Kaur & Ors, R (on the application of) v Secretary of State for the Home Department [2025] EWCA Civ 1474

[2025] EWCA Civ 1474Case No CA-2024-001768
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Norton-Taylor
Upper Tribunal Judge Meah
JR-2024-LON-001009
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 November 2025
Before
LADY JUSTICE KINGLADY JUSTICE ELISABETH LAINGLORD JUSTICE WARBY
Between
THE KING ON THE APPLICATION OF KAUR & ORSAppellantsSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Zainul Jafferji and Arif Rehman (instructed by Lawfare Solicitors) for AppellantsNicholas Ostrowski (instructed by the Treasury Solicitor) for RespondentHearing Hearing date: 30 October 2025
Approved JudgmentThis judgment was handed down remotely at 10.15 am on 20 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]Ms Kaur applied for leave to remain as a skilled worker (‘application 3’). The Secretary of State refused application 3 in decision 3 on the ground that Ms Kaur was on immigration bail when she made application 3. Ms Kaur applied for judicial review of the decision 3. This is her appeal, with the permission of Nugee LJ, from the refusal of the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’), after a renewal hearing, to give Ms Kaur permission to apply for judicial review of decision 3.[2]On this appeal, Ms Kaur was represented by Mr Jafferji and Mr Rehman. The Secretary of State was represented by Mr Ostrowski. Mr Jafferji and Mr Ostrowski appeared below. I thank counsel for their written and oral submissions.[3]This appeal partly concerns the construction of a provision of the Immigration Rules (HC 395 as amended) (‘the Rules’). There were two issues. 1. What does paragraph SW.2 of Appendix Skilled Worker of the Rules (‘the Appendix’) mean? 2. Is it open to Ms Kaur to rely, in her challenge to decision 3, on an argument that the decision to put her on immigration bail (‘decision 2’) was unlawful?[4]For the reasons given in this judgment I would dismiss this appeal. The meaning of paragraph SW.2 is clear, as the UT rightly held. It is far too late for Ms Kaur to challenge decision 2. Even if it were not too late, decision 2 was not unlawful, as the UT also rightly held.

