Ashraful Islam, R (on the application of) v Secretary of State for the Home Department

Under paragraph SW 1.6 of the Immigration Rules, an application failing a mandatory validity requirement may be rejected as invalid and not considered. In that context, may confers an entitlement to reject, not a classic discretion requiring the Secretary of State to consider waiver in every case and give reasons. Procedural fairness requires the decision-maker to determine fairly whether the validity requirements are met. Once invalidity is established, fairness requires no further merits consideration. A power to waive a requirement does not itself create an enforceable duty to consider waiver.

The appellant entered the United Kingdom from Bangladesh on a student visa and applied to switch in-country to a five-year Skilled Worker visa. Three days before his application, paragraph SW 1.5A of the Immigration Rules had restricted such switching by students. The Secretary of State rejected the application as invalid. Upper Tribunal Judge Pickup refused permission on the papers, and Upper Tribunal Judge Smith refused permission after oral renewal. The appeal concerned whether paragraph SW 1.6 required the Secretary of State to consider exercising a discretion to waive the invalidity before rejecting the application.

The Court of Appeal unanimously dismissed the appeal.

1. Construction of the Rules. Immigration Rules are construed sensibly according to their natural and ordinary meaning, against the Rules as a whole and the administrative function they serve. The court applied the approach described in MO (Nigeria) v Secretary of State for the Home Department [2009] UKHL 25 and Mahad v Entry Clearance Officer [2009] UKSC 16. Paragraph SW 1.5A uses mandatory language and establishes conditions for a student application to cross the validity threshold.
2. Meaning of SW 1.6. The language of paragraph SW 1.6, particularly the references to validity, rejection as invalid and non-consideration, entitles the decision-maker to reject a properly determined invalid application without considering its underlying merits. In context, may means that the Secretary of State is entitled to reject the application. It does not impose a duty to conduct a balancing exercise or to consider waiver in every case. The Secretary of State may choose to overlook a requirement, but the existence of that power does not create an enforceable obligation to ask whether it should be exercised.
3. Fairness and administrative function. Applying the contextual approach to fairness described in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, the decision-maker must fairly determine whether the validity requirements are met. Once an application is invalid, the Rules’ filtering function requires no further consideration. A contrary interpretation would add a decision-making stage, potentially require investigation of suitability and eligibility, and undermine the distinction between rejection for invalidity and refusal after consideration.
4. The authorities relied on by the appellant, including Ukus (discretion: when reviewable) [2012] UKUT 00307(IAC), R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673 and Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157, concerned classic discretionary powers and had no real bearing on the validity filter. R (Behary and Ullah) v Secretary of State for the Home Department [2016] EWCA Civ 702 and Hippolyte v Secretary of State for the Home Department [2024] EWHC 2968 (Admin) concerned leave outside the Rules.
5. Even if a discretion had existed, the outcome would not have been substantially different. Relief would therefore also have been refused under section 16(3E) of the Tribunals, Courts and Enforcement Act 2007 or section 31A of the Senior Courts Act 1981. The respondent was denied costs because her skeleton argument was served substantially out of time.

• Court of Appeal (Civil Division): Appeal dismissed under [2025] EWCA Civ 458. The respondent was not awarded costs.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Pickup refused permission on the papers. On oral renewal, Upper Tribunal Judge Smith refused permission to apply for judicial review.