Tribunal decisions

The decision

JR-2024-LON-002166

In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review

In the matter of an application for Judicial Review

The King on the application of

RAMAKRISHNAN KAMALANATHAN
Applicant
and

Secretary of State for the Home Department
Respondent

ORDER

BEFORE Upper Tribunal Judge RIMINGTON

HAVING considered all documents lodged and having heard Mr Z Malik KC of counsel instructed by KT Solicitors, for the applicant and Mr M Biggs of counsel, instructed by GLD, for the respondent at a hearing on 11th December 2025

IT IS ORDERED THAT:

(1) The application for judicial review is dismissed for the reasons in the attached judgment.

Costs

(2) The Applicant shall pay the Respondent’s costs, to be assessed on the standard basis if not agreed.

(3) I considered all documents lodged including the Costs’ submissions.

(4) The respondent seeks her costs not merely on a standard basis, where the court will only allow costs which are proportionate to the matters in issue, but on an indemnity basis where the respondent is given the benefit on the doubt in relation to proportionality as to costs. The standard basis is the normal basis of costs.

(5) The respondent’s submissions are that first, there is no application for permission to appeal ‘at this stage’ against the judgment attached, second it was clear in the Detailed Grounds of Defence that she would make an application for costs on an indemnity basis in the light of Islam v SSHD [2025] EWCA Civ 458 such that the applicant’s case was no longer reasonably arguable, third the matter was not reviewed as a skeleton argument was not filed in accordance with directions and further pleaded matters not argued in the grounds but via the ‘back door’ in oral argument.

(6) The applicant agreed that costs be awarded on a standard basis to be assessed if not agreed but contested that as per R (Butt) v SSHD (Indemnity costs) [2022] UKUT 00069 (IAC) the award of indemnity basis for costs should only be in ‘exceptional cases’ and the conduct should be shown to a high degree. That was not the position here.

Reasons on costs

(7) Further to Butt [39]– [48] the starting point is the nature of the dispute, and the Tribunal must consider each case on its own facts.

(8) The litigation history is set out in the judgment attached. The applicant challenged the decision of the Secretary of State to reject his application under Appendix Skilled Worker.

(9) The question is the basis of the costs award. The test to be applied in relation to indemnity costs is whether the conduct or actions of a party was ‘unreasonable to a high degree’, Kiam v MGN Ltd (No 2) [2002] 2All ER 242. The court must decide whether there is something in the conduct of the action or the circumstances of the case in general which takes it out of the norm in a way which justifies an order for indemnity costs.

(10) Although the respondent set out, that there would be claim for costs both on a standard and indemnity basis) at an early stage that does not render, in the circumstances, the applicant’s decision to proceed as being unreasonable to a high degree even though it may have been misguided.

(11) Contrary to R (on the application of Babbagge) v SSHD [2016] EWHC 148, the applicant did fail ‘properly to comply with an order’ that is the filing of the skeleton argument, which may indicate that there was a failure to review the viability of this case until a later stage, contrary to the ongoing duty to review the merits of their case emphasised in the directions on grant of permission, but I am not persuaded that the absence of a skeleton argument confirms that the matter was not kept under review. I am not persuaded the absence of the skeleton argument from the applicant fixed the respondent with further costs and that any arguments could not be addressed in oral submissions.

(12) It is asserted that the applicant must have known of Islam and indeed behind which this case was stayed. Although the applicant did not amend his grounds of application, as noted, the impugned decision, however, related to the interpretation of the law under Appendix SW and a detailed analysis of the law was addressed in my judgment and which stemmed from the original grounds. I also note that there are cases being listed in the Court of Appeal in relation to the exercise of discretion under Appendix SW and thus the issue may still be subject of proceedings in the Court of Appeal

(13) The decision by the applicant to proceed might be considered to be ‘wrong and misguided in hindsight’ but that does not, in the circumstances, fulfil the criteria for ‘unreasonable to a high degree’ which is penal by nature, R (on the application of Kalu) [2018 EWHC 1802. I am not persuaded that the conduct of the applicant takes it out of the norm such that the costs sought should not be on a ‘proportionate’ basis.

(14) On the facts of this case, it is not made out that the applicant has done something ‘outside the ordinary and reasonable conduct of proceedings’, Esure Services Ltd v Quarcoo [2009] EWCA Civ 595.

(15) The applicant is to pay the reasonable costs of the applicant on a standard basis to be assessed if not agreed.

Permission to appeal

Permission to appeal is refused because I consider there to be no error of law in my decision and no grounds were submitted as to any error of law.