The facts

[5]Ms Kaur was given leave to enter the United Kingdom as a student with her husband (‘H’) and her child (‘C’) as dependants. That leave was due to expire on 12 May 2022. Three days before her leave expired, on 9 May 2022, she made application 1, for leave to remain on human rights grounds. Ms Kaur’s existing leave to remain was extended by section 3C of the Immigration Act 1971 from 12 May 2022, the day on which it would otherwise have expired, until the Secretary of State decided application 1.[6]The Secretary of State refused application 1 on 28 April 2023, in decision 1. The Secretary of State also certified application 1 as ‘clearly unfounded’, under section 94(3) and 94(1) of the 2002 Act. The effect of the certificate under section 94(1) was that Ms Kaur had no right of appeal against decision 1 (see section 92(3A) of the 2002 Act).[7]At the same time as she refused application 1, the Secretary of State decided to put Ms Kaur on immigration bail. The grant of immigration bail was referred to in decision 1, and was the subject of a separate ‘Notification of the Grant of Immigration Bail’ also dated 28 April 2023, which I will refer to as ‘decision 2’. The reason given for decision 2 was ‘You are liable to be detained because there is a reasonable suspicion that you may be liable to removal from the United Kingdom’. At that stage, the only application which Ms Kaur had made was application 1. She was told that immigration bail would end if one of four events happened. Two of those were if she was detained, or if she was removed from, or left, the United Kingdom.[8]On 12 May 2023, Ms Kaur applied for leave to remain as a Tier 2 Skilled Worker with H and C as her dependants (‘application 2’). The Secretary of State refused application 2 on 16 August 2023 in decision 3. The reason for decision 3 was that Ms Kaur did ‘not meet: Paragraph SW2.2(b) of’ the Appendix. Decision 3 summarised Ms Kaur’s immigration history. The decision-maker was satisfied that Ms Kaur was on immigration bail. Decision 3 continued, ‘In light of this the Secretary of State has deemed that refusal is appropriate under Paragraph, SW2.2(b) of [the Appendix]. As you have not met the suitability requirements of [the Appendix] I have therefore not considered whether you meet the eligibility requirements’. The decision-maker also considered section 55 of the Borders Citizenship and Immigration Act 2009, and factors relevant to article 8.[9]Ms Kaur was told that she could apply for an administrative review of decision 3. Her application for an administrative review (‘application 3’) was not in the bundle of documents for this appeal. The Secretary of State refused application 3 in decision 4, dated 24 November 2023. I infer from decision 4 that one of the grounds for application 3 was that there was no reference in decision 3 to paragraph 39E of the Rules, and that application 2 had been made in time. The Secretary of State said that paragraph SW2.2, which was then quoted, ‘clearly states that’ [followed by the quotation]. The Secretary of State accepted that application 2 ‘was submitted within 14 days of the refusal of an in-time application. It should be noted that, the [sc original] decision-maker has made no reference to overstaying as being a reason for the refusal of’ application 2. The decision-maker had ‘correctly stated’ that application 2 was refused under paragraph 2.2(b) of the Appendix ‘because you were placed on immigration bail on 28 April 2023’. There was no error in decision 3.[10]Ms Kaur then applied for judicial review of decisions 3 and 4. There were four grounds. 1. Decision 3 was ‘inconsistent with the statutory scheme provided under paragraph 39E’ and therefore unlawful. 2. Paragraph SW2.2(b) deprived Ms Kaur of ‘the real benefit of paragraph 39E’ and was unlawful to that extent. 3. The Secretary of State’s decision to grant immigration bail was ‘invalidated for reasons of procedural unfairness and error in law’. 4. Decision 3 was, in any event, ‘a result of a historic injustice as [Ms Kaur] was wrongfully granted immigration bail on 28 April 2023’.[11]The argument on grounds 1 and 2 was, in effect, that paragraph SW2.2(b) is in some way subordinate to paragraph SW2.2(a), with the result that if a person satisfies paragraph 2.2(a), the Secretary of State is obliged to ignore paragraph SW2.2(b), even if it applies on the facts, and to grant the application.[12]Ground 3 was said to be supported by ‘three’ reasons (although four were given). First, the Secretary of State had no power to grant immigration bail to Ms Kaur. That argument was based on a failure to appreciate the relevance of paragraph 1(2) of Schedule 10 to the 2016 Act. Ms Kaur’s second point on ground 3 was that the Secretary of State could not show that she had followed her own guidance in granting immigration bail to Ms Kaur. Her third point on ground 3 was that decision 2 was procedurally unfair because it did not tell her under which provision she had been granted immigration bail. The bail form was invalid because it was no more than a ‘mere tick box exercise’. Ms Kaur should have been told more about why she had been granted immigration bail, and the Secretary of State should have considered the impact of the grant of immigration bail on any future applications which Ms Kaur might make. Her fourth point was that the bail form was wrong in law because it referred to a ‘reasonable suspicion’ that Ms Kaur might be liable to removal from the United Kingdom.[13]The argument on ground 4 was that decision 3 was based on an ‘historic injustice’: that is, the grant of immigration bail in decision 2. Decision 2 deprived Ms Kaur of the opportunity of making a further in-time application for leave to remain as a skilled worker. Ms Kaur referred to Patel (historic injustice; NIAA Part 5A) [2020] UKUT 00351 (IAC) (‘Patel’) at paragraphs 47-8 and 83. The passage quoted makes clear that this principle may be relevant to the proportionality balance in an article 8 case.[14]In a decision sealed on 24 June 2024, the UT refused permission to apply for judicial review on the papers. The UT said that the grounds were ‘unarguable. Contrary to the grounds, the Applicants were given the benefit of paragraph 39E.’ There was no misdirection about paragraph SW2.2(b). The Secretary of State had been ‘unarguably entitled to’ put Ms Kaur and H on immigration bail on 28 April ‘since on that date they were overstayers with no leave to remain in the UK: as such they were liable to removal, detention, and bail’.[15]Ms Kaur renewed her application for permission to apply for judicial review at an oral hearing. The parties were both represented (see paragraph 2, above). The UT refused permission to apply for judicial review. The UT, having heard argument, summarised Ms Kaur’s ‘two core contentions’ in paragraphs (4) and (5) of its reasons.[16]The first was that either paragraph SW2.2(b) is unlawful because it defeats the purpose of paragraph SW2.2(a), or the Secretary of State’s construction was unlawful and words should be read into paragraph SW2.2(b) so as that those who are on immigration bail but have made an application which falls within paragraph 2.2(a) are not caught by paragraph SW2.2(b). The second was that the decision to grant immigration bail was unlawful for various reasons and/or amounted to an ‘historic injustice’.[17]The first contention was ‘unarguable’. An ‘ultra vires argument’ was not open to Ms Kaur in the UT. Nor did Mr Jafferji contend that it was. The words of paragraph SW2.2 were ‘clear according to their natural and ordinary meaning’. An applicant does not meet the suitability requirements if she is on immigration bail. That was a policy decision made by the Secretary of State ‘when bringing in’ the Appendix. There was no basis for reading words into paragraph SW2.2.[18]The decision to grant immigration bail was made on 28 April 2023 and ‘plainly lawfully completed and notified to’ Ms Kaur at the time. She could have applied for judicial review and did not do so. It was ‘far too late to do so now’. The current challenge seemed to be ‘an attempt to target the bail decision through the backdoor, as it were’.[19]In any event, the Secretary of State was ‘unarguably entitled to place [Ms Kaur] on immigration bail at the time’. Her section 3C leave had ended when application 2 was refused and certified. She was then an overstayer and liable to be detained. Paragraph 39E does not stop a person from being an overstayer; it just permits ‘in certain circumstances, a disregard of overstaying’. There was plainly a power to grant immigration bail; indeed, the Secretary of State could have detained Ms Kaur. The policy considerations on which she relied went to whether or not she should have been detained. There was no ‘substance to the suggestion that the only course of action was for the applicant to have been released at large…There was no historic injustice whatsoever’.[20]The Secretary of State immediately put Ms Kaur on immigration bail (under Schedule 10 of the Immigration Act 2016) as an alternative to detention pending removal. Ms Kaur did not challenge the refusal of application 1, or the decision to put her on immigration bail, at any stage. The legal framework Section 3C

