Mathavan Kalidasan & Ors v Secretary of State for the Home Department

Under the Immigration Rules (HC 395 as amended), an application to switch from Student to Skilled Worker may be rejected as invalid without consideration of its merits. A power to waive invalidity does not require consideration of waiver in every case. But if the Secretary of State engages with arguments supporting an invalid application, or adverts to waiver and declines it, it is arguable that reasons are required. The same may apply to a considered discretion to grant leave outside the Rules. The extent and adequacy of any duty remain for the Upper Tribunal. After the substantive hearing of an appeal from refusal of judicial-review permission, the Court of Appeal may grant that permission under the Tribunals Courts and Enforcement Act 2007, but should remit the merits where fairness requires.

Four appellants had entered the United Kingdom with student entry clearance to study specified courses. Each alleged that he had been defrauded of the money needed to pay the course fees, and none began his course. Each later applied to switch to the Skilled Worker category. Three were apparently overstayers when they applied.

The Secretary of State refused the applications as invalid and made, or was said to have made, concurrent decisions concerning leave outside the Rules. The Upper Tribunal refused permission to apply for judicial review in four cases: JR-2024-LON-003040, JR-2025-LON-000080, JR-2025-LON-000423 and JR-2025-LON-000183. The Court of Appeal considered whether reasons were required for declining to waive the validity requirements or grant leave outside the Rules, and whether the reasons given were adequate.

Disposition. The four appeals were allowed. The appellants were given permission to apply for judicial review, but the applications were remitted to the Upper Tribunal rather than being decided on their merits. The appellants were permitted to amend their grounds to plead the composite ground of appeal.

1. Appellate powers. The Court of Appeal could grant permission to appeal, but, because of a gap in the legislation, could not grant permission to apply for judicial review while deciding the permission applications. After the substantive hearing, section 16(8) of the Tribunals Courts and Enforcement Act 2007 enabled it to grant any relief available to the Upper Tribunal under section 15(1), including judicial-review permission. The court applied R (NB) Algeria v Secretary of State for the Home Department [2012] EWCA Civ 1250.
2. Source of the LOTR power. The power to grant leave outside the Rules arises from section 3(1) of the Immigration Act 1971. The Rules are statements of policy or practice for administering that statutory power and do not themselves confer it.
3. Invalidity and waiver. Paragraph SW1.5A required a student switching to Skilled Worker to have finished the relevant course. Paragraph SW1.6 permitted a properly invalid application to be rejected without further consideration. The court treated Islam v Secretary of State for the Home Department [2025] EWCA Civ 45 as establishing that the power to waive invalidity need not be considered in every case. Nevertheless, it was arguable that engagement with the applicant’s supporting arguments could amount to exercising that power, and that a refusal after adverting to it should be explained.
4. Reasons and LOTR. By reference to Behary v Secretary of State for the Home Department [2016] EWCA Civ 702, the court recognised the significance of a request for LOTR and the material relied on. It held only that it was arguable that reasons should be given for the exercise or refusal of each discretion where both had been considered, although the reasons might overlap. The scope of the duty, the adequacy of the reasons and the individual evidence were left to the Upper Tribunal.
5. Remittal. The Secretary of State was to have the opportunity to serve detailed grounds, rely on evidence and raise any appropriate points. The Upper Tribunal was to determine the judicial-review applications and manage them as appropriate.

• Court of Appeal (Civil Division). In four linked appeals, the court granted permission to appeal, allowed the appeals, granted permission to apply for judicial review and remitted the applications to the Upper Tribunal: [2026] EWCA Civ 561.
• Upper Tribunal (Immigration and Asylum Chamber). Upper Tribunal Judges Smith, Ruddick and Rimmington refused permission to apply for judicial review in the four cases identified by references JR-2024-LON-003040, JR-2025-LON-000080, JR-2025-LON-000423 and JR-2025-LON-000183.