Tribunal decisions

The decision

Case No: JR-2025-LON-000739

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

17 April 2026

Before:

UPPER TRIBUNAL JUDGE KAMARA

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Between:

THE KING
on the application of
Sutha Annadurai and another
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr J Gajjar
(instructed by KT Solicitors), for the applicant

Lord Murray of Blidworth
(instructed by the Government Legal Department) for the respondent

Hearing date: 9 March 2026

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J U D G M E N T

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Judge Kamara:
1. The first applicant (hereinafter referred to as the applicant) seeks to challenge the notice of the respondent dated 11 December 2024 rejecting, as invalid, her application for permission to remain as a Tier 2 (Skilled Worker) Migrant, in accordance with SW 1.5A of the Immigration Rules.
2. By way of background, the applicant, an Indian national, was granted entry clearance in August 2022, to study for a master’s degree at the University of Strathclyde. She entered the United Kingdom shortly thereafter.
3. On 1 February 2023, the respondent was notified by the University of Strathclyde that sponsorship of the applicant had been withdrawn because she had failed to enrol on her course. On 5 September 2023, the applicant’s leave was cancelled with effect from 4 November 2023.
4. On 2 November 2023, the applicant applied for leave to remain as a Tier 2 (Skilled Worker) Migrant with the second applicant in these proceedings (her husband Vetrivel Marimuthu) as a dependant. That application was rejected as invalid on 24 November 2023. The sole reason for rejecting the application was that the applicant had not completed her studies and therefore did not meet one of the mandatory conditions under Appendix Skilled Worker.
5. In response to the applicant’s pre-action protocol letters, the Secretary of State maintained the invalidity notice by way of PAP responses dated 20 December 2023 and 22 February 2024.
6. The applicant filed judicial review proceedings on 26 February 2024 (JR-2024-LON-000539) and those proceedings were settled by consent on 14 August 2024 with an agreement for the respondent to reconsider the decision of 24 November 2023 within three months, absent special circumstances.
7. On 2 September 2024 the applicant was sent a Minded to Reject (MTR) letter. Following the applicant’s response to the MTR letter in which she sought the exercise of discretion, the application was reconsidered and rejected once more on 11 December 2024 for the same reasons as given in the notice of 24 November 2023. In addition, following consideration of the additional information provided by the applicant’s current solicitors on 6 September 2024 in response to the MTR letter, the respondent declined to exercise her discretion in the applicant’s favour.
8. The respondent replied to the applicant’s subsequent PAP letter on 13 March 2025. In the meantime, the applicant had lodged the instant proceedings on 10 March 2025.
9. Permission to proceed with this claim was granted on 30 September 2025 in respect of the second of the two grounds advanced by Ms Jegarajah of Counsel.
10. In brief, the second ground contended that the decision of 11 December 2024 breached the respondent’s guidance, ‘Cancellation and curtailment of permission’ (Version 5.0 5 March 2024), 'Skilled Worker caseworker guidance' (Version 11.0 - 4 April 2024) and ‘Validation, variation, voiding and withdrawal of applications' (Version 9.0 - 14 November 2023), and, furthermore, failed to apply the correct legal test in SW1.6 of Appendix Skilled Worker.
11. The relief sought was that the MTR notice of 2 September 2024 and decision of 11 December 2024 be withdrawn and there be a reconsideration, with a meaningful remaking of the decision which engaged with the applicant’s evidence and representations.
12. In granting permission on 26 September 2025, Upper Tribunal Judge Neville made the following remarks:
Under Ground 2 however, it is arguable that, in the context of this decision: (i) the reasons given for rejecting the exceptional circumstances are insufficient to demonstrate that the decision was properly taken, and (ii) a duty to give such reasons applied. I am unsure that the guidance’s requirements to give reasons goes any further than the common law in that respect, but the citing of the former excuses the grounds’ surprising failure to plead the latter.
Submissions at the substantive hearing
13. Mr Gajjar confirmed that reliance was still sought on the sole ground upon which permission had been granted. He confirmed that the challenge was to the adequacy of reasons provided in the notice of invalidity dated 11 December 2023. Mr Gajjar referred to the evidence provided to the respondent in response to the MTR letter, which was said to go to compelling or compassionate circumstances. It is common ground that there was no explicit reference by the respondent to the content of the applicant’s representations nor supporting material.