Signed: H Rimington

Upper Tribunal Judge Rimington

Dated: 4th March 2026

The date on which this order was sent is given below

For completion by the Upper Tribunal Immigration and Asylum Chamber

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 05/03/2026

Solicitors:
Ref No.
Home Office Ref:

Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).

Case No: JR-2024-LON-002166
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

11th December 2025
Before:

UPPER TRIBUNAL JUDGE RIMINGTON

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Between:

THE KING
on the application of
Ramakrishnan Kamalanathan
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr Z Malik
(instructed by KT Solicitors Limited), for the applicant

Mr M Biggs
(instructed by the Government Legal Department) for the respondent

Hearing date: 11th December 2025

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J U D G M E N T

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Judge Rimington:
1. On 13th August 2024 the appellant filed an application for judicial review challenging the decision of the respondent dated 28th May 2024 (the Decision) to reject his application for leave to remain as a Skilled Worker as invalid under Appendix Skilled Worker (Appendix SW) of the Immigration Rules.
2. The applicant entered the UK on 5th October 2022 as a student with leave to enter valid from 22nd September 2022 to 30th January 2024. He was admitted to study for a Master of Science and Management at Queen’s University, Belfast from 19th September 2022 until 30th September 2023. The applicant subsequently entered into a relationship and agreed with his partner not to pursue his education but to start work in order to build a future with his new partner. The applicant, however, could not find an employer, neglected his studies and in August 2023 his partner left him, fell into depression and began to drink.
3. On 6th November 2023 the respondent decided to cancel his student leave to enter with immediate effect from 7th November 2023. The Decision recorded that he was granted permission as a student under Appendix Student of the Immigration Rules and his permission had been cancelled under paragraph 9.26.1A of the Immigration Rules. The sponsor had notified the Home Office that the applicant had not started his studies on time and failed to enrol on his course at Queen’s University, on 19th September 2022. It was noted that in that decision that if the applicant thought there were reasons why he should be allowed stay in the UK he needed to make an application for permission to stay.
4. On 22nd November 2023 the applicant applied for leave to remain outside the Immigration Rules. On 1st May 2024 the applicant applied to vary the application to that under Appendix SW.
5. The applicant made additional representations dated 20th May 2024 to accompany the skilled worker application and attached a witness statement which set out the circumstances leading to the abandonment of his studies. It was submitted that the application met all the relevant Appendix SW criteria and the legal representatives made an express request for the respondent to exercise discretion, both within and without the Rules.
6. The applicant also submitted that the respondent had unlawfully cancelled the applicant’s leave to enter by failing to contact the applicant in advance in accordance with guidance and he was thus denied an opportunity to explain his circumstances so that discretion could be exercised and his witness statement explained why he had not undertaken his studies.
Invalidity Decision under challenge dated 28th May 2024
7. The varied application was rejected and in the Decision the respondent stated,
“You have attempted to make an application for permission to stay in the United Kingdom (UK).
Your application has been rejected as invalid and will not be considered for the reason set out below.
You have applied for a Skilled worker visa; you must meet the validity requirements stated in Immigration Rules Appendix Skilled Worker.
We have noted that your current course was not completed. Because of this, you do not meet the Student Switching requirements stated in the rules, therefore your application falls to be rejected as invalid.
…”
Grounds for judicial review
8. The applicant applied for judicial review. The grounds set out the background and referenced Paragraphs SW 1.5A and SW 1.6 of Appendix SW of the Immigration Rules.
9. The background to the grounds referenced various guidance of the respondent.
10. The Guidance Cancellation and curtailment of permission Version 5.0 5th March 2024 stated inter alia at [52] to [53]:
“In cases where the reasons for cancellation are discretionary, you must not automatically cancel an individual’s entry clearance or permission if there are reasons that suggest it may not be appropriate to do so.”
11. The Skilled Worker caseworker guidance Version 11.0 - 4 April 2024 at pages 11 to 12 stated:
“An applicant who is applying for permission to stay and has, or last had, permission as a Student must have completed the course of study for which the Confirmation of Acceptance for Studies was assigned (or a course to which paragraph ST 27.3 of Appendix Student applies), or the course must have finished before the start date on their CoS”.
12. The respondent’s guidance Validation, variation, voiding and withdrawal of applications Version 9.0 – 14th November 2023 (Validation guidance 2023) at pages 6 and 18 stated:
“An application under the Immigration Rules is valid when it meets all of the validity requirements set out in the Immigration Rules for that route, or when discretion is applied to treat an application as valid even when it does not meet all of the validity requirements for the route”.
Under the requirement ‘previous leave’ the following was noted:
