Tribunal decisions

The decision

Case No: JR-2024-LON-002627
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

13 June 2025

Before:

UPPER TRIBUNAL JUDGE HIRST

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Between:

THE KING
on the application of
TAHIR WASEEM NOOR
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr A Maqsood (instructed by S Z Solicitors) for the Applicant
Ms H Burton (instructed by the Government Legal Department) for the Respondent

Hearing date: 8 May 2025

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J U D G M E N T

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Judge Hirst:

1. In this claim the Applicant challenges the Respondent’s decision dated 17 June 2024 to reject as invalid his application for indefinite leave to remain.

Background

2. The Applicant is a national of Pakistan who first entered the UK in 1998 and made an unsuccessful application for asylum. He was removed, but re-entered the UK illegally in 2000. In around 2000 he formed a relationship with a British national, and their son was born in December 2001. The relationship broke down in 2008 and the couple separated.

3. On 10 July 2013, the Applicant applied for limited leave to remain (‘LTR’) on the basis of his relationship with his British child. That application was granted on 11 October 2013 and the Applicant was given LTR on what the decision letter referred to as the ‘ten year parent route’ under paragraph D-LTRPT 1.2 of Appendix FM to the Immigration Rules, valid to 16 April 2016. A further application for leave was rejected as invalid on 8 November 2016. On 1 December 2016 the Applicant made a further application for LTR and was again granted leave as a parent valid to 9 August 2020. On 15 July 2020 the Applicant made an application for further leave which was granted on 6 December 2020 valid to 30 June 2023.

4. On 7 June 2023 the Applicant made a further application for LTR (‘the June 2023 application’). Whilst that application was pending, on 8 February 2024 the Applicant varied it to an application for indefinite leave to remain (‘ILR’). The variation application was made on the Applicant’s behalf by his representatives, using the online application form for settlement on the private life route. In response to the question on the application form “What immigration permission were you most recently granted?” the option “Private Life” was selected. In fact, the Applicant had not been granted leave on the basis of his private life; all of his previous grants of leave had been as a parent under paragraph D-LTRPT 1.2 of Appendix FM.

5. The application form was accompanied by a covering letter from the Applicant’s solicitors. The letter was addressed to the SET(LR) department of the Home Office and began:

“Dear Sirs

RE: APPLICATION FOR INDEFINITE LEAVE TO REMAIM (ILR) IN THE UK BASIS ON THE PRAVITE LIFE AND AS A FATHER OF THE BRITISH BORN CHILD PRESENT AND SETTLED IN THE UNITED KINGDOM SET(LR) [sic]

We act on behalf of the above named our client relation to his Indefinite
Leave to Remain (ILR) Application SET (LR) in the United Kingdom.”

6. The references to “SET(LR)”, i.e. to settlement on the basis of long residence, were erroneous, as the Applicant had in fact applied for settlement on the private life route. The letter continued,

“Our client is applying for Indefinite Leave to Remain (ILR) after qualifying 10 years of continuous residence in the UK on the basis of his long residence and as a private life and as a father of a British Brown child in the United Kingdom, in accordance with the principles set out in the Home Office Policy.”

The letter then set out the Applicant’s immigration history and details of his family life with his son, and confirmed that he had made an in-time application for further leave to remain on 7 June 2023 which was being varied. The letter asserted that the Applicant met the requirements “for grant of ILR basis on Private Life and as a father of a British Citizen child present and settled in the UK [sic]”.

7. On 19 May 2024 the Respondent sent an email to the Applicant’s solicitors notifying them that the application had been made using the Settlement-Private Life application form and that because the Applicant had not last been granted leave on the private life route, which was a validity requirement for an application under Appendix Settlement Private Life, his application was highly unlikely to succeed. The Respondent invited the Applicant to review his application and advised that if he wished to make a further application on a different route he should reapply using the correct form by 2 June 2024, which would be treated as a variation of his application. The email warned that if the Applicant did not vary his application it might be rejected as invalid. The letter included an email address for correspondence.

