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

Neutral Citation Number: [2026] EWCA Civ 561 Case Nos: CA-2025-000760 CA-2025-001169 CA-2025-001539 CA-2025-001540 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) Upper Tribunal Judge Smith (JR-2024-LON-003040) Upper Tribunal Judge Ruddick (JR-2025-LON-000080) Upper Tribunal Judge Rimmington (JR-2025-LON-000423) Upper Tribunal Judge Rimmington (JR-2025-LON-000183) Royal Courts of Justice Strand, London, WC2A 2LL Date: 11 May 2026 Before: LORD JUSTICE ARNOLD LADY JUSTICE ELISABETH LAING and LORD JUSTICE WARBY – – – – – – – – – – – – – – – – – – – – – Between: (1) MATHAVAN KALIDASAN (2) SATHISH KALIYAMOORTHY (3) RAM BAIRAVAN PERIYASAMY (4) VIGNESH MUTHUSAMY Appellants – and – SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Zane Malik KCand Shivani Jegarajah (instructed by KT Solicitors) for the Appellants Lord Murray of Blidworth (instructed bythe Treasury Solicitor) for the Respondent Hearing date: 29 April 2026 – – – – – – – – – – – – – – – – – – – – – Approved Judgment This judgment was handed down remotely at 11am on 11 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ……………………….. Lady Justice Elisabeth Laing: Introduction

1. The four Appellants appeal in four linked appeals against refusals by the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’) to give them permission to apply for judicial review under section 15(1) of the Tribunals Courts and Enforcement Act (’the 2007 Act’) of decisions of the Secretary of State refusing their applications for leave to remain. Permission to appeal was given in all four cases by Arnold LJ; in two on 30 July 2025, and in the other two on 19 November 2025. I say more about those decisions in paragraph 8, below.

2. On 17 July 2023, paragraph SW1.5A was inserted in the Immigration Rules (HC 395 as amended) (‘the Rules’), Appendix Skilled Worker, with immediate effect. Its apparent purpose was to stop those who enter, or are in, the United Kingdom with leave as students, from ‘switching’ to another category in the Rules before they finish the particular course of study for which they were given leave to enter or remain. The changes had been announced in May 2023. The Appellants were all given entry clearance as students to study on a specific course. All say that they were defrauded of the money to pay their course fees. No Appellant even started his course, still less finished it. All stayed on in the United Kingdom, nevertheless, and eventually applied to switch to the skilled worker category. All, apart from Mr Kalidasan, appear to have been overstayers when they made their applications to switch. The issues on these appeals are whether the Secretary of State is obliged, when refusing such an application to switch, to give reasons for her decision not to waive the validity requirements in paragraph SW1.6, and/or for any concurrent decision to refuse leave to remain outside the Rules (‘LOTR’), and, if so, whether the reasons given in these cases were enough.

3. I would give all four Appellants permission to apply for judicial review, as I consider that, by reference to a composite ground of appeal drafted by counsel for this appeal (see paragraph 11, below), their claims are arguable, whether or not some or all of them were clearly pleaded in that way in the UT. I prefer not to say anything which might influence the UT’s decision(s) on the merits of the claims, so I will only give brief reasons for my view that the claims are arguable.

4. On this appeal, we had very helpful and able arguments from Mr Zane Malik KC for the Appellants and from Lord Murray of Blidworth for the Secretary of State. I thank both counsel for the help they have given me in understanding the facts, and the legal and policy issues.

5. Before I give brief reasons for my view that the claims for judicial review are arguable, I will summarise this court’s powers on an appeal against a refusal of permission to apply for judicial review by the UT, the reasons for the grants of permission to appeal in these cases, the original grounds for judicial review, the composite ground of appeal to this court, and the legal background. This court’s powers on an application for permission to appeal against a refusal of permission to apply for judicial review by the UT

6. It was common ground that, as a result of a gap in the relevant legislation, this court cannot give permission to apply for judicial review when considering an application for permission to appeal in cases like this; it can only give permission to appeal (see paragraphs 18, 22, 23, 40, 42 and 43 of R (NB) Algeria v Secretary of State for the Home Department [2012] EWCA Civ 1250; [2013] 1 WLR 31). Once it has given permission to appeal, however, it may, after the substantive hearing, give any relief which the UT could have given under section 15(1) of the 2007 Act (see section 16(8) of the 2007 Act).