The legal framework

[21]Section 3C of the Immigration Act 1971 (‘the 1971 Act’) is headed ‘Continuation of leave pending variation decision’. Section 3C applies if a person applies for a variation of her leave before that leave expires and that leave expires before the Secretary of State decides the application for a variation (section 3C(1)). The effect of section 3C(2) is that leave is extended by section 3C during any period in which the application for a variation has not been decided or an appeal or administrative review could be brought in time, or has been brought and has not been finally determined (section 3C(2)). Section 3C(6) gives the Secretary of State power to make regulations determining when an application is decided for the purposes of section 3C which may make provision, among other things, ‘by reference to receipt of a notice’.[22]Neither side referred us to any such regulations. There are two relevant sets of regulations.[23]The first is the Immigration (Control of Leave) (Notices) Regulations 2006, 2006 SI No 2170. The effect of regulation 2 is that an application for variation of leave is decided for the purposes of section 3C when notice of the decision has been given in accordance with regulations made under section 105 of the 2002 Act or, where no such notice is required, when notice of the decision had been given in accordance with section 4(1) of the 1971 Act.[24]The regulations made under section 105 of the 2002 Act are the Immigration (Notices) Regulations 2003, 2003 SI No 658 (‘the 2003 Regulations’). Regulation 4 of the 2003 regulations requires notice to be given of any decision which is appealable under section 82(1) of the 2002 Act. Such a notice must be accompanied by the reasons for the decision and a statement of the relevant right of appeal (regulation 5(1) and 5(3)). If a power to vary leave to remain is exercised by a notice in writing given under section 4(1) of the 1971 Act, and the notice is accompanied by a statement of the relevant right of appeal, and is served (among other methods) electronically, it is taken to have been given in accordance with regulation 4(1) for the purposes of the 2003 Regulations (regulations 6(1), 6(2) and 7 of the 2003 Regulations).

The legal status of the Immigration Rules (HC 395 as amended)

[25]The Rules are the ‘rules laid down by the Secretary of State as to the practice to be followed in administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode…’ (section 1(4) of the 1971 Act). Section 1(4) of the 1971 Act gives a general indication of the sorts of provisions which the Rules must include. Section 3(2) of the 1971 Act requires the Secretary of State to lay before Parliament statements of the Rules, and of changes to the Rules. If either House of Parliament disapproves such a statement by a resolution of that House, the Secretary of State must, ‘as soon as may be make such changes or further changes as appear to him to be required in the circumstances’ and lay a further statement before Parliament. The Rules are not delegated legislation (Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230). R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208 decides, among other things, that the effect of section 3(2) of the 1971 Act is that any requirement which a person has to satisfy as a condition of being given leave to enter or to remain in the United Kingdom must be stated in the Rules. The Secretary of State cannot rely on a requirement if it is not stated in the Rules but only in a published policy of the Secretary of State.

The construction of the Rules

[26]There was no dispute about the correct approach to the construction of the Rules in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 (‘Mahad’). In paragraph 10 of a speech with which the other members of the Appellate Committee agreed Lord Brown said, ‘The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy’. He added that ‘the court’s task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended…that intention is to be discerned objectively from the words used, not to be divined by reference to supposed policy considerations’ or by reference to any instructions given from time to time by the Secretary of State to officials.[27]The general principles of statutory construction nevertheless do apply to the construction of the Rules. One such principle which applies to the Rules (or at any rate, which applies to the points-based provisions of the Rules) is that ‘The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically’ (see paragraphs 2, 3 and 7 of the judgment of Lord Briggs (with which the other members of Court agreed) in R (Wang v Secretary of State for the Home Department [2023] UKSC 21; [2023] 1 WLR 2125). Lord Briggs added that there was no dispute in that case that the principles described by Lord Brown in Mahad applied to the construction of the Rules (paragraphs 29 and 30). He also said (paragraph 31) that the principles to which he had referred did not suggest that, ‘apart possibly from a relaxation of strictness, the interpretation of the [Rules] involves any significant departure from the general principles of statutory construction’.

