Skilled worker visa correctly refused because applicant was on immigration bail

A person refused a skilled worker visa because they were on immigration bail at the time of their application has lost their challenge in the Court of Appeal. The case is R (Kaur & Ors) v Secretary of State for the Home Department [2025] EWCA Civ 1474.

Background

The appellant was granted leave to enter the UK as a student with her husband and child as dependants. Three days before the expiry of that leave, on 9 May 2022 she applied for leave to remain on human rights grounds. The application was refused on 28 April 2023 and certified as clearly unfounded under section 94(3) and 94(1) of the Nationality, Immigration and Asylum Act 2002, meaning there was no right of appeal against the decision.

At the same time as the refusal, the appellant was put on immigration bail. On 12 May 2023 the appellant applied for leave to remain as a skilled worker. This was refused on 16 August 2023 on the grounds that she did not meet paragraph SW2.2(b) of the rules, which state as a suitability requirement that an applicant must not be on immigration bail.

The appellant sought administrative review of the refusal on the basis that the skilled worker application had been made in time under paragraph 39E of the rules, which sets out exceptions for overstayers. The response to the administrative review pointed out that there was no reference to overstaying in the refusal and she had been refused because she was on immigration bail. The refusal was maintained.

Judicial review

The appellant then sought judicial review on four grounds:

1. Decision 3 was ‘inconsistent with the statutory scheme provided under paragraph 39E’ and therefore unlawful.

2. Paragraph SW2.2(b) deprived Ms Kaur of ‘the real benefit of paragraph 39E’ and was unlawful to that extent.

3. The Secretary of State’s decision to grant immigration bail was ‘invalidated for reasons of procedural unfairness and error in law’.

4. Decision 3 was, in any event, ‘a result of a historic injustice as [Ms Kaur] was wrongfully granted immigration bail on 28 April 2023’.

Permission was refused on the papers by the Upper Tribunal on the basis that the grounds were unarguable. The application for permission was renewed to an oral hearing and refused again. The tribunal criticised the fourth ground as an attempt to make an out of time challenge to the decision to place the appellant on immigration bail.

The Court of Appeal

The appellant appealed to the Court of Appeal on five grounds:

1. The UT misinterpreted paragraph SW2.

2. The UT erred in not considering whether decision 2 [immigration bail] was lawful.

3. The UT erred in not considering whether Ms Kaur was the subject of an ‘historic injustice’.

4. The UT erred in not considering whether decision 3 [refusal of skilled worker application] was flawed by a failure to take relevant considerations into account.

5. The UT erred in failing to give Ms Kaur an extension of time to challenge decision 2.

The court dismissed ground 1, saying that paragraph 39E had “no independent effect” and that the clear effect of the words in paragraph SW2 was that “being on immigration bail is a bar to an application under the Appendix”.

No oral submissions were made on behalf of the appellant on grounds 2 and 5, which related to the grant of immigration bail. The Court of Appeal said that the appellant had not challenged the decision in her judicial review claim form, or explained why an in time challenge had not been made, or applied for an extension of time in the claim form. Given none of this was done, the Upper Tribunal could not be criticised for not extending time. These grounds were dismissed.

For ground 3, the court said that this is an appeal in a judicial review matter and turns primarily on the interpretation of the immigration rules. The concept of “historical injustice” is irrelevant, the court said, and even if it hadn’t been there was no unlawful treatment or other injustice to the appellant.

For ground 4 it was suggested “that before granting immigration bail, the Secretary of State is required to consider the possibility that a person might make a further application for leave in the period potentially permitted by paragraph 39E”. The court dismissed this, saying that “the possibility of a future application is not a consideration which is even arguably material to a decision whether or not to grant immigration bail”.

Conclusion

It is a bit of a mystery to me how this one got permission to go the Court of Appeal to be honest.