Court of Appeal Clarifies Discretion in the case of R (Islam) v SSHD [2025] EWCA Civ 458
By Leena Chouhan, Taylor Hampton Solicitors
A recent decision from the Court of Appeal brings useful clarification to Students Switching to Skilled Worker Visas. In R (Islam), the court confirmed the Home Secretary isn’t required to consider discretion when an application doesn’t meet new validity rules.
The story behind the case
The appellant, a student visa holder since January 2023, had hoped to move into the Skilled Worker route. He submitted his application on 20 July 2023, just three days after the rules were changed to prohibit students from switching routes before completing their studies. His Certificate of Sponsorship was dated 16 June. This was well before the change, but timing was not on his side.
By 25 July, his application was deemed invalid and attemps to challenge that decision through judicial review were unsuccessful. While he acknowledged the rule change meant he didn’t meet the requirements, he argued the Home Secretary should have exercised discretion before rejecting the application outright.
The legal argument for Students Switching to Skilled Worker Visas
At the heart of the case was paragraph SW 1.6 of the Immigration Rules, which states:
“An application which does not meet all the validity requirements for a Skilled Worker may be rejected as invalid and not considered.”
The word “may” became the focal point. The appellant’s legal team argued that this implied a duty to at least consider discretion. Nevertheless, the Upper Tribunal and ultimately the Court of Appeal disagreed.
What the courts decided
The Tribunal held the interpretation was “unarguable,” noting that “may” in this context simply allows the Home Secretary to reject the application without any further assessment not that she must weigh the merits before doing so. The High Court judge went further, saying even if discretion were available, refusing to exercise it would not be irrational.
The Court of Appeal granted permission to appeal due to the ambiguity of “may,” but ultimately confirmed the original reading: that the Home Secretary is permitted—not obliged—to reject invalid applications without consideration. The court made clear that interpreting “may” as creating a duty would undermine the purpose of the validity rules and introduce inefficiencies the system is designed to avoid.
Comment on fairness on immigration appeals
Students switching to skilled worker visas should note that despite the appeal being unsuccessful, the court chose not to award costs to the Home Secretary. This was due to the late submission of her legal arguments. These were only accepted on condition that costs would be waived should the appeal fail. It’s a reminder that procedural fairness matters even when the broader legal arguments don’t land.
For more information
This case underscores the importance of timing and compliance in immigration matters. Moreover, it is pertinent where rule changes take immediate effect. For individuals and advisers alike, it’s a sobering example of how rigid the validity framework can be and how limited the scope is for discretion when rules are clear.
For advice on Skilled Worker applications or help navigating immigration changes, Leena Chouhan and team are here to help.