14. Mr Gajjar contended that Islam [2025] EWCA Civ 458 did not justify the absence of a reasoned response in the evidential context of this case and sought to distinguish the applicant’s case from that of the claimant in Islam primarily on the basis of differing facts. He further argued that the issue before the Court of Appeal was a differing one, that is whether there was a legally enforceable duty to consider whether to waive the invalidity requirement.
15. Mr Gajjar accepted that the respondent is entitled to reject on the basis of a failure to meet the requirements of SW 1.6 alone, without reasons. He argued that the respondent can also choose not to do so and, in this case, had embarked upon a course of considering discretion but had given no indication what she made of the applicant’s claims.
16. Mr Gajjar accepted that an application such as that of the applicant, which does not meet the requirements of SW1.5A, may lawfully be refused; however, unlike the position in Islam, a “minded‑to‑refuse” process was initiated in this case, prompting the applicant to provide representations which required proper consideration.
17. Lord Murray, in his succinct submissions argued that had the judgment in Islam been before Upper Tribunal Judge Neville, who considered the application on the papers, permission would not have been granted.
18. Lord Murray suggested that it was open to the applicant to seek entry as a Skilled Worker by applying from outside the United Kingdom rather than attempting to switch. In this he referred to 7.12 of the Explanatory Memorandum extracted at [4] of Islam, which stated that the government’s aim was to ensure that students are not switching in-country to another route until they have completed their courses. He argued that the attempted distinction was not made out given the findings in Islam and that there was no entitlement to have the substance of an application considered. Lord Murray emphasised that the respondent had not made a decision but had merely rejected an invalid claim. That the respondent did, nonetheless, engage with the material put forward by the applicant before rejecting her claim, did not entitle her to reasons.
19. In reply, Mr Gajjar made three short points and thereafter urged the Upper Tribunal to grant relief. Firstly, he argued that there was an obligation on the respondent to give reasons when the applicant had been invited to respond to the MTR notice. Secondly, the point made at [31] of Islam regarding the ramifications a further conscious decision having to be made, did not apply as the respondent had already done so in the decision under challenge. Lastly, the example in [33] of Islam of a minimal error did not identify the boundary to which discretion should be exercised.
Legal framework
20. Paragraph SW 1.5A. Immigration Rules Appendix Skilled Worker states:
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 4 months after the start date of that course.
Paragraph SW 1.6. Skilled Worker states:
An application which does not meet the validity requirements for a Skilled Worker is invalid and may be rejected and not considered.
The respondent’s guidance of 14 November 2023, ‘Validation, variation voiding and withdrawal of applications,’ version 9.0, states at pp 6 & 18:
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”.
Requirement: previous leave
Routes which have their own rules on validity requirements (where paragraph 34 does not apply) set out what previous permission an applicant must have had to make an application under that route. For example, Appendix Skilled Worker contains a validity rule as follows:
'SW 1.5. An applicant who is applying for permission to stay must be in the UK on the date of application and must not have, or have last been granted, permission:
as a Visitor; or
as a Short-term student; or
as a Parent of a Child Student;
or as a Seasonal Worker; or
as a Domestic Worker in a Private Household; or
outside the Immigration Rules.'
If an applicant had, or was last granted, the type of permission set out above, 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.
21. The case of Islam [2025] EWCA Civ 458 concerned a student who applied to switch to a Skilled Worker visa three days after the rule change was brought about (SW 1.5A) that barred most students from switching mid‑course, rendering his application invalid. He argued that the Secretary of State was obliged to consider exercising discretion under SW 1.6 because it said an invalid application “may” be rejected.
22. In Islam, the Court of Appeal rejected this, holding that “may” in SW 1.6 does not confer a duty to consider treating an invalid application as valid, but simply entitles the Secretary of State to reject it without considering its merits. The Court stated that the validity requirements function as a filter, and fairness only requires correctly determining whether the application is valid and not in exercising a broad discretion.