The relevant provisions of the Rules

[28]Paragraph 6.2(a) of the Rules provides that in the Rules, ‘unless the contrary intention appears, the following definitions apply’. One of the phrases defined in paragraph 6.2 is ‘in breach of immigration laws’. A person is in breach of immigration laws for the purposes of the Rules if he is an overstayer, an illegal entrant, in breach of a condition of his permission, used deception in relation to his last application for entry clearance or for permission.[29]Paragraph 39E of the Rules is headed ‘Exceptions for Overstayers’. It provides:
‘39E. This paragraph applies where: (1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or (2) the application was made (a) following the refusal or rejection of a previous application for leave which was made in-time; and within 14 days of: (i) the refusal or rejection of the previous application for leave; or (ii) the expiry of any leave extended by section 3C [of the 1971 Act]; or (iii) the expiry of the time-limit for making an in-time application for administrative review or appeal in relation to the previous application (where applicable); or (iv) any such administrative review or appeal being concluded, withdrawn abandoned or lapsing…’
[30]The Appendix is also relevant to this appeal. The introduction to the Appendix says:
‘The skilled worker route is for employers to recruit people to work in the UK, including in UK waters, in a specific job. A Skilled Worker must have a job offer in an eligible skilled occupation from a Home Office approved sponsor’
. Paragraph 1 lists validity requirements. Paragraph 3 lists eligibility requirements, which include points requirements. Paragraph SW17.1 provides that if a decision-maker is satisfied that all the suitability and relevant eligibility requirements are met, the application will be granted. If not, it will be refused. Paragraph SW17.2 gives a person whose application has been refused the right to apply for an administrative review.[31]Paragraph SW2 is headed ‘Suitability Requirements for a Skilled Worker’. It provides:
‘SW2.1. The applicant must not fall for refusal under Part 9: grounds for refusal. SW2.2.

(b) on immigration bail’

.

Removal and detention pending removal

[32]Section 4 of the 1971 Act is headed ‘Administration of control’. Section 4(1) gives immigration officers the power to give or to refuse leave to enter and the Secretary State the power to give, refuse, vary or cancel leave to remain. Unless ‘otherwise allowed by or under this Act’ those powers are to be exercised by the giving of notice in writing to the person concerned.[33]Section 4(2) enacts Schedule 2 to the 1971 Act for the four purposes listed in section 4(2). Paragraph 8 of Schedule 2 is headed ‘Removal of persons refused leave to enter and illegal entrants’. Paragraph 8(1) of Schedule 2 gives an immigration officer power to make directions for the removal from the United Kingdom of a person who has been refused leave to enter, and paragraph 9(1), for the removal of an illegal entrant who has not been given leave to enter. Paragraph 16(2) gives an immigration officer power to detain a person if there are ‘reasonable grounds for suspecting’ that a person is someone in respect of whom directions may be given under various paragraphs of Schedule 2, including paragraphs 8 and 9.[34]Section 10 of the Immigration Act 1999 (‘the 1999 Act’) is headed ‘Removal of persons unlawfully in the United Kingdom’. It provides that a person may be removed from the United Kingdom under the authority of an immigration officer or of the Secretary of State if ‘he requires leave to enter or remain in the United Kingdom and does not have it’.[35]Section 62 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) is headed ‘Detention by the Secretary of State’. Section 61(1) provides that a person may be detained under the authority of the Secretary of State pending a decision to give directions under section 10 of the 1999 Act or under paragraphs 10, 10A or 14 of Schedule 2 to the 1971 Act, and pending his removal from the United Kingdom in pursuance of directions given under any of the provisions listed in section 62(1)(a). Section 62(3) provides that a provision in Schedule 2 to the 1971 Act ‘about a person who is detained or liable to detention under that Schedule shall apply to a person who is detained or liable to detention under’ section 62, in the ways specified in section 62(3).