8. On 4 June 2024 (after the 2 June deadline), the Applicant’s solicitor sent a response to a different email address than that set out in the 19 May 2024 letter. That response was not received by the Respondent prior to the decision under challenge in these proceedings. The email did not request that the Respondent exercise discretion to treat the private life settlement application as valid, nor give any reasons why the Applicant could not vary his application. Indeed, the email did not engage with the validity issue identified by the Respondent. It simply asserted that the Applicant had completed 10 years of continuous lawful residence and that his application was valid.

9. On 17 June 2024 the Respondent rejected the application as invalid, which is the decision under challenge in this claim. The decision stated, so far as relevant:

“You have attempted to make an application for settlement on Private Life
route.

[….]

Your application is invalid for the reason(s) below:

Your immigration history shows that you do not currently have permission or were last granted permission on the Private Life route. You were last granted FLR-FP parent 10 year on 06 December 2020 on a Family Life application.

As you do not hold any leave on the Private Life route, it is highly your
Settlement Private Life application is invalid.” [sic]

10. On 1 July 2024 the Applicant applied for LTR which was granted on 3 October 2024 valid to 3 April 2027.

11. The Applicant issued this claim for judicial review out of time on 20 September 2024. The grounds of claim, which were drafted by the Applicant’s solicitors, were largely unparticularised, and consisted of seven ‘issues for determination’ followed by caselaw summaries without any explanation of how the issues or authorities were relevant to the claim. The issues for determination included:

“1. Whether the Applicant’s application, submitted on the basis of both Private Life and Family Life as the father of a British child, was validly categorized under the appropriate immigration route.

2. Whether “Private Life” includes or can encompass “Family Life” and vice versa, and whether the SSHD has offered a clear distinction or definition for these categories.

…”

12. On 6 December 2024 the Upper Tribunal extended time for the claim and granted permission. Permission was granted on the basis that it appeared, from the grounds and covering letter to the ILR application, that there was a disputed factual issue as to whether the Applicant had applied under Appendix Long Residence using the form SET(LR), and that it was therefore arguable that the Respondent’s decision to reject the application as invalid was irrational.

13. Following the grant of permission the case was listed for substantive hearing. The hearing bundle and Applicant's skeleton argument were due to be filed 21 days before the hearing date, i.e. by 17 April 2025. On 29 April 2025 the Applicant's solicitors filed the bundle and skeleton argument together with an application for an extension of time. The Respondent objected to the application for an extension on the basis that the Applicant’s skeleton argument raised new grounds of claim. The Applicant did not make an application to amend his grounds of claim. On 7 May 2025 I made an order extending time for the filing of the hearing bundle. I permitted the Applicant to rely on the submissions made at paragraphs 21-28 of his skeleton argument, but refused to allow him to rely on new grounds of challenge related to the Respondent’s handling of the June 2023 application.

Legal framework

14. Section 50 Immigration, Asylum and Nationality Act 2006 permits the Secretary of State to impose specific procedural requirements for an application for leave under the Immigration Rules, including the use of a specified form or the provision of specified information or documents. Section 50(2) provides that the Immigration Rules may set out the consequences of failure to comply with a procedural requirement.

Immigration Rules

15. Paragraph 34 of the Immigration Rules sets out general validity requirements for an application for permission to stay in the UK. Paragraph 34(1)(a) provides that an application “must be made on an application form which is specified for the immigration category under which the applicant is applying on the date on which the application is made”.

16. Paragraph 34A provides that an application for permission to stay which does not meet the requirements of paragraph 34 will be rejected as invalid and not considered. However, paragraph 34B provides:

“(1) Where an application for permission to stay does not meet the requirements of paragraph 34(1) to (9), or the validity requirements for the route under which they are applying, the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification.

(2) Where an applicant does not comply with the notification in paragraph 34B(1), or with the requirements in paragraph 34G(4), the application is invalid and will not be considered unless the Secretary of State exercises discretion to treat an invalid application as valid and either the requirements of paragraph 34(3), (4) and (5), or any requirement to pay a fee and Immigration Health Charge and provide biometrics, has been met.

(3) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules.”