“If an applicant had, or was last granted, the type of permission set out above, [Appendix skilled worker] then they have not made a valid application as a skilled worker. You may decide, on a case-by-case basis, to exercise discretion when considering this validity requirement, for example, where a person has previously been granted leave outside the rules (for example, persons arriving from Ukraine granted leave outside the rules at the border) it is likely to be appropriate to exercise discretion and treat their application as valid and allow them to make an application as a Skilled Worker.”
It was also submitted that even if the respondent decided not to exercise the discretion the respondent should give an opportunity to vary the application within 14 days prior to any invalidity decision. The Validation guidance 2023 set out as follows:
“If it is not appropriate to exercise discretion, then you must write to the applicant using the ‘Validity reminder in and out of country’ template, explaining that the applicant cannot meet this requirement and giving 14 days to vary to another application if they choose to. If they do not choose to submit another application to vary this one within 14 days, then you must reject the application using the ‘Validity rejection in and out of country after write out’ template, telling the applicant that their application is invalid and the reason why. You must record this on the validity screen in Atlas or in the notes on CID.”
Ground 1
13. The respondent failed to consider whether to exercise discretion pursuant to paragraph SW 1.6 and treat the application as valid or grant leave outside the rules despite being expressly requested to do so in representations. The representations, dated 20th May 2024, expressly urged the respondent to exercise discretion because the applicant’s failure to study arose for the compassionate reasons given in the appellant’s witness statement.
14. The representations outlined the relationship of the appellant and the effect on the appellant of the neglect of his university studies. His leave was cancelled in November 2023. He found a sponsor who issued a certificate of sponsorship on 3rd April 2024, and he submitted his skilled worker application on 1st May 2024. The applicant stated that he had never overstayed or breached his visa conditions and the Immigration Rules changed on 17th July 2023, such that students could no longer switch to a skilled worker route. The Decision gave no reasons in respect of the statutory discretion. Following 17th July 2023, the Immigration Rules (HC 1496) required students to complete a course of studies or have a work start date, that is after the completion date of their course before they can switch to the Skilled Worker visa.
15. The respondent’s Validation guidance advised caseworkers that they have a discretion to treat an application as valid at the date of respondent’s Decision and a discretion in relation to the previous leave validity requirement in SW 1.5A. The respondent’s decision was Wednesbury unreasonable in failing to consider whether to exercise discretion, pursuant to SW 1.6 and consider granting leave to remain outside the Rules.
16. The Decision was considered procedurally unfair and unreasonable as it was contrary to the respondent’s Validation guidance 2023.
Ground 2
17. It was submitted that the respondent’s Decision was procedurally unfair as the applicant was not served with a validity reminder giving him fourteen days to vary his application or make further representations prior to the invalidity decision. This was contrary to the respondent’s guidance Validation guidance 2023.
18. Had the respondent correctly followed his own procedure and sent a validity reminder letter to the applicant prior to the invalidity Decision the applicant would have provided reasons as to why he could not meet paragraph SW 1.5A. These reasons were set out in a witness statement and a covering letter of 2nd August 2024.
Refusal of permission for judicial review
19. Following the receipt of an Acknowledgment of Service and grounds of defence, permission to apply for judicial review was refused on the papers from 8th November 2024 by Upper Tribunal Judge L Smith.
Grounds for renewal
20. On 15th November 2024 an application to reconsider permission under Rule 30(4) was made on the following grounds:
Ground 1
21. Paragraph SW 1.6. of the Skilled Worker Immigration Rules was acknowledged but it was submitted there was a statutory discretion and failure to exercise it gave rise to a public law error. The matters raised in the judicial review grounds were highly arguable, given that on 3rd July 2024 Lord Justice Newey granted permission in respect of the same points in these terms, that the applicant’s case was essentially that the respondent failed to appreciate that he had a discretion and accordingly failed to consider whether it should be exercised. As reasoned by Lord Justice Newey in relation to SW 1.6 of the Immigration Rules
‘On one view, that entitled the respondent to decline to give the appellant’s application any consideration at all. On the other hand, the use of the word “may”, as opposed to “must”, can be argued to give rise to a discretion which the respondent needed to consider exercising”.
It was submitted that this grant of permission was extracted in the original judicial review grounds and the significance of this grant was that it was the failure to exercise discretion alone that led to the grant of permission.
Ground 2
22. The judge did not address the requirement that the respondent give the applicant an opportunity to vary the application within fourteen days prior to any invalidity decision.
Grant of permission to apply for judicial review
