review applications at this stage because doing so would disadvantage the Respondent; the appropriate course was to remit to the UT.
• The Respondent relied on relevant policy material (including LOTR policy) to submit that these cases were not appropriate for LOTR; the Respondent did not vigorously press that any failure of pleading should bar permission to apply for judicial review.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first identified its procedural limits: it could not itself grant permission to apply for judicial review in the technical sense but could grant permission to appeal and, after a substantive hearing, grant relief the UT could have granted. The court considered the effect of SW1.5A and SW1.6 and the recent authority in Islam, which held that SW1.6 allows the Respondent to reject invalid applications without further consideration. The court accepted that the Respondent is entitled to treat an application as invalid but reasoned that, post-Islam, if the Respondent chooses to engage with the arguments in an invalid application (thereby effectively considering whether to waive invalidity), it is arguable that the Respondent should explain her approach and give adequate reasons if she decides not to waive the invalidity. The court noted the factual circumstances (the Appellants' student visas, alleged fraud as to fees, and that none had started the courses) and considered it arguable that decision-makers in the challenged decisions may not have understood fully the interaction between the entitlement to reject invalid applications, the separate discretion to waive invalidity, and the discretion to grant LOTR. The court declined to decide the merits of the judicial review applications at this stage to avoid prejudicing the Respondent; instead it would remit the cases to the UT and permit amendment of grounds to reflect the composite ground advanced before the Court of Appeal.

Holding and Implications

HOLDING: The Court of Appeal (by majority) concluded that the Appellants' claims were arguable and granted permission to apply for judicial review and remitted the applications to the Upper Tribunal for determination on the merits, allowing the Appellants to amend their grounds to reflect the composite ground of appeal.

Implications: The immediate effect is that the Appellants' applications for judicial review proceed to the UT for substantive determination; the Respondent is entitled to serve detailed grounds and evidence and to raise any appropriate points. The Court did not decide the merits and did not purport to lay down a new binding precedent beyond its application of existing authorities (notably Islam and Behary) to explain why the claims are arguable.