17. In addition to the general validity requirements in paragraph 34, specific validity requirements apply to each category of application, which are set out within the relevant section of the Immigration Rules. For an application for settlement under Appendix Private Life, the relevant paragraphs are PL 11.1 – 11.4, which provide (so far as relevant):

“PL 11.1. A person on the Private Life route who is applying for settlement must apply online on the gov.uk website on the specified form as follows:

Adult (aged 18 or over) Settlement on the private life route

Child (aged under 18) Settlement as a child (including a child aged over 18 already in the UK as a dependent)

….

PL 11.3. An applicant must have, or have last been granted, permission on the Private Life route, unless they are a child who was born in the UK.

PL 11.4. An application which does not meet all the validity requirements for settlement on the Private Life route may be rejected as invalid and not considered.”

18. The equivalent validity requirements for an application for settlement on the basis of long residence are set out at paragraphs LR 9.1 – 9.4. The relevant application form specified in paragraph LR 9.1 is “Apply to settle in the UK – long residence”.

The Respondent’s guidance

19. The Respondent has published relevant guidance (‘Validation, variation, voiding and withdrawal of applications’, version 9.0, published 14 November 2023) (‘the validity guidance’). Page 7 of the validity guidance has two main sections. The first, headed “Validity requirements that the applicant cannot take action to meet”, provides:

“For most validity requirements, when an applicant has not met them and therefore the application is not yet valid, they can take action to rectify any error or omission. In these cases, you must apply the process below contact the applicant using the ‘Validity reminder in and out of country’ template giving them 14 days to meet the requirement.

There are some common and route specific validity requirements where an applicant cannot take any corrective action to meet them. For example:

• the applicant must meet an age requirement to apply on a route and they are not young or old enough

• the applicant must have, or most recently have had, permission on a certain immigration route, such as the UK Ancestry route if they are applying in the UK for further permission on that route, and they did not

• the applicant must have been in the UK / outside the UK when they made
their application, and they were not

• (for use on settlement on the protection route only) the applicant has applied for settlement as a person on a protection route, but they do not have, nor were not last granted, permission on a protection route

• (for use on Graduate route only) the applicant does not have, or was last granted, the correct permission as set out in the validity rules on the Graduate route

• (for use on ODW route only) the applicant did not enter the UK with entry clearance as a Domestic Worker in a Private Household under the rules in place before 6 April 2012

Where an applicant cannot take action to make their application valid, you must write to the applicant, using the ‘Validity reminder in and out of country’ template, giving them the opportunity to vary their application within 14 days. If they do not do so, you must consider whether to exercise discretion or whether to reject the application as invalid, using the ‘Validity rejection in and out of country after write out’ template.”

20. The second section is headed “Validity requirements that an applicant can take action to meet” and sets out a number of examples. Pages 8-9 of the guidance provide that, where the applicant has not applied on the correct form specified for that route, they should be notified; if there is no response, the application “must be rejected as invalid”. Pages 10-11 of the validity guidance address situations where the applicant has used the correct application form but may have selected the wrong route or category, or where it appears that the applicant may have intended to make a different application. The validity guidance provides in both cases that the applicant should be contacted and that, if no response is received within the specified period, the application that has been made must be considered.

21. It is clear from pages 8-11 of the guidance that in the second category, where an applicant can take action to meet the validity requirements by correcting errors in his application, the decision-maker must give him an opportunity to do so, failing which the application that has been made must be considered (and rejected as invalid).

R (Islam) v SSHD [2025] EWCA Civ 458

22. The exercise of discretion in applications made under the Immigration Rules has very recently been considered by the Court of Appeal in R (Islam) v SSHD [2025] EWCA Civ 458. That case concerned an application to switch from leave granted as a student to leave under Appendix Skilled Worker, in which the applicant was unable to meet the validity rules in paragraph SW1.5A of the Rules. The key issue in the case was the interpretation of paragraph SW1.6, which at the time read:

“An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered.”