7. We asked the parties for their views whether, if we were to allow the appeals and give permission to apply for judicial review, we should then go on to decide the applications for judicial review on their merits. Lord Murray told us that the Secretary of State would be disadvantaged if we were to do that, so I would not decide the applications on their merits, but would remit them to the UT, having given the Appellants permission to amend their grounds for judicial review so as to plead, where appropriate, grounds for judicial review which reflect the composite ground of appeal to which I referred in paragraph 3, above. The reasons for the grants of permission to appeal in these appeals

8. All the grants of permission to appeal were made after this court handed down its decision in Islam v Secretary of State for the Home Department [2025] EWCA Civ 45 (‘Islam’). I say more about Islam in paragraphs 16-22 below. The basis of the first two grants of permission to appeal was that it was arguable that the Secretary of State was required to give reasons for declining to exercise the discretion conferred by paragraph SW.1.6, or to give LOTR, and that it was arguable that the Secretary of State had not given sufficient reasons. The basis of the grant in the two later appeals was that while Islam appeared to decide that the Secretary of State has no duty to decide whether or not to exercise the discretion conferred by paragraph SW.1.6 when an application is invalid under paragraph SW.1.5A, if the Secretary of State does decide to exercise that discretion, it was arguable that she was obliged to give reasons for not exercising discretion in an applicant’s favour, and that she had not given sufficient reasons in the two relevant cases. The Secretary of State was expressly asked, in the first two grants of permission to appeal, whether she would consent to the grant of permission to apply for judicial review. She did not reply to those invitations. The grounds for judicial review

9. Counsel showed us the grounds for judicial review in each case. As this is only a decision on permission to apply for judicial review, I will not set out the original grounds or the renewal grounds in each case. There is force (more force in some cases than in others) that the two arguments in the composite ground of appeal were either not pleaded, or not distinctly pleaded in each case, but Lord Murray did not submit with any vigour that any of the Appellants should be refused permission to apply for judicial review on the ground that the points were not pleaded or were not adequately pleaded. I would not refuse permission to apply for judicial review on those grounds, not least because the Secretary of State has had notice of the composite ground of appeal since January this year, and has been able to prepare her arguments on the two points of principle in the light of that.

10. My impression is that each of the Appellants expressly communicated a request for LOTR to the Secretary of State before the decision in his case was made. I would not, however, prevent the Secretary of State from relying in the UT, if she wishes to, on any failure to refer, in the relevant application form, to the covering letter in which any such request was made, and on any other relevant points which arise from the evidence in the individual cases. The composite ground of appeal

11. This ground of appeal is that ‘The Secretary of State was obliged to properly engage with the evidence of [the Appellants] and to give adequate reasons for declining to exercise discretion under paragraph SW1.6A of the [Rules] or outside the [Rules]. It is arguable that her approach to the exercise of discretion was flawed and that her reasons were defective and inadequate in each case. In the circumstances, [the UT] erred in refusing the applications for permission to apply for judicial review’. The legal framework The Immigration Act 1971

12. Section 3(1) of the Immigration Act 1971 (‘the 1971 Act’) gives the Secretary of State power to give leave to enter and remain. The Rules are statements of the Secretary of State’s policy (or ‘practice’) to be followed in the administration of the 1971 Act. She is obliged from time to time to publish such statements. Parliament may disapprove those statements by negative resolution (sections 3(2) and 1(4) of the 1971 Act). I accept Mr Malik’s uncontroversial submission that the power to give leave is given by section 3(1) of the 1971 Act. It is not conferred by the Rules. It follows that, whatever the Rules may say, the Secretary of State has a statutory power to grant LOTR.