23. On 30th December 2024 Tribunal Judge Mahmood granted permission for judicial review on ground 1 and refused permission on ground 2. He noted that the applicant placed reliance on the decision of Newey LJ dated 2nd July 2024 in Ashraful Islam v Secretary of State for the Home Department CA-2024-000870 whereby the judge granted permission to appeal to the Court of Appeal on what appeared to be similar grounds. At [6], Judge Mahmood stated, “Ms Jegarajah abandoned Ground 2 and so I refuse permission on Ground 2”.
24. Amended case management directions were agreed such that the respondent’s detailed grounds of defence fell due some 35 days after the final determination of Islam v Secretary of State for the Home Department [2025] EWCA Civ 458.
Detailed grounds of defence
25. Detailed grounds of defence were filed on 7th September 2025. In essence Islam was relied upon. The Secretary of State had acted in accordance with her powers under the Immigration Act 1971. The Secretary of State was entitled to apply paragraph SW 1.5A without more.
26. The respondent’s skeleton argument was filed on 4th December 2025 in accordance with directions. It was noted that no skeleton argument had been filed in time by the applicant to a facilitate response by the respondent.
27. In terms of costs, it was submitted that the applicant had acted unreasonably by pursing a case or issue that should have been acknowledged by reasonable litigants, R (on the application of Butt) v Secretary of State for the Home Department (indemnity costs) [2022] UKUT 00069 [37] – [48]. Costs on an indemnity basis were sought by respondent.
Further application
28. In the event the applicant’s representative filed an application on 5th December 2025 to file a skeleton argument out of time. I refused admission of that skeleton argument on 9th December 2025.
29. At the substantive hearing although Mr Malik made a renewed application to have the skeleton argument submitted and it was clear that Mr Biggs had read the skeleton argument, he objected to this submission and I consider that the point made in my direction dated 9th December 2025 declining the admission, remained valid. The applicant had subverted the procedural timetable and caused prejudice to the respondent in that the respondent was not in a position to have responded accordingly in her written skeleton argument.
30. Secondly, Mr Malik was very well-able to make reasoned argument to the court on the day.
Submissions
31. Mr Malik referred me to the covering letter dated 20th May 2024 and submitted that the applicant had made an application under the SW 1.6 but there was an application to have the matter considered outside the Rules. He was not submitting that the Secretary of State should have granted the applicant leave but the Secretary of State should have at least considered the exercise of her discretion outside the Rules. The applicant had explained why he had not been able to complete his course of study. He submitted the applicant’s leave to remain as a student was wrongly curtailed and had submitted a statement dated 2nd May 2024, to that effect blaming his domestic circumstances. This outlined that the applicant had never overstayed nor breached conditions (a point not accepted by Mr Biggs) and made an application within fourteen days of the curtailment of his leave and requested that the Secretary of State exercise her discretion outside the Rules.
32. The Decision under challenge noted that the applicant had applied for leave as a skilled worker and that the applicant had not completed his course and the switching Rules were not met but the Decision simply stated the application was not valid with no consideration of the request to consider the application outside the Rules.
33. The Secretary of State made two distinct public law errors. First, there was a public law obligation on the Secretary of State to consider exercising residual discretion outside the Rules and to engage with the submissions made by the applicant and second, the Secretary of State should not act contrary to her published policy.
34. I was referred to R (Munir) & Anor v Secretary of State for the Home Department [2012] UKSC 32 particularly [44] which identified the Secretary of State’s wide discretion to control the grant or refusal of leave, and to Behary v Secretary of State for the Home Department [2016] EWCA Civ 702 at [39] which considered the grant of leave outside the Immigration Rules. Unlike this case, the applicant in Behary had made no request to the Secretary of State to grant him leave to remain outside the Rules. Specifically, Behary at [38] identified that there was no doubt there was genuine discretion to grant leave to remain in the UK outside the Immigration Rules and at [39] confirmed that there was an obligation to consider such a ground when expressly asked to do so together with the material relied upon.
35. Mr Malik also turned to Ganeshamoorthy, R (On the Application Of) v Secretary of State for the Home Department (Evidential Flexibility; Administrative Review Gateways) [2025] UKUT 229 (IAC) and in that case the Secretary of State made the same error as in this case and refused the application without considering the request to consider the matter outside the Rules.
36. In Ganeshamoorthy, the Secretary of State made a similar submission in relation to Section 31(2A) of the Senior Courts Act 1981 such that the outcome would have been the same. The judge, however, was not required to embark on an exercise to try to predict what the Secretary of State would have done if the error had not been made; it was not for the judge to predict an outcome. In this case the respondent ignored the request altogether.