Immigration bail

[36]The relevant provisions of the Immigration Act 2016 (‘the 2016 Act’) repealed and replaced some provisions of the 1971 Act. The power to grant immigration bail, which the 2016 Act created, replaced three powers conferred by the 1971 Act. Those were the power to grant temporary admission (and in deportation cases, temporary release), and the power to grant bail.[37]Section 61(1) of the 2016 Act enacted Schedule 10 (headed ‘Immigration bail’). Paragraph 1(1) of Schedule 10provides that the Secretary of State may grant a person bail ‘if the person is being detained’ under(a) paragraph 16(1), (1A) or (2) of Schedule 2 to the 1971 Act), under(b) paragraph 2(1), (2) or (3) of Schedule 3 to the 1971 Act, under(c) section 62 of the 2002 Act, or under(d) section 36(1) of the UK Borders Act 2007. Paragraph 1(2) gives the Secretary of State power to grant a person bail if the person is ‘liable to detention’ under a provision mentioned in subparagraph (1). Paragraph 1(3) gives the FTT power, if an application is made to it, to grant bail in the same circumstances as are referred to in paragraph 1(1).[38]Paragraph 1(4) provides that in Schedule 10, references to the ‘grant of immigration bail’, in relation to a person, are to the grant of bail to that person under any of sub-paragraphs (1) to (3) of paragraph 1 of Schedule 10 (or under paragraph 10(12) or (13) (release following arrest for breach of bail conditions)).[39]Paragraph 1(5) provides ‘A person may be granted and remain on immigration bail even if the person can no longer be detained, if-(a) the person is liable to detention under a provision mentioned in sub-paragraph (1), or(b) the Secretary of State is considering whether to make a deportation order against the person under section 5(1) of the Immigration Act 1971’.[40]In R (Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875; [2022] QB 695 this court, dismissing the appellant’s appeal, held that ‘liable to detention’ means ‘liable in principle to detention’. It does not mean that a person cannot be detained unless his detention would also be lawful in accordance, for example, with the principles in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704. The Secretary of State can therefore grant immigration bail to a person who could not lawfully be detained under those principles (for example, because, were he detained, he could not be removed within a reasonable period after that detention).

The grounds of appeal

[41]There are five grounds of appeal. 1. The UT misinterpreted paragraph SW2. 2. The UT erred in not considering whether decision 2 was lawful. 3. The UT erred in not considering whether Ms Kaur was the subject of an ‘historic injustice’. 4. The UT erred in not considering whether decision 3 was flawed by a failure to take relevant considerations into account. 5. The UT erred in failing to give Ms Kaur an extension of time to challenge decision 2. The submissions Ms Kaur’s submissions on the construction of paragraph SW2.2

The submissions

[42]Ms Kaur emphasises two Explanatory Memoranda. The first introduced paragraph 39E.The second introduced an amendment to paragraph 39E. She deduces from these that the Secretary of State has a blanket policy of forgiving short periods of overstaying (of up to 14 days) and of encouraging the making of further applications within that period. Everyone to whom paragraph 39E applies, it is argued, is entitled to have an application for further leave considered on its merits. Any provision which seems to contradict that policy must, in effect, be ignored.[43]The core of Ms Kaur’s argument on the construction of the Appendix is summed up in three propositions. The first is in paragraph 12 of her counsel’s supplementary skeleton argument. The bald submission is that paragraph ‘39E operates so as to grant all those that come within it the possibility of succeeding in an application under’ the Rules. The second is that while the Rules ‘make provision to the effect that those on Immigration Bail cannot meet the requirements of various categories of permission to stay’, there is ‘no documented policy reason for these provisions, or any policy statement that justifies the assertion that the fact of a person being on Immigration Bail is the key consideration in such cases’ (ibid, paragraph 13). The third is Ms Kaur’s contention that a literal reading of paragraph 2.2 leads to an ‘anomalous result’: a person ‘who is expressly permitted to apply by paragraph 39E is nevertheless refused for the very same reason (overstaying) that paragraph 39E is expressly designed to deal with’ (ibid, paragraph 14). The conclusion, so says Ms Kaur, is that paragraph 2.2(b) ‘must be interpreted’ as only applying ‘where a period of overstaying is not being disregarded pursuant to’ paragraph 2.2(a).[44]In support of that argument, Ms Kaur suggests that a literal interpretation of paragraph SW2.2(b) leads to other anomalies. The suggestion is that the upshot of that interpretation is that different categories of overstayers are treated differently. Those are listed in paragraph 21 of the supplementary skeleton argument. Ms Kaur acknowledges that part of the reason for this different treatment is that the Secretary of State will be aware of and in contact with, some categories of overstayer, such as Ms Kaur, and therefore in a good position to put them on immigration bail when refusing an application for leave to remain when such a refusal will make the applicant an overstayer. Ms Kaur complains that the Secretary of State has not ‘set out a principled, rules-based approach to this issue’. There is said to be no guidance about ‘what should be done where a person lawfully present in the UK has just become an overstayer, but no decision to enforce removal has been taken’. It is said to be perverse to reward people who make an in-time application by putting them on immigration bail if that application is refused.

