The Court of Appeal (CoA) rejected the argument that the Secretary of State had a legally enforceable duty to consider whether to waive the invalidity of the application before rejecting it.
Background:
Mr. Islam came to the UK from Bangladesh in January 2023 on a student visa that was valid until October 2025. On 20 July 2023, he applied to switch to a five-year skilled worker visa, with a view to working as a care worker. His application was accompanied by a Certificate of Sponsorship (CoS) from a prospective employer, dated 16 June 2023. On 25 July 2023, the Secretary of State rejected his application as invalid and returned his application fee minus a small administration fee.
The refusal was due to the fact that, three days before the application was made, the Immigration Rules had been changed to prevent such visa switching by students during their course of study.
On 25 October 2023, the appellant applied for judicial review of that decision. His permission application was refused, and he appealed to the CoA.
Decision:
The CoA dismissed the appeal and the argument that the Secretary of State had a legally enforceable duty to consider whether to waive the invalidity of the application before rejecting it.
The Immigration Rules Appendix Skilled Worker (Appendix SW) sets out the route by which an employer can recruit a person to work in the UK in a specific job. Soon after the appellant arrived in the UK, paragraph SW 1.5A was added. The Court looked at the construction of SW 1.6 and its interpretation, giving the words their natural and ordinary meaning. Under that provision, any application that does not meet all the validity requirements may be rejected as invalid. The appellant based his argument on the ‘may’ which was rejected by the Court when noting that “May is a complex word that takes on different colours according to its context. In some contexts, it denotes possibility or probability ('It may rain'). In the present context, it denotes permission or entitlement, and here again, there are shades of meaning. 'May' can mean 'is permitted to', 'has the power to', 'is entitled to', or 'is absolutely entitled to' do something. Here, the language of the rule, where 'may' is coupled to rejection without consideration, points towards the last of these senses.”
The Judge noted that “SW 1.6 (and its sister provisions SW 19.4, 26.5, and 37.3 in relation to related visas) serves as a filter that extracts invalid applications from the system and enables decision makers to focus on the suitability and eligibility of applicants who meet the validity requirements. The filter must, of course, be operated fairly, so it is not open to the decision maker to reject an application without determining whether the validity requirements are met. But once that has happened, fairness does not require more of the decision maker.”
Implications:
This case highlights the importance of verifying the requirements before making any application. As Immigration Rules might change quickly, any application that does not meet all the validity requirements may be rejected by the Secretary of State. SW 1.6 works as a filter, as is entirely legal and desirable, to ensure that the resources are allocated towards the timely assessment of valid applications. Adding a further duty would negate the role of such a filter.
