The Court of Appeal has confirmed that a skilled worker visa was correctly refused because the h
This article by Leena Chouhan explains a recent court case about a skilled worker visa. As it happened, the applicant was on immigration bail at the time she applied. The judgment in R (Kaur & Ors) v Secretary of State for the Home Department [2025] EWCA Civ 1474 provides a clear reminder that immigration bail creates an absolute bar under the suitability rules in Appendix Skilled Worker.
Background
Ms Kaur had entered the United Kingdom as a student with her husband and child as dependants. However, three days before her student leave expired in May 2022 she applied for leave to remain on human rights grounds. Subsequently, The Home Office refused that application almost a year later. Moreover, it also certified the claim as clearly unfounded which removed her right of appeal. The same decision placed her on immigration bail.
She then made a skilled worker application on 12 May 2023. Further to this, she was refused because she did not meet paragraph SW2.2(b) which states that an applicant must not be on immigration bail at the application date.
Following this news, Ms Kaur sought administrative review. Indeed, she argued that her application should have been treated as in time under paragraph 39E which preserves the ability to make certain applications after leave has expired. However, the Home Office maintained the refusal because the issue was her immigration bail status, not overstaying.
Judicial review
She challenged the refusal in the Upper Tribunal on four grounds. These ranged from an alleged inconsistency between paragraph 39E and the skilled worker rules, to arguments that the grant of immigration bail was unlawful, to a broader claim of historic injustice. Permission was refused on the papers, then again after an oral renewal. Additionally, the tribunal noted that part of the challenge was in substance an out of time attempt to contest the original grant of bail.
The Court of Appeal
Thus, the appeal advanced five grounds. In particular, the central argument was that the tribunal had misinterpreted the relationship between paragraph 39E and the suitability requirement in SW2.2(b).
Nevertheless, the Court of Appeal dismissed this point. It held that paragraph 39E has “no independent effect” in this context. The clear wording of SW2.2(b) creates a straightforward bar. That is, if a person is on immigration bail at the date of application, they cannot meet the suitability requirements for a skilled worker visa.
In fact, no submissions were made on the grounds relating to the lawfulness of the bail decision or the failure to extend time to challenge it. Actually, the court observed that Ms Kaur had not raised any in time challenge to the grant of bail in her judicial review claim form. The Upper Tribunal therefore, could not be criticised for declining to extend time.
Furthermore, the argument about historic injustice was also rejected. The court noted that this was a judicial review case focused on the interpretation of the immigration rules. Also they ruled that the concept was irrelevant and even if it had been relevant, no unlawful treatment had been shown.
Finally, the court dismissed the claim that the Secretary of State should consider the possibility of future applications before granting immigration bail. That possibility was not a relevant factor for the decision maker.
Conclusion
The appeal was dismissed on every ground. The judgment confirms the strict operation of the suitability rules. If a person is on immigration bail at the date of application, they cannot meet the requirements of Appendix Skilled Worker. The case also underlines the importance of raising any challenge to a bail decision promptly, within the proper procedural framework.
For more information contact Leena Chouhan on 02074275972 or [email protected]