Ms Kaur’s submissions on decision 1

[45]Ms Kaur acknowledges that the Secretary of State was exercising the power conferred by paragraph 1(2) of Schedule 2. Ms Kaur relies heavily on a statement in the Secretary of State’s guidance about immigration bail that ‘the purpose of immigration bail is aligned to the purpose of detention, which is to facilitate the return of individuals who have no legal basis to remain in the UK’.[46]The main submission in Ms Kaur’s supplementary skeleton argument is that her leave to remain expired on 28 April 2023 when she was served with decision 3. The first day, so the argument runs, on which she required leave to remain and did not have it was 29 April, and it was only then that she became liable to removal. The upshot, it is said, is that the Secretary of State did not have power to put her on immigration bail until 29 April 2023. Moreover, when the Secretary of State put her on immigration bail, she had not considered whether or not to remove Ms Kaur, a decision which was hedged around with detailed policies and guidance. It is further suggested (presumably in reliance on paragraph 39E) that the Secretary of State’s ‘overarching immigration policy’ was to give people in Ms Kaur’s position a ‘grace period of 14 days within which she could make a further application for permission to stay…’ It could not be right that the Secretary of State is not, when deciding whether or not to put a person on immigration bail, required to consider whether or not that person might make a further application for permission to stay.[47]In her initial skeleton argument, Ms Kaur said that the UT erred in not ‘giving sufficient consideration’ to her suggestion that she was a ‘victim’ of an ‘historic injustice’. Ms Kaur, it is claimed, still had section 3C leave on 28 April 2023, and should not have been treated as an overstayer on that date. She quotes paragraph 47 of Patel which says that ‘erroneous’ past treatment of a person ‘can have a bearing on Article 8 proportionality in an ensuing human rights appeal’. She suggests that when the Secretary of State exercises a discretion, such as the discretion to give indefinite leave to remain (‘ILR’), she should take into account past failures to apply a relevant policy, relying on (I think, an obiter statement in paragraph 48 of) R (S) v Secretary of State for the Home Department [2009] EWCA Civ 142. That statement recognises that the Secretary of State may nevertheless refuse ILR. She argues that the Secretary of State’s ‘historic error’ in putting her on immigration bail ‘unlawfully deprived’ her of an opportunity to make a further lawful application, and of the procedural safeguard of paragraph 39E.[48]Ms Kaur also argued that the UT’s conclusion that her challenge to decision 2 was ‘far too late’ was ‘plainly erroneous’. The claim is said to be arguable and to ‘raise significant issues warranting judicial consideration’. It is said to be contrary to the rule of law, when a decision (‘D2’) is based on an earlier decision (‘D1’) to prevent an applicant from challenging D1 if D1 is unlawful. To do otherwise would be to contradict the doctrine of ‘historic injustice’.

Discussion

[49]There is a tension between Ms Kaur’s challenge to decision 3 and her belated attempt to challenge decision 2. The premise of the challenge to decision 3 is that paragraph SW2.2 does not mean what it says. On the other hand, the premise of the attack on decision 2 is that paragraph SW2.2 does mean what it says. The meaning of paragraph SW2.2. is, therefore, relevant to each decision which is challenged, and I will begin with that.