37. I was also invited to consider Mandalia v Secretary of State [2015] UKSC 59, specifically [31] the need to act in accordance with policy guidance and failure to do so was unlawful in public law. When considering the validity requirements, the applicant should be given fourteen days where there was a problem with the application, so this could be rectified. If someone made an application which was rejected as invalid, they would become an overstayer and the consequences were serious. I was referred to pages 21, 23 and 27 of the Validation guidance 2023, and it was argued that what the Secretary of State had done was flatly inconsistent with her policy.
38. Nothing in Islam assisted on the points made. Islam considered an application made by the applicant for leave as a Skilled Worker but there was no submission that the application requested the Secretary of State to exercise her discretion and consider leave outside the Rules. Islam said nothing about the exercise of discretion outside the Rules and the one reference to Behary at [23] was that the Secretary of State did not have to chase the shadows to consider arguments before her.
39. I was reminded it was not an option for the applicant to make a new application to the Secretary of State.
40. Mr Biggs submitted that there were two flaws in the applicant’s argument. First, the Behary principle was not applicable because the applicant was not asking for a grant of leave outside the Rules and was simply asking for a waiver of the validity requirements. Secondly, Mr Malik’s submissions rested on a misinterpretation of Islam. There was a misunderstanding of how the Immigration Rules operated in this context; there was no scope to grant leave in this instance. Mr Biggs pointed out that Mr Malik acknowledged that the Secretary of State had not only the power but also an absolute entitlement to apply the validity requirements, otherwise the decision in Islam would be meaningless.
41. Reliance on the policy was not open to Mr Malik and added nothing. It was recognised the Secretary of State had power to waive the validity requirements but that that could not assist. The applicant relied on the pages of the policy in relation to procedural unfairness but that was plainly pleaded in ground 2, which was not given permission.
42. The renewal grounds focused on SW 1.6. The scope of the grant was limited in the permission granted.
43. Ground 1 was in effect an argument about whether it was proper to waive the validity requirements and the discretion under SW 1.6. Post Islam there was an attempt to recast the case in the way that Mr Malik sought in oral submissions and all the points made were outside the scope of the grant. In effect Mr Malik had conceded the case because he accepted that the Secretary of State was absolutely entitled to reject the application under the Rules. The scope of these issues was now narrow, and the concession was fatal to his case. Looking at the initial grounds of review at [31] onwards Mr Malik was not entitled to rely on those points.
44. Mr Malik’s ground 1 referred to different parts of the policy from those he now cited, and those passages did not sweep in the points he sought to advance. In particular, in ground 1 at [21] of the application for permission grounds, it was stated simply that the respondent’s decision was procedurally unfair and unreasonable as it was contrary to the respondent’s guidance. It was wholly unparticularised and [27] and [28] of the grounds added nothing.
45. It was quite clear from the correct understanding of the judgment in Islam, that the Secretary of State had a right to reject the an invalid application outright. Islam at [26] touched on the issue of procedural fairness but the cases of Behary, and Munir could be distinguished as could Ganeshamoorthy, which was not about validity. Those cases confirmed a request for a grant of leave outside the Rules and not a request to treat an invalid application as valid. Islam at [30] made clear that SW 1.6 was a filter, but the applicant’s case was merely a way of attempting to circumvent Islam. I was referred to [34] and [35] of Islam.
46. Behary was clear at [38] that it was not about validity requirements but exercising discretion outside the Rules. In those cases, there may be a requirement to look at the request for discretion even if reasons were brief, but they did not assist in this case.
47. The Secretary of State had an absolute power to treat as invalid the application. On an accurate reading of Islam, the Secretary of State merely needed to apply the Immigration Rules and had an absolute entitlement to do that. It would make a nonsense of the decision in Islam if the Rules could simply be circumvented merely by drafting a letter and triggering a duty to consider the exercise of discretion which is not required under the Rules. There was nothing left to be done outside the Rules and there was no Behary obligation.
48. I was also referred to the case of R (Andrews) v SSHD [2025] EWHC 64 (Admin) in which the court explained there is a hierarchy of legislative provisions and the Rules took priority over any guidance.
49. Mr Biggs submitted that there was no proper application for leave to remain outside the Rules merely a throwaway line at [31] of the letter dated 20th May 2024. Nothing put forward could have made any difference and he added that the applicant had made false assertions in his witness statement.
50. In any event, any procedural default that had arisen would not make any difference to the relevant outcome. All the decision maker would do is to look at the material and that did not change the fact that the validity requirements were available to the Secretary of State. The Secretary of State was entitled to treat the application as invalid. Section 31(2A) of the Senior Courts Act did apply here as it would simply be a process of going through the motions to rectify any procedural error which would make no difference.
