Kaur & Ors, R (on the application of) v Secretary of State for the Home Department

Paragraph SW2.2 of the Immigration Rules creates separate suitability bars. An applicant must not be in breach of immigration laws, subject to the limited disregard for overstaying where paragraph 39E applies, and must not be on immigration bail. Satisfying paragraph 39E does not displace the immigration-bail bar. The Rules are construed primarily from their natural and ordinary meaning, without importing a free-standing policy from outside the Rules. A person whose leave ends on notification of refusal becomes liable to removal and detention and may be granted immigration bail under Schedule 10 to the Immigration Act 2016. A later challenge cannot ordinarily reopen an earlier decision that was not challenged promptly. Historical injustice has no relevance where no unlawful treatment is shown.

Ms Kaur’s section 3C leave ended when the Secretary of State notified her by email on 28 April 2023 that her human-rights application had been refused and certified as clearly unfounded. She was placed on immigration bail the same day. She later applied for leave as a skilled worker, but that application was refused because she was on immigration bail under paragraph SW2.2(b) of Appendix Skilled Worker. Her administrative review was unsuccessful.

The Upper Tribunal, on renewal, refused permission to apply for judicial review, holding that paragraph SW2.2 was clear and that the challenge to the bail decision was out of time and unarguable. The appeal concerned the meaning of paragraph SW2.2, the lawfulness of the earlier bail decision, historical injustice, material considerations and extension of time.

1. Appeal dismissed. Paragraph SW2.1 and paragraph SW2.2 create three separate bars to a successful Skilled Worker application: refusal under Part 9, being in breach of immigration laws, and being on immigration bail. The second bar is qualified by paragraph SW2.2(a), which incorporates the paragraph 39E disregard for a qualifying period of overstaying. Paragraph SW2.2(b) is unqualified.
2. The word “or” separates the two bars in paragraph SW2.2. Nothing in the Rules makes the paragraph 39E exception override paragraph SW2.2(b). If both conditions apply, either is sufficient to defeat the application. Paragraph 39E is procedural and has no independent effect; the operative disregard is created by paragraph SW2.2(a). The construction does not nullify the disregard because it benefits an applicant who is not on immigration bail.
3. The Rules are statements of the Secretary of State’s policy and are not delegated legislation. They are construed sensibly according to their natural and ordinary meaning, with general principles of statutory construction applying. Purpose is identified objectively from the words used, rather than from supposed policy considerations outside the Rules. The approach accords with Mahad v Entry Clearance Officer [2009] UKSC 16 and R (Wang) v Secretary of State for the Home Department [2023] UKSC 21. Odelola v Secretary of State for the Home Department [2009] UKHL 25 and R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33 establish the legal status of the Rules and the requirement that immigration requirements appear in them.
4. Ms Kaur could have challenged the earlier refusal and bail decision by judicial review promptly and, in any event, within three months. She did not do so, did not explain the delay and did not seek an extension. The Upper Tribunal therefore had no basis to extend time or to examine the lawfulness of the bail decision in the later proceedings.
5. Notification of refusal on 28 April 2023 immediately ended the section 3C extension under the applicable notice regulations. Ms Kaur was then an overstayer, liable to removal and detention pending removal, and within the power to grant immigration bail under paragraph 1(2) of Schedule 10 to the Immigration Act 2016. R (Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875 establishes that liability to detention means liability in principle; it does not require detention also to be lawful under the Hardial Singh principles. The possibility of a further application within paragraph 39E was not an arguably material consideration.
6. The historical-injustice concept discussed in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 00351 (IAC) may be relevant to Article 8 proportionality in an appropriate human-rights appeal. This was judicial review concerning the Rules and the bail power, not a statutory human-rights appeal. In any event, no unlawful treatment or other injustice was shown.

• Court of Appeal (Civil Division) — [2025] EWCA Civ 1474: appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber) — JR-2024-LON-001009: permission to apply for judicial review was refused on the papers and again refused after an oral renewal hearing.