Ground 1

[50]The starting point for working out the meaning of paragraph SW2.2 is the words of paragraph 2.2. The starting point is not a search for a purpose which floats free from those words. A related point is that it is clear from authorities at the highest level that the Rules are, themselves, statements of the Secretary of State’s policy. There is no need to search outside the Rules for independent statements of the Secretary of State’s policy in order to support any particular interpretation of the Rules. The words used by the Secretary of State in the Rules are themselves that statement, because the Rules are statements of the Secretary of State’s policy. I therefore reject Mr Jafferji’s repeated suggestion that the absence of statements in the Secretary of State’s various published policies to explain or support the UT’s interpretation of paragraph SW2.2 undermines that interpretation in any way.[51]Paragraphs SW2.1 and SW.2.2 create three bars to a successful application under the Appendix. Two of the bars are unqualified. The third is subject to an exception. The first unqualified bar is that the application must not fall for refusal under Part 9 of the Rules, which creates general grounds for refusal. The second bar is that applicant must not be ‘in breach of the immigration laws’. That bar is subject to an exception, which is that where paragraph 39E applies, ‘that period of overstaying will be disregarded’. The third is that the applicant must not be on immigration bail.[52]The first bar is in its separate paragraph (SW2.1). The second and third bars are in paragraph SW2.2 They are separated by the word ‘or’. There are no words in paragraph SW2 which displace the impression that if any of the three bars applies, the application will fail.[53]Nor are there any words in paragraph SW2 which support the view that the exception to the second bar expresses the overriding purpose of paragraph SW2. If that had been the Secretary of State’s intention, subparagraphs (2)(a) and (b) would not have been separated by the word ‘or’. For paragraph SW2.2 to mean what Ms Kaur contends that it means, its structure and language would have to be different. The Secretary of State could have provided for different relationship between(1) the circumstances in which paragraph 39E applies and excuses, so as to mitigate the effect of paragraph SW2.2(a), a short period of overstaying, and(2) the circumstances in which a person is on immigration bail. For example, the Secretary of State could have inserted ‘unless paragraph 39E applies’ at the end of paragraph SW2.2(b). The Secretary of State did not do that.[54]Paragraph 39E is a procedural provision. It does no more than to describe when it applies. It has no independent effect. In order for it have an effect, it has to have an anchor in a different, substantive, paragraph of the Rules. The first point about paragraph 39E is that it cannot, therefore, be the source of an overriding policy in the Rules. The second point, which flows from the first, is that it is for the Secretary of State to decide in what contexts in the Rules she wishes to use this procedural provision, and precisely how she wishes to use it.[55]The Secretary of State has used this procedural provision in paragraph SW2. It is necessary to understand, however, precisely how she has used it. Paragraph SW2.2 creates two bars to an application, as I have said. The first is that the applicant must not be in breach of immigration laws. The Secretary of State has mitigated or qualified the rigour of that first bar by making it the subject of an exception. That exception is that, where paragraph 39E applies, but not otherwise, a breach of immigration laws which consists of a short period of overstaying, as described in paragraph 39E, will be disregarded. It is important to understand that the disregard is provided for by paragraph SW2.2(a), and not by paragraph 39E itself. But there is nothing in the words of paragraph SW2 which shows that the Secretary of State intended that, where the exception created by paragraph SW2.2(a) applies, paragraph SW2.2(b) must be ignored. On the contrary, the clear effect of the word ‘or’ is that, even if that exception applies, being on immigration bail is a bar to an application under the Appendix.[56]The thrust of Mr Jafferji’s written and oral submissions was that when paragraph SW.2.2(a) and (b) both apply, paragraph SW2.2(b) deprives an applicant of the benefit of paragraph SW.2.2(a). His argument was that in every such case, paragraph SW2.2(a) cannot be given effect unless it excludes paragraph SW2.2(b), and it must therefore exclude paragraph SW.2.2(b). He accepted that paragraph SW.2.2 is not ambiguous, but did not accept that lack of ambiguity is a bar to a ‘purposive’ construction, as paragraph SW2.2 should be construed in the context of the Rules as a whole.[57]I reject that submission. It is contradicted by the clear words of paragraph SW2.2, which are the only relevant source from which the purpose of those provisions can be deduced. When both sub-paragraphs apply on the facts, either can be a bar to the success of an application. That is what the word ‘or’ means. It follows that if, on the facts, the disregard in paragraph SW2.2(a) is engaged, that is not decisive for the application, because if paragraph SW2.2(b) also applies, the application must fail. Moreover this construction does not ‘nullify’ the disregard in paragraph SW2.2(a). An applicant who is not on immigration bail will always benefit from it. The purpose of paragraph SW2.2 is clear. It is that, if the Secretary of State has made an otherwise lawful decision to put an applicant on immigration bail, and that person applies for further leave to remain under the Appendix, she should not benefit from the disregard in paragraph SW2.2(a).[58]I note in passing that there is, in any event, a question whether, on the facts, Ms Kaur should have benefitted from this disregard. Decision 4 assumes that application 3 was made in time to attract the operation of paragraph 39E, but it might well have been a day too late. As the Secretary of State has not at any stage taken this point against Ms Kaur, it would be wrong to do that now.[59]I would therefore uphold the UT’s approach to the construction of paragraph SW2. That disposes of Ms Kaur’s first ground of appeal.

Grounds 2 and 5

[60]Mr Jafferji made no oral submissions in support of grounds 2 and 5. I consider them nevertheless. Ms Kaur could have challenged decision 1 or decision 2 by applying for judicial review in the UT. Any such application would have had to have been made ‘promptly’, and, in any event, within three months of the date of decision which was challenged. Ms Kaur did not at any stage apply for judicial review of either decision 1 or decision 2. Having failed to do that, she cannot now contend that application 1 was a meritorious application. Nor can she now contend that decision 2 was unlawful. If a decision is not challenged in a timely way, it is presumed to have been a lawful decision. Any different approach would completely undermine the principle that legal challenges to decisions by public bodies must be made promptly. In that situation, the UT cannot be criticised for not embarking on an analysis of the lawfulness of decision 2.[61]The UT has power to extend the time for making an application for judicial review. But it has no power to do that unless the claimant explains any delay, and the UT considers that that explanation is good enough to justify an extension of time. Ms Kaur did not challenge decision 2 in her claim form, made no attempt to explain why she had not challenged decision 2 in time, and did not ask in her claim form for an extension of time for making such a challenge. In that situation the UT had no power to extend the time for making such a challenge. Given that it was not even asked to do that, it cannot be criticised for not extending the time for challenging decision 2.[62]That disposes of grounds 2 and 5.