51. Mr Malik in response submitted it was incorrect to say that there was no request by the applicant for a grant of leave outside the Rules and simply no reasons were given by way of response in the Decision. Mr Malik submitted that the applicant was entitled to a consideration of his application in a lawful manner.
52. I was referred to AB R (On the Application Of) v Secretary of State for the Home Department [2018] EWCA Civ 383 at [44] and [45] cited in the letter to the Secretary of State dated 24th May (the exercise of this residual discretion is subject to the "non-fettering" principle). The applicant had to make an application which most closely matched his circumstances, and he now had no other route to follow. He sought leave outside the Rules. His initial application was a human rights application.
53. Islam was about the construction of SW 1.6, and this case was about the grant of leave to remain and thus Behary could apply.
54. In terms of Section 31(2A) this was the same argument that was put forward by the Secretary of State to the judge in Ganeshamoorthy but it was for the Secretary of State to balance all the matters and then decide whether to grant leave outside the Rules. It was not for the judge to predict and make that decision.
Conclusions
55. The Immigration Rules are made pursuant to the power and duty conferred in section 3(2) of the Immigration Act 1971 (“the 1971 Act”), R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33.
56. Section 50 (1) of the Immigration, Nationality and Asylum Act 2006 provides:
“Rules under section 3 of the Immigration Act 1971–
(a) may require a specified procedure to be followed in making or pursuing an application or claim (whether or not under those rules or any other enactment),…’
57. The respondent thus has a broad statutory power to grant or refuse leave to enter or remain under the 1971 Act and the Immigration Rules provide the framework for the exercise of this power. The power includes the ability to waive an Immigration Rule and to promulgate policy as to how this discretion may be exercised as per R (Munir) & Anor v Secretary of State for the Home Department [2012] UKSC 32, at [26] – [40], [44] and [46]. The power to make the Immigration Rules manifestly extends to a power to impose procedural requirements within those Rules. The observations of Laws LJ in R (Khatun) v London Borough of Newham [2004] EWCA Civ 55; [2005] at [35] are relevant:
“In my judgment … where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decisionmaker and not the court to conclude what is relevant, subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such.”
58. The Skilled Worker Rules read as follows:
“SW 1.5A. An applicant who is applying for permission to stay and has, or last had, permission as a Student, must fulfil one of the Conditions A, B or C below on the date of application:
(a) Condition A: the applicant must have completed the course of study for which the Confirmation of Acceptance for Studies was assigned (or a course to which ST 27.3 of Appendix Student applies); or
(b) Condition B:
(i) the applicant must be studying a full-time course of study at degree level or above with a higher education provider which has a track record of compliance; and
(ii) the Certificate of Sponsorship in SW 1.2(d) must have a start date no earlier than the course completion date; or
(c) Condition C:
(i) the applicant must be studying a full-time course of study leading to the award of a PhD with a higher education provider which has a track record of compliance; and
(ii) the Certificate of Sponsorship in SW 1.2(d) must have a start date no earlier than 24 months after the start date of that course.
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.”
59. Subsequent to this judicial review application, the decision in Islam was made. Indeed, this judicial review application was stayed pending the decision in Islam. The Court of Appeal in Islam made clear that use of the word ‘may’ in paragraph SW1.6 of the Immigration Rules is permissive, not mandatory: the respondent is not required to consider exercising her discretion to waive validity requirements in each case where an invalid application has been made.
60. Islam at [27] made reference to Mahad v Entry Clearance Officer [2009] UKSC 16 as follows:
‘As a matter of language we must, as Lord Brown has ordained, construe the words of SW 1.6 sensibly, according to their natural and ordinary meaning, recognising that they are statements of the Secretary of State's administrative policy. In my reading, the sensible construction of the sentence
"An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered."
is that the decision maker is entitled to reject a non-compliant application without any consideration whatever of the underlying merits of the application. This is strongly supported by the words validity requirements, rejected as invalid, and not considered.’ [My underlining].
61. Critically at [30] Jackson LJ had this to say, and I underline the salient points for emphasis:
‘At the level of administrative function, the distinction between rejection for invalidity and refusal after consideration is a familiar and sensible one. Were it otherwise, resources would be wasted on invalid applications at the expense of valid ones. 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.
And
“35. … paragraph SW 1.6, and the similar provisions elsewhere in Appendix SW, entitles the decision maker to reject an application that has been properly determined to be invalid without any further consideration and that judicial review will not lie in respect of such a rejection’.”
62. Andrews LJ added at [41]
‘The requirements of SW1.5A are couched in mandatory language and SW 1.6 spells out the consequences of failure to meet those requirements (or any other mandatory requirement). A student who falls outside the three specified categories has no entitlement to have the substance of their application considered. The application fails to cross the threshold for consideration’. [my underlining and bold]