23. The appellant in Islam argued that use of the word “may” in SW1.6 indicated that the Secretary of State had a discretion which she was obliged to exercise before rejecting an application as invalid. The Court of Appeal firmly rejected that argument, holding at §28 that “may” in the context of paragraph SW1.6 was intended to denote “is absolutely entitled to” and did not require the Secretary of State to consider the exercise of discretion in every case. As the court observed at §44,

“If the Secretary of State is entitled to reject an application which does not meet the mandatory requirements, without considering it further, they can obviously choose not to do so, (i.e. to waive a requirement notwithstanding that it is expressed in mandatory terms). It may appear semantic, but that does not mean that a discretion is being exercised to treat the application as a valid application, it means that despite the fact that it is invalid, and thus does not cross the threshold for consideration, the Secretary of State has chosen to consider it on its merits, which the word “may” enables them to do within the ambit of the policy. However, the existence of the power to waive what would otherwise be a mandatory requirement does not mandate the decision maker to consider whether to do so in every case, and to demonstrate in the decision that such consideration has been given, let alone mandate an explanation to be given in every case for why the Secretary of State is not doing so.”

There was no discussion in Islam of either paragraph 34B of the Immigration Rules or the validity guidance.

Discussion

24. The central issue in this claim is whether the Respondent was required to consider exercising her discretion to waive validity requirements prior to the decision of 17 June 2024 rejecting the Applicant’s ILR application as invalid.

25. It is common ground that the Respondent has the power to waive any validity requirement imposed by the Immigration Rules: see also Islam at §44. The Applicant’s case, in summary, is that the Respondent was required by the terms of the validity guidance to consider the exercise of discretion in his case. The Respondent’s position is that the Applicant’s case was on all fours with Islam and was not the type of case where the validity guidance required her to consider exercising her discretion to waive requirements.

The settlement application

26. When permission was granted, it appeared from the grounds that there was a dispute between the parties as to which application form the Applicant had used to apply for ILR. At the substantive hearing, however, it was common ground that the application of 8 February 2024 was made as an application for settlement on the private life route.

27. It was also common ground by the time of the substantive hearing that the application did not meet the validity requirements of the relevant Immigration Rules. Because the Applicant had not been granted leave to remain on the basis of his private life, he could not meet the leave requirement in paragraph PL11.3 of the Rules, which provides that:

“An applicant must have, or have last been granted, permission on the Private Life route, unless they are a child who was born in the UK.”

The Applicant could not meet that requirement because his most recent leave to remain had been granted on the family life route as a parent of a British citizen child.

28. Paragraph PL11.4 provides that

“An application which does not meet all the validity requirements for settlement on the Private Life route may be rejected as invalid and not considered.”

29. The Respondent therefore had the power to reject the application as invalid and not consider it. Equally, the Respondent had a discretionary power to waive the validity requirement in paragraph PL11.3 and consider the application on the merits.

Was the Respondent required to consider exercising her discretion?

The effect of Islam

30. The Court of Appeal in Islam has made it 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.

31. In his submissions on behalf of the Applicant, Mr Maqsood sought to distinguish Islam on the basis that it involved a different factual matrix. In Islam, he submitted, the invalidity stemmed from the fact that the rules for the Skilled Worker route had changed so as to prevent an applicant from switching from another category; that was not the case here. Further, the Court of Appeal had not been taken to the Respondent’s validity guidance, which in the circumstances of the Applicant’s case required the exercise of discretion.

32. For the Respondent, Ms Burton submitted that the wording of paragraph SW1.6 was the same as that in paragraph PL11.4 which applied to the Applicant’s application. There was no basis on which to distinguish Islam and the Respondent was therefore not required to consider exercising discretion. That was supported by the terms of the validity guidance when the guidance was read as a whole.

33. I accept Ms Burton’s submissions. The wording in paragraph PL11.4 of the Rules is in identical terms to the provision considered in Islam. The basis on which the Court of Appeal reached its decision did not depend on the particular factual matrix in that case, but rather on a straightforward question of the correct interpretation of the Immigration Rule. I conclude that there is no proper basis on which to distinguish this case from Islam, and therefore conclude that the Respondent was not obliged by the wording of paragraph PL11.4 to consider exercising her discretion prior to rejecting the application.

34. The question then is whether the Respondent was nonetheless obliged to do so by the terms of the validity guidance.

The validity guidance

35. As set out above, the validity guidance distinguishes two broad categories of case: those where an applicant cannot take action to meet the validity requirements, and those where an applicant can.