13. Mr Malik referred us to Behary v Secretary of State for the Home Department [2016] EWCA Civ 702; [2016] 4 WLR

136. In paragraph 38 of his judgment, Burnett LJ (as he then was) (with whom Sir Stephen Richards and Hallett LJ agreed) recorded Mr Malik’s concession that the Secretary of State is not obliged, in every case, to consider whether to grant LOTR, if the applicant has not asked for it. His submission was that whether there was such an obligation depended on the facts, and that Mr Ullah’s case had been ‘a very near miss’ under the Rules.

14. Burnett LJ held, in paragraph 39, that the Secretary of State was not obliged to consider a grant of LOTR in Mr Ullah’s case. Mr Ullah had had professional advice, and there was ‘nothing in his circumstances that could engage a public law duty to consider the exercise of the discretion’. There was an obligation to do so if the applicant asked for LOTR, and ‘if but briefly’ to ‘deal with any material relied on by an applicant in support’. There was also a theoretical possibility ‘the facts might be so striking that it would be irrational in a public law sense not to consider the grant of [LOTR] or at least seek clarification from the applicant whether he was seeking such leave’. Appendix Skilled Worker

15. Paragraphs SW 1.1 – SW 1.6 are headed ‘Validity requirements for a Skilled Worker’. Paragraph SW 1.5A lists three conditions which apply at the date of any application. One of those must be met if an applicant for permission to stay as a Skilled Worker ‘has, or last had, permission as a Student’. Only the first condition is relevant in these cases. It is that the applicant must have finished the course which was the subject of that permission to stay. That condition was not met by any of the Appellants, as none had even started the relevant course. Paragraph SW 1.6 provides: ‘An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered’. Islam

16. The appellant in Islam also appealed to this court against a refusal by the UT of permission to apply for judicial review. He entered the United Kingdom in January 2023 on a student visa. His leave would have expired in October 2025. On 20 July 2023 he applied to switch to permission to stay as a Skilled Worker. On 25 July 2023, the Secretary of State refused his application as invalid, and returned his application fee, less a small administration fee. It was agreed that his application was invalid. The appellant had not asked the Secretary of State to exercise her discretion to waive the invalidity of his application (see paragraph 10(5) of the judgment of Peter Jackson LJ, quoting Upper Tribunal Judge Smith’s reasons for refusing permission to apply for judicial review).

17. The issue was whether the Secretary of State had ‘a legally enforceable duty to consider whether to waive the invalidity of the application before rejecting it’ (per Peter Jackson LJ, at paragraph 2 of a judgment with which the two other members of this court agreed). The appellant argued that the Secretary of State had a discretion which she must exercise before deciding to reject an application as invalid. She had not understood that she had had a discretion, and had not exercised it. Her decision to reject the application was therefore unlawful. As Peter Jackson LJ explained in paragraph 27, the ‘sensible construction’ of paragraph SW 1.6 was that the Secretary of State was ‘entitled to reject a non-compliant application without any consideration whatever of the underlying merits of the application’. The word ‘may’ was the only pointer the other way. He further explained, in paragraph 28, that ‘may’ has different meanings. In this context, it means ‘is absolutely entitled to’.

18. In paragraph 30, he described the ‘familiar and sensible’ difference between ‘rejection for invalidity’ and ‘refusal after consideration’. SW 1.6 and other similar provisions in the Rules were a ‘filter’ for getting invalid applications out of the system, so as to enable decision-makers to concentrate their resources on the suitability and eligibility of applicants who have made valid applications. Fairness did not require a decision-maker to do more than to see whether the application was valid or not.