63. In my view, thus, the application was properly rejected as invalid and considered in a lawful manner. The respondent was rationally entitled to decide and apply paragraph SW1.5A as she did (and was requested to do by the applicant) and was bound by SW 1.6 to reject as invalid the application. The Decision lawfully and specifically gave reasons why the application was not compliant and stated that ‘your current course was not completed. Because of this, you do not meet the Student Switching requirements stated in the rules’. Reference was made to the particular conditions A, B and C. The applicant could not fulfil any of those requirements.
64. The fact is that the whole framing of the application on 1st May 2024 was under Appendix SW and thus the application was clearly made and rejected under Appendix SW. The applicant had on 1st May 2024, varied his application, with legal assistance, to one for leave to remain under Appendix SW of the Immigration Rules. The initial application for leave to remain outside the Immigration Rules dated 22nd November 2023 was thereafter deemed to have been varied, on the initiative of the applicant, pursuant to paragraph 34BB(i) of the Immigration Rules.
65. On 20th May 2024 the applicant, via his representatives made further representations. These representations enclosed an online application form and specifically stated that ‘the Applicant (‘the A’) …seeks permission to stay in the UK under Appendix Skilled Worker’.
66. The applicant made clear that the application ‘stands as a variation of his FLR (HRO) application, made on 22 November 2023’ [my underlining]. The application asserted that the applicant ‘takes the benefit of SW 1.5A.(b)(ii) – condition B as the course ended on 30th September 2023 which is before the start date of his employment/CoS on 3 April 2023, as per SW 1.5.(b)(ii)’. Reference was made to the ‘Skilled worker caseworker guidance (Version 10.0 – 11 March 2024)’. Further reference was made to SW 1.6 as being discretionary with an acknowledgment that an application ‘may’ be rejected and ‘not considered’. The letter also included that the applicant asked that “alternatively he asked that he is granted leave to remain outside the Rules”.
67. Although the May 2024 representations invited the Secretary of State, to exercise discretion outside the Rules and cited AB at [44] and [45] and Munir at [44], AB makes clear at [45] that, notwithstanding that the residual discretion was recognised, where the Rules are ‘expressed in mandatory terms, they are not , for that reason, ultra vires nor to be read as operating other than in a mandatory manner’. Even in the section of the subsequent representations under ‘Discretion outside of the Rules’, it was emphasised that the applicant should be granted leave to remain under ‘the SW Appendix’. The reference to discretion outside the rules was made with reference to the waiving of the requirements of Appendix SW in accordance with SW 1.6 and to waive the mandatory requirements. Until [30] of the representations, the focus was on Appendix SW and concluded with a reference to SW 17.1. As Mr Biggs submitted there was merely a throwaway line at the end of the representations at [31] to the effect that ‘he is granted Leave to Remain outside of the Rules’.
68. It is also important to be clear as to the actual grounds for judicial review and how they were framed. Ground 1 focussed on whether it was proper to waive the validity requirements and the discretion under SW 1.6. Mr Malik confirmed that the original grounds had not been amended merely renewed.
69. The original judicial review grounds stated at [24] that ‘no reasons were given in respect of a statutory discretion’. The grounds proceeded to complain of the change of the Skilled Worker rules overnight and that there was a discretion to treat an application as valid. It was also submitted at [27] and [28] as follows:
‘27. The R’s guidance ‘Validation, variation voiding and withdrawal of applications’ version 9.0 dated 14 November 2023 advises caseworkers that they had a discretion to treat an application as valid at the date of the R’s decision.
28. Page 18 of the ‘Validation, variation voiding and withdrawal of applications’ version 9.0 dated 14 November 2023 guidance confirms that there is a discretion in relation to the previous leave validity requirement in SW 1.5A.’
70. Ground 1 specifically stated at [29] that the respondent ‘s Decision was
‘Wednesbury unreasonable because it failed to consider whether to exercise his (sic) discretion pursuant to paragraph SW 1.6 Appendix Skilled Worker rules and treat the A’s application as valid or grant leave outside the rules despite being expressly requested to do so in representations’.
71. In my view this ground in the original grounds was confined to a complaint relating to the exercise of the said discretion within the Skilled Worker rules.
72. Even if the application were not so confined, there is a distinction between on the one hand, rejection for invalidity and on the other hand, refusal after consideration. The Court of Appeal specifically stated that SW 1.6 serves as a filter and extracts invalid applications from the system.
73. The vehicle for this application was no longer the FLR (HRO) as specifically set out in the representations of 20th May 2024 by the legal representative. The vehicle was the application under Appendix SW.
74. It was the applicant’s decision to alter and vary the FLR application outside the Rules and based on human rights grounds to one under Appendix SW. This application was rejected in accordance with Islam and because the application was invalid there was no requirement for any further consideration.