Discussion
23. It is argued on the applicant’s behalf that the conclusions of the Court of Appeal in Islam are not applicable to her circumstances. That argument is not accepted.
24. While it is the case that the MTR process was not a feature in Islam and no representations were made regarding the potential exercise of discretion, it is not accepted that this distinguishes the applicant’s case. Indeed, in the absence of any dispute regarding the applicant’s inability to meet the mandatory Conditions of SW 1.5A, her position, in substance, is indistinguishable from that of the claimant in Islam.
25. At [27] of Islam, the analysis of Peter Jackson, LJ was that the sensible construction of SW 1.6 was 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.’
26. I am guided by what was said at [30] of Islam regarding the distinction between rejection of an application on invalidity grounds and a decision to refuse an application after a full consideration of the merits. In the instant case, it is accepted that the application was invalid. According to Islam, the respondent is required to do no more once the determination of the validity issue has been fairly considered.
27. Mr Gajjar rightly observes that the respondent did engage with the applicants’ representations in response to the MTR letter, and, he further argues, that a ‘conscious decision’ was the result. This point is addressed at [31] of Islam as follows:
(1) As Mr Malik accepted, a further conscious decision would be required in respect of every invalid application. Adding an extra decision-making stage would negate the purpose for which the filter, with its accompanying fee waiver, was intended. Far from achieving fairness, that burden would work against fairness and good order in the system as a whole.
(2) If a discretion existed, it would be impossible to exercise it without an investigation of suitability and eligibility that the filter is plainly designed to avoid. Anything less would be an empty and formalistic exercise.
(3) Rule SW 17.1 provides that valid applications must be refused if the suitability and eligibility requirements are not met. It would be a perverse and unintended outcome if makers of invalid applications were in a better position to challenge decisions.
28. While the respondent did introduce a further decision into the process by responding to the applicant’s representations, this does not equate to an entitlement to such a decision, far less a decision which engages with each, and every claim made and piece of evidence adduced.
29. I find Lord Murray’s submission that the MTR process was adopted in the applicant’s case as a matter of good administration to be persuasive. The respondent’s consideration of what the applicant had to say was a demonstration of fairness nonetheless, she need not have considered it at all. That the respondent did engage with the applicant’s representations does not strengthen this claim given that no decision requiring reasons was made in relation to the Skilled Worker application.
30. Ultimately, the applicant had the benefit of the consideration of her circumstances to which she was not entitled in the first place. That consideration took place some months prior to the judgment in Islam being handed down in April 2025. As Islam demonstrates, fairness in the applicant’s circumstances, does not require more than a just determination of whether the validity requirements were met.
31. Mr Gajjar’s submission that the type of trivial error in an application referred to at [33] of Islam was no more than an example is undoubtedly correct. Nonetheless, it is not the applicant’s case that a minor matter is in play. The representations in her case refer to an accident, a surgical procedure and being the victim of a fraudulent agent, none of which could be regarded as trivial.
32. Paragraph 35 of Islam provides a complete answer to the applicant’s case
… 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.
33. Furthermore, Andrews LJ’s observations at [41] further clarify the position the applicant finds herself in.
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. In that context, the word “may” in SW1.6 is plainly being used in the sense of “is entitled to” and makes it clear that the Secretary of State can reject the application on that basis alone, and without giving any further reasons than those which suffice to explain why the application is invalid. The decision maker has no obligation to consider the application further, as SW1.6 spells out.
34. As demonstrated by Islam, the respondent was not required to consider the substance of the application for further leave, there is little to be gained from examining the alleged adequacy of the reasons given in the impugned invalidity notice and I decline to do so.
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