19. In paragraph 31 he described three undesirable consequences of the appellant’s construction. A decision-maker would have to make a further conscious decision about every invalid application, negating the purpose of the filter. A decision-maker would have to investigate the very issues which the filter was designed to avoid. It would have a perverse consequence. Paragraph SW 17.1 requires decision-makers to refuse an applicant if the suitability and eligibility requirements are not met. The appellant’s construction would put those who make invalid applications in a better position than the applicants to whom paragraph SW 17.1 applies. His conclusion was that paragraph SW 1.6 entitled a decision-maker to reject an application ‘which has properly been determined to be invalid without any further consideration’ (paragraph 35).

20. Andrews LJ (with whose judgment Phillips LJ also agreed) agreed with Peter Jackson LJ’s judgment but added ‘a few observations of my own’. A student who did not meet the conditions in paragraph SW 1.5A did not ‘cross the threshold for consideration’. ‘May’ simply means ‘entitled to’. That was why the application fee was refunded (with a small deduction) (paragraph 41).

21. The appellant’s construction would mean that the Secretary of State would have to explain why she had decided to reject an invalid application. That would ‘achieve nothing unless there may have been some good reason to accept it, and that in turn raises the spectre of having to consider the substance of the application…in other words, it would defeat the very purpose which the change in the Rules was designed to achieve’ (paragraph 42).

22. In paragraphs 43 and 44 (paragraphs with which Peter Jackson LJ agreed), she explained why she thought that Upper Tribunal Judge Smith had expressed herself as she had done. She had not read the word ‘may’ as meaning ‘must’. The Secretary of State could ‘obviously’ choose to waive the validity requirements. That was not the exercise of a discretion to treat an invalid application as valid, but the exercise of discretion to waive that invalidity. The existence of that discretion did not require the Secretary of State to consider whether to exercise it in every case ‘and to demonstrate in the decision 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’ (original emphasis). The relevant policies

23. We were referred to two relevant policies: ‘Validation, Variation, Voiding and Withdrawal of Applications’ and ‘Leave Outside the Rules (LOTR) on compelling and compassionate grounds’ (‘Policy 2’). Policy 2 deals with applications for LOTR which are not made on human rights grounds. I do not need to say much about either policy. Lord Murray relied extensively on Policy 2 for submissions that none of these cases was an appropriate case for LOTR under Policy

2. That may well be true: but none of the decisions about LOTR gave explanations of that kind. Discussion

24. It is arguable, post Islam, that if, confronted with an invalid application, the Secretary of State chooses to engage, in a refusal decision, with the arguments made by an applicant in support of his invalid application, she could be said to have decided to exercise the power to waive the invalidity of that application which was recognised by Andrews LJ. It is further arguable that, if she decides, having adverted to it, not to exercise that power in an applicant’s favour, she should explain her approach. If that provisional analysis is right, the Secretary of State might well choose not to give any indication that she has exercised such a power, and to say no more than that she has treated the application as invalid and has not considered it further. If she were to say more than that, there is a risk that she would expose herself to the risk of challenge if she did not then explain why (if she does not waive the invalidity) she has decided not to waive the invalidity of the application.

25. The decisions which were challenged in these four cases were all made before the decision in Islam. I will not describe the decisions in detail, but it is arguable that their authors might not have understood their absolute entitlement to reject the applications in these cases as invalid, without more. It is also arguable that they did not understand that the exercise of the discretion to waive invalidity is different from the exercise of the discretion to grant LOTR, and that it is arguable that reasons should be given for the exercise or refusal to exercise each discretion, if the exercise of that discretion has been considered (although the reasons may well overlap). I will say nothing about the extent of the duty to give reasons in either case, as that is best decided by the UT (see paragraph 7, above). Conclusion

26. For those reasons, I would give the Appellants permission to apply for judicial review, and would remit the applications for judicial review to the UT, for the Appellants to argue the composite ground (see paragraph 11, above). The Secretary of State must be given the opportunity to serve detailed grounds and to rely on evidence, if she wishes to, and to raise whichever points she thinks may be appropriate on the evidence (see paragraph 10, above). Subject to that, it will be for the UT to decide how best to manage these, and any similar, applications for judicial review. Lord Justice Warby

27. I agree. Lord Justice Arnold

28. I also agree.