75. Although the cases of Behary, Munir and Ganeshamoorthy were cited (but not in the original judicial review grounds), in those cases the applications were treated as valid and not, as here, invalid. In Behary the application was refused for a lack of established presence not because the application itself was invalid. Even Behary, at [38] states the following:
“38. On the substance of the argument, there is no doubt that there is a general discretion to grant leave to remain in the United Kingdom outside the Rules. This appellant is correct in suggesting that the exercise of such a discretion was not considered in the decision which was challenged. No request was made in combination with the application for leave to remain as a Tier 4 student that the Home Office exercise discretion outside the Rules in favour of Mr Ullah. Mr Malik accepts that there is no legal obligation upon the Home Office to consider its discretion outside the rules in every application for leave to remain. He submits that whether it is required to do so as a matter of law depends upon the facts of the case. He drew our attention to two first instance decisions in which judges had, on the facts, concluded that a failure to consider and exercise the discretion was said to be unlawful. He submits that the facts in Mr Ullah's case, essentially that his application was a very near miss, show that there is a realistic prospect that discretion would be exercised in his favour were the matter to be given explicit consideration by the Home Office.”
Again, much depends on the facts of the case.
76. In Munir the Supreme Court recognised a power to grant leave to enter or remain outside the Immigration Rules but again in both of the cases of the appellants in Munir, the Secretary of State had treated the applications as valid, considered them and not rejected them.
77. Ganeshamoorthy considered the Evidential Flexibility Policies, and although the application was under Appendix SW and leave was requested outside the Immigration Rules, the Entry Clearance Officer, again, did not reject the application as invalid but considered the substance of the application.
78. Mr Malik submits that Islam did not consider the position on an application outside the rules, but the risk the applicant takes is that if he makes an application under the Skilled Worker route, his application can be legitimately found to be invalid, whether or not there is a residual discretion, and no further consideration need be made; that includes any application outside the rules which would be parasitic on the underlying application being accepted as valid.
79. Mr Malik submitted orally that further to Lumba v Secretary of State [2011] UKSC 12 at [35] and Mandalia v Secretary of State [2015] UKSC 59, the Secretary of State is obliged to act in accordance with the policy guidance and failure to follow it was unlawful in public law. However, as identified in Mandalia at [31], as Lord Dyson articulated in Lumba at [26]
“26 … a decision-maker must follow his published policy … unless there are good reasons for not doing so."
80. As the application was rejected, and the nature of that rejection has been approved by Islam, the ‘policy’ did not enter the frame in these circumstances. Moreover, Mr Malik’s written ground 1 referred to different parts of the policy from those he then cited in oral submissions, and those previous passages in the grounds did not encompass the points he subsequently attempted to argue and to my mind only served to reinforce the approach of the respondent. The application was declared to be invalid and nothing further was needed to have been done. I also note R (Andrews) at [25] referencing the hierarchy of statute, rules and regulations, and then guidance.
81. It may be as the Court of Appeal in Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134 held at [66] that “it is always open to the Secretary of State to take a decision which is favourable to a person given leave to remain despite what the Rules say” but it was also open to and lawful for the Secretary of State to reject the application outright as per Islam.
82. The reference to the guidance on Cancellation and curtailment of permission took the matter nowhere. Any challenge by the applicant to the previous curtailment is not sustainable as manifestly out of time. There has been no successful challenge. By the time of his application under Appendix SW, the applicant had not completed any course and was not studying. He could not fulfil the requirements cited above in Appendix SW.
83. I need not venture into the role of Section 31(2A) and grapple with any consideration of how it could be that this application could succeed because the cases which were cited to me depended on valid applications. That was not the position here.
84. Ground 2 such that the applicant was not served with a validity reminder giving him fourteen days to vary his application or make further representations, in accordance with the Validity Guidance, prior to the invalidity decision, was specifically abandoned and refused at the renewal stage and I say no more about it.
85. In summary, the applicant made an application, with legal advice, under Appendix SW after the change in the Immigration Rules knowing he could not fulfil the requirements and that the application was at risk of invalidity. There is no mileage in the arguments as to the rapid change in the Rules and choosing a route closest to his circumstances because the applicant had already abandoned that route. The Secretary of State did not err in her treatment of the application under Appendix SW nor otherwise.
86. The Decision cannot be impugned on public law grounds. The challenge fails.

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