Ground 3

[63]Ms Kaur relied on Patel in counsel’s written submissions. As Mr Ostrowski pointed out, the UT distinguished, in the headnote of Patel, between what it called, in the immigration context, an ‘historic injustice’ and an ‘historical injustice’. An ‘historic injustice’ refers to cases in which the government has belatedly acknowledged that a particular group of people have been badly treated. That is not Ms Kaur’s case. An ‘historical injustice’ refers to a case in which one person complains that he has suffered as a result of ‘the wrongful operation (or non-operation) by the Secretary of State of her immigration functions’. The UT gave three examples of such cases. The closest to Ms Kaur’s argument in this case is ‘where the Secretary of State forms a view about an individual’s activities or behaviour, which leads to an adverse immigration decision’ which later turns out to be wrong. The UT referred to Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009; [2018] Imm AR 531, a case about the relationship between applications for judicial review and in-country appeals when an allegation was made that a person had cheated in a TOEIC test (a test of proficiency in the English language). In such a case, an historical injustice, where shown, may be relevant to the weight to be given, in an article 8 proportionality balance, to the importance of immigration control, and the weight to be given to that in a case in which Part 5A of the 2002 Act applies.[64]This is not an appeal from a decision of the UT in a statutory human rights appeal. It is an appeal from a decision of the UT to refuse permission to apply for judicial review. It turns, primarily, on the interpretation of the Rules, and, possibly, on the nature of the Secretary of State’s power to grant immigration bail. It has nothing to do with article 8, or with any proportionality balance. Nor, in case that is material, is it a challenge to the exercise by the Secretary of State of any discretion. The concept of ‘historical injustice’ as explained by the UT in Patel is therefore irrelevant; nor as I have explained, is the concept of ‘historic injustice’.[65]In case I am wrong about that, I should nevertheless consider whether Ms Kaur has suffered as a result of the ‘wrongful operation’ by the Secretary of State of her immigration functions. When the Secretary of State made decision 1, Ms Kaur’s leave to remain, which would otherwise have expired on 12 May 2022, had been extended by section 3C, because she had made application 1 before that leave to remain expired. The effect of the regulations to which I have referred in paragraph 24, above, is that the electronic notification of decision 1 on 28 April 2023 immediately brought to an end her leave to remain, as extended by section 3C. I reject her belated submission that she continued to have leave to remain for the whole of that day, and only became an overstayer on 29 April 2023. She did not rely on this argument in her grounds for judicial review in the UT. From the moment at which decision 1 was served by email on 28 April 2023, Ms Kaur did not have permission to stay in the United Kingdom and was an overstayer. As soon as she became an overstayer, she was liable to be removed, and therefore, liable also to be detained pending removal (see paragraphs 32-35, above). As soon as she was liable to be detained, it was open to the Secretary of State to grant her immigration bail (decision 2) (see paragraphs 16-20, above).[66]I reject Mr Jafferji’s suggestions that decision 2 was unlawful because, on 28 April 2023, the Secretary of State would have had to jump through various policy hoops before she could have detained or removed Ms Kaur. That submission confuses liability to detention and removal (as explained in Kaitey) with the question whether Ms Kaur could lawfully have been detained or removed on 28 April 2023. I can see no error of law, therefore, in decision 2. That means that, even if, contrary to my clear view, the concept of historic injustice was potentially relevant in this case, Ms Kaur has not shown that she has suffered any unlawful treatment or other injustice.[67]That disposes of ground 3.[68]Ground 4 is simply repeated in paragraph 45 of Ms Kaur’s initial skeleton argument but not developed further. In case it includes the argument advanced in paragraph 37 of Ms Kaur’s supplementary skeleton argument, and emphasised in Mr Jafferji’s oral submissions, I should consider that argument. It is suggested there that before granting immigration bail, the Secretary of State is required to consider the possibility that a person might make a further application for leave in the period potentially permitted by paragraph 39E. King LJ pointed out to Mr Jafferji that the Secretary of State cannot know, when she refuses an application, whether or not the applicant will make a further application within the period permitted by paragraph 39E. He was then driven to submit that the Secretary of State cannot lawfully put a person in the same position as Ms Kaur on immigration bail until 14 days after she has refused an application for leave to remain. That extreme submission, if right, would severely limit the effectiveness of immigration bail. It would also unreasonably fetter the wide power given to the Secretary of State to grant immigration bail. Those two factors show that the possibility of a future application is not a consideration which is even arguably material to a decision whether or not to grant immigration bail. I would dismiss ground 4.

Conclusion

[69]For those reasons, I would dismiss this appeal.[70]I agree.[71]I also agree.