36. In submissions, Mr Maqsood argued that the Applicant fell within the first category, and relied on the examples given at page 7 of the validity guidance, which include:

“• the applicant must have, or most recently have had, permission on a certain immigration route, such as the UK Ancestry route if they are applying in the UK for further permission on that route, and they did not”

In such cases, the guidance is clear: the decision-maker must send the applicant a validity reminder (such as the one that was sent to the Applicant on 19 May 2024) and if there is no response, “must consider whether to exercise discretion or whether to reject the application as invalid”.

37. Mr Maqsood submitted that the Applicant was not able to meet the validity requirements for his settlement application because he had not had permission on the private life route, and that therefore, having not received a response from the Applicant’s solicitors within the 14 day period, the Respondent was obliged by the terms of the guidance to consider whether to exercise her discretion to waive the validity requirement in paragraph PL11.1.

38. For the Respondent, Ms Burton submitted that the Applicant’s case fell within the second category in the validity guidance. He had made an application for settlement via a route where he could not meet the validity requirements, but he was able to make an application for settlement in another route where he could meet the validity requirements, namely long residence. The Applicant’s solicitors had had multiple indicators in the application process that the private life route was not the correct route in the Applicant’s circumstances, and had been invited via the 19 May 2024 notification to correct the position by varying the application. They had chosen not to do so. The response of 4 June 2024 was not before the decision-maker at the time of the decision, but in any event did not address the validity issue. The validity guidance did not require the Respondent to consider exercising her discretion in such cases.

39. The Respondent filed a witness statement in these proceedings from Mr Phil Ftizpatrick, a senior case worker in the Home Office Settlement Casework Visa, Status and Information Services department, which explains the online application process as it was at the time of the Applicant’s application. Mr Fitzpatrick’s evidence, which was not disputed by the Applicant, describes how the information webpage on applications for ILR makes it clear that there are different applications for those seeking settlement on different routes, with links to each type of application and the eligibility requirements. The difference between an application for settlement on the basis of long residence and an application for settlement on the basis of private life is clearly indicated. The specific page for an application for settlement on the basis of private life indicates clearly that an applicant must have “a permission to stay (also known as limited leave) on the basis of your private life”. If the applicant chooses to proceed with that application, he is asked to specify which type of immigration permission he was most recently granted. If he does not tick ‘Private Life’ a warning appears stating:

“Based on your answers, you are not eligible for this permission. If you continue and your application is refused, your application fee will not be refunded.”

40. Both Rule PL11.3 itself and the application process make it unambiguously clear that an applicant for settlement on the private life route must have permission to stay on the basis of their private life. The Applicant’s most recent grant of leave had been clearly identified as leave as a parent under paragraph D-LTRPT 1.2. It therefore was or should have been clear to the Applicant’s solicitors, prior to the application being submitted, that an application under the private life route could not meet the validity requirements for that route. A brief exploration of the Respondent’s website would however have indicated that the Applicant could meet the validity requirements for an application for settlement on the basis of long residence.

41. Even if it were not understood at the time of the application, the Respondent’s notification of 19 May 2024 should have made it crystal clear to the Applicant’s representatives that the private life settlement application which had been submitted on 8 February 2024 was highly likely to be rejected as invalid because the Applicant did not meet the leave requirement. The notification set out paragraphs PL11.1 - 11.4 of the Rules and offered the Applicant the opportunity to submit an application on an alternative route. It made clear that an application made on an alternative route within the 14 day period would be treated as a variation application; although a further fee would be required, the original application fee would then be refunded.

42. When asked why the Applicant’s solicitors did not respond to the 19 May 2024 notification by varying the application as suggested, Mr Maqsood submitted that variation would have necessarily involved the withdrawal of the Applicant’s June 2023 application for leave on the basis of his family life. Further, as the Applicant’s previous leave to remain expired on 30 June 2023, prior to the variation application, he could not vary his application to anything which was not a human rights claim, since by doing so he would risk losing the right of appeal to the First-tier Tribunal which he would otherwise have had against the refusal of his application.

