Court of Appeal rejects student’s attempt to switch into skilled worker route

The Court of Appeal has rejected a student’s argument that the Home Secretary should have exercised discretion and considered his application to switch into the skilled worker route, instead of rejecting it for not meeting the validity requirements after a rule change came into force prohibiting such a move. The case is R (Islam) v Secretary of State for the Home Department [2025] EWCA Civ 458.

Background

The appellant came to the UK in January 2023 on a student visa valid until October 2025. On 20 July 2023 he applied to switch to the skilled worker route, with a Certificate of Sponsorship dated 16 June 2023 from an employer proposing to employ him as a care worker.

The application was rejected as invalid on 25 July 2023 because the immigration rules had been changed on 17 July 2023 to exclude students from switching into the skilled worker route before completing their course of study. The appellant sought judicial review of the decision.

The appellant did not dispute the fact that he did not meet the requirements of the immigration rules at the date of his application, but argued that the Home Secretary “had a legally enforceable duty to consider whether to waive the invalidity of the application before rejecting it”.

The appellant relied on paragraph SW 1.6 which said “An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered.” The appellant argued that the word “may” meant that the Home Secretary must make a decision on whether or not discretion should be exercised before rejecting an application as invalid.

The Upper Tribunal rejected this argument after considering the application on the papers, saying that it was “unarguable”. The permission application was renewed to an oral hearing and when refusing it, the judge said that SW 1.6:

does not arguably permit the Respondent to treat as valid in his discretion an application which is invalid. What it does is permit the Respondent to treat as invalid without consideration (rather than refuse) an application which does not meet the validity requirements. That is precisely what the Decision does. The Applicant’s interpretation of that provision as including a discretion to treat an invalid application as valid is not arguable.

The judge said that even if the appellant’s interpretation was correct, the Home Secretary’s decision not to exercise discretion was not arguably irrational, pointing out that there would have been others in the same situation as the appellant and preventing these applications was the purpose of the rule change and was why it had been brought into force immediately and with no transitional provisions.

The Court of Appeal

The Court of Appeal granted permission to appeal because of the possibility of interpreting the “may” in SW 1.6 in different ways. The first is that it allowed the Home Secretary to reject the application without any consideration, the second that there was a discretion which the Home Secretary must consider exercising.

The Court of Appeal said that:

As a matter of language we must, as Lord Brown has ordained, construe the words of SW 1.6 sensibly, according to their natural and ordinary meaning, recognising that they are statements of the Secretary of State’s administrative policy. In my reading, the sensible construction of the sentence

“An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered.”

is that the decision maker is entitled to reject a non-compliant application without any consideration whatever of the underlying merits of the application. This is strongly supported by the words validity requirements, rejected as invalid, and not considered.

When considering the appellant’s argument for the alternative meaning of the word “may”, the court described this as a “slender foundation” and that the “logic is unsound because it assumes that the word has only one possible sense”. The court went on to set out the different uses for the word and concluded that in the context of the rule, the correct interpretation pointed to “may” as meaning “is permitted to”.

The court went on to say that if “the appellant’s argument were correct, the ramifications would be wide and undesirable” because an additional decision making stage would be required for every invalid application, which is precisely what the rules are designed to avoid.

Conclusion

Despite the failure of the appeal, the Home Secretary was not awarded her costs because the skeleton argument was produced very late and the court admitted it only on condition that if the appeal did not succeed then the Home Secretary would not be entitled to her costs.