Recently, we have noted a trend of applicants finding it difficult to switch to immigration categories such as Skilled Worker and Graduate route because they have been placed on immigration bail immediately after or alongside a negative decision on their immigration application.
This is a problem for many, especially students and those with real job prospects. Appendix Skilled Worker and Appendix Graduate both require that an applicant must not be on immigration bail for suitability requirements to be met. However, at the same time, both allow applicants to rely on Exceptions for Overstayers contained in Part Suitability (previously Paragraph 39E of the Immigration Rules).
With the Home Office placing many on immigration bail immediately on refusing an application, applicants are unable to benefit from the Exceptions for Overstayers, which permit an application to be made generally within 14 days of certain circumstances. This means, a person may be able to rely on the Exceptions for Overstayers but fall short of the immigration bail requirement. Then how do the two reconcile? The Court of Appeal in the case of R (Kaur & Ors) v Secretary of State for the Home Department [2025] EWCA Civ 1474 has ruled that they do not. Exceptions for Overstayers and the requirement not to be on immigration bail are both standalone requirements.
In Kaur & Ors, the matter started off in the Upper Tribunal with a judicial review application pleading four grounds:
- The decision to refuse Ms Kaur permission as a Skilled Worker on the basis that she was placed on immigration bail was inconsistent with the statutory scheme under paragraph 39E and was therefore unlawful.
- Paragraph SW2.2(b) of Appendix Skilled Worker which makes it a suitability requirement not to be on immigration bail, deprived Ms Kaur of the real benefit of paragraph 39E and hence, is unlawful to this extent.
- The decision to grant immigration bail was invalid due to procedural unfairness and error in law.
- Ms Kaur being placed on bail was incorrect and historically unjust.
The application for judicial review was refused both on papers and orally. The application for permission to appeal to the Court of Appeal pleaded five grounds. The first of which was that the Upper Tribunal misinterpreted paragraph SW2.2(b) of Appendix Skilled Worker. To this effect, the Court of Appeal made important findings which clarify matters including the relationship between Exception for Overstayers and the suitability requirement not to be on immigration bail:
- Paragraph 39E had no independent effect.
- The clear effect of paragraph SW2.2(b) is that being on immigration bail is a bar to an application under Appendix Skilled Worker.
Similarly, with respect to the fourth ground, which pleaded that before granting immigration bail, the SSHD is required to consider the possibility of an application being made in accordance with Paragraph 39E, the Court of Appeal held:
- The possibility of a future application is not a material consideration to a decision of whether or not to grant immigration bail.
Those who find themselves in a position where being on immigration bail prevents them from making an application under Appendix Skilled Worker or Graduate, will find this judgement key. Our immigration experts can help you understand your options in this scenario.