43. With respect to Mr Maqsood, I did not find that submission easy to understand. The Respondent’s guidance on appeal rights is clear that refusal of a long residence application gives rise to a right of appeal. Whatever the nature of the application, however, a right of appeal could only arise if the application were refused following substantive consideration. There is no right of appeal against the rejection of a human rights claim on invalidity grounds. The decision to proceed with the private life settlement application rather than vary it, when the Respondent had indicated the application was highly likely to be rejected on invalidity grounds without substantive consideration, therefore meant that the Applicant was highly unlikely to have a subsequent right of appeal.

44. Mr Maqsood further submitted that varying the settlement application would have entailed the payment of a further fee, albeit that that would have been subsequently refunded, and would not in any event have required any different information to that before the Respondent in the Applicant’s existing application. The leave that was sought was identical and had the same conditions. He submitted that the Respondent had not identified any reason why she could not consider the private life application as a valid long residence application.

45. The short answer to that submission is that the Respondent was not required to do so. The Respondent is entitled, by s50 IANA 2006, to impose procedural requirements for applications under the Immigration Rules and to provide that failure to comply with those requirements may result in the rejection of the application. The Immigration Rules are undoubtedly complex and the courts have repeatedly recognised that they can be excessively difficult to navigate. However, where the Respondent has identified that an application falls foul of lawfully imposed validity requirements in the Rules, she is not required to provide any reasons why she should not waive those requirements, particularly when (as here) she has not in fact been asked to waive them.

46. In any event, the 4 June 2024 response from the Applicant’s solicitors, which was sent to an incorrect email address and outside the 14-day period for a response, did not raise any of the concerns identified by Mr Maqsood. Nor did it request that the Respondent consider exercising discretion to waive the leave requirement in paragraph PL11.3. The response did not address the validity requirements of the private life settlement route at all. It simply asserted that the Applicant had had extant leave under s3C of the Immigration Act 1971 and had completed 10 years of residence. The response was wholly inadequate given the importance of the settlement application and the consequences for the Applicant of its rejection.

47. The Applicant was not able to meet the validity requirements of the private life route, but he was able to meet the validity requirements of the long residence route. It should have been clear from the outset, at least to the Applicant’s solicitors, that an application under the private life route was highly likely to be rejected on validity grounds. The Applicant’s solicitors were given the opportunity to review the application and to vary it, and were warned of the likely consequence if they did not. The Applicant did not request at any point that the Respondent exercise her discretion to waive the validity requirements or give any reasons why she should do so. Instead, the response that was sent did not engage with the Respondent’s warning, but ‘doubled down’ on the private life application. The response was in any event sent late and to the wrong email address so that it was not received by the Respondent prior to the decision under challenge. In the absence of a response to the 19 May 2024 notification, the validity guidance required the Respondent to consider the application that had been made. She was entitled, by virtue of paragraph PL11.4 of the Rules, to reject that application as invalid without substantive consideration.

48. I conclude that the Applicant’s application fell into the second category of the Respondent’s validity guidance: he was able to take action to address the reason for invalidity by varying his application. The Respondent was therefore not required by the validity guidance to consider exercising her discretion to waive the validity requirements and it was not irrational to reject the settlement application as invalid without doing so.

Conclusion

49. This case is a sad example of the serious consequences that can flow from a misapprehension of the Immigration Rules. The Applicant via his solicitors made an application for settlement in a route where it was or should have been clear from the outset that he could not meet the validity requirements of the relevant Immigration Rules. When that error was identified by the Respondent, the application was not varied as suggested to one which could meet the validity requirements, with the result that the application was rejected as invalid without substantive consideration. As a result of the invalidity rejection, the Applicant can no longer demonstrate sufficient continuous lawful residence to make another settlement application: the clock has reset, and he will have to accumulate further periods of limited leave before he can again be eligible for settlement. As a result of the discontinuity in leave, the Applicant has also lost his previous employment.

50. I have considerable sympathy for the Applicant. However, for the reasons set out above, I consider that the Respondent was not required either by the relevant Immigration Rules or by the validity guidance to consider exercising her discretion to waive the validity requirements for the Applicant’s ILR application.

51. The Applicant’s claim for judicial review is dismissed.

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