Court of Appeal finds four students’ challenges to Home Office refusals arguable

The Court of Appeal has held that four judicial review claims over refused applications to switch from student leave to the Skilled Worker route are arguable, and has sent them back to the Upper Tribunal.

The Court of Appeal (Civil Division) handed down its judgment in Mathavan Kalidasan & Ors v Secretary of State for the Home Department [2026] EWCA Civ 561 on 11 May 2026. Lady Justice Elisabeth Laing gave the judgment, and Lord Justice Warby and Lord Justice Arnold agreed. The hearing took place on 29 April 2026.

Background

On 17 July 2023, paragraph SW1.5A was added to the Skilled Worker appendix of the Immigration Rules with immediate effect. Its apparent purpose was to stop people with student leave from switching to another category before finishing the course for which they were given leave.

All four appellants were given entry clearance as students. All said they had been defrauded of the money for their course fees, and none started the course. They stayed in the UK and later applied to switch to the Skilled Worker category. Apart from Mr Kalidasan, all appear to have been overstayers when they applied.

The Upper Tribunal (Immigration and Asylum Chamber) refused each of them permission to apply for judicial review of the Home Secretary's refusals. Lord Justice Arnold gave permission to appeal.

The question

The court had to consider whether the Home Secretary must give reasons, when refusing such an application, for deciding not to waive the validity requirements in paragraph SW1.6, or for any concurrent decision to refuse leave outside the Rules. If so, it had to consider whether the reasons given in these cases were enough.

The decision

Lady Justice Elisabeth Laing said she would give all four appellants permission to apply for judicial review and remit the claims to the Upper Tribunal, and the other two judges agreed. The court noted that it could not itself give permission to apply for judicial review at the permission-to-appeal stage, but could give relief the Upper Tribunal could have given after the substantive hearing. It did not decide the claims on their merits and gave only brief reasons.

The appellants were to be allowed to amend their grounds. The Home Secretary must be given the opportunity to serve detailed grounds and rely on evidence. Subject to that, it will be for the Upper Tribunal to decide how best to manage these and any similar applications.

The reasoning

The court referred to its earlier decision in Islam v Secretary of State for the Home Department [2025] EWCA Civ 45. In that case the judges said the Home Secretary may reject a non-compliant application as invalid without considering its merits, and that "may" in paragraph SW1.6 means "entitled to".

Lady Justice Elisabeth Laing found it arguable that, if the Home Secretary chooses to engage with an applicant's arguments in a refusal decision, she could be said to have exercised the power to waive invalidity. It is further arguable that, having considered it and declined to waive, she should explain her approach. It is also arguable that reasons should be given separately for the waiver decision and the decision on leave outside the Rules, if each has been considered, even if the reasons overlap.

All four decisions were made before Islam, and it is arguable that their authors did not understand their absolute entitlement to reject the applications as invalid. The extent of any duty to give reasons was left for the Upper Tribunal.

Sources

• Mathavan Kalidasan & Ors v Secretary of State for the Home Department [2026] EWCA Civ 561, Court of Appeal (Civil Division), 11 May 2026