“… they give effect to the policy of the Secretary of State, who has been entrusted by Parliament with responsibility for immigration control and is accountable to Parliament for her discharge of her responsibilities in this vital area. Furthermore, they are laid before Parliament, may be the subject of debate, and can be disapproved under the negative resolution procedure. They are therefore made in the exercise of powers which have been democratically conferred, and are subject, albeit to a limited extent, to democratic procedures of accountability.”
“ST 3.1. A person seeking to come to the UK as a Student must apply for and obtain entry clearance as a Student before they arrive in the UK. ST 3.2. A person applying for entry clearance as a Student must, if Appendix Tuberculosis applies, provide a valid medical certificate confirming that they have undergone screening for active pulmonary tuberculosis and that this tuberculosis is not present in them.”
“5.1 The number of asylum claims from people who arrived in the UK on a visa or other leave have nearly tripled since the year ending September 2022. In the year ending September 2025, 38% (41,100) of asylum seekers had previously entered the UK on a visa or other leave with relevant documentation. … 5.2 As set out in the Asylum Policy Statement, around 106,000 asylum seekers are currently receiving state-funded support, with the vast majority living in asylum accommodation. Nationals of Afghanistan, Cameroon, Myanmar and Sudan present some of the highest proportions of asylum claims to visas issued, and the number of claims is consistently high, leading to significant impacts on the asylum system. In total, as of September 2025, 15,906 of these nationals are in receipt of Home Office support, including 6,412 individuals in hotels. … 5.3 For these nationalities, the highest proportion and number of claims come from the Student visa route. For Afghanistan a high proportion and number of claims also come from the Skilled Worker route. In order to protect UK border security from these unsustainable levels of visa-linked asylum claims, we will refuse Student visa applications from main applicants who are nationals of Afghanistan, Cameroon, Myanmar, and Sudan. Additionally, we will refuse Skilled Worker visa applications from main applicants who are nationals of Afghanistan. This will come into effect from 26 March but will not affect applications made before 26 March. 5.4 The key aim of the change will be to reduce the number of individuals entering the asylum system, therefore reducing the strain on the asylum system. It will also allow time for the Home Office to understand the underlying issues/trends driving these behaviours, and what further nuanced interventions could be put in place in the longer term to address these. It will also meet the stated intents of the Immigration White Paper and the Asylum Policy Statement to drive down asylum and support, particularly where it is preventable, and to strengthen public confidence in the immigration system. This confidence risks being undermined where purpose-bound visa routes (like Study) are, or are perceived to be, used as a route to claim asylum in the UK. The brake is not intended to be permanent and will be regularly reviewed, with the aim that it can be released as soon as it is considered appropriate to do so.” (Emphasis added; footnotes omitted.)
“Tackling the growing strain that the UK’s asylum system is under has been a major and pressing policy imperative of the Government and the Home Secretary.”
“94. In recent years, we have seen an increase in students staying in the UK following their studies. Alongside this, we have also seen an increase in sponsored study visas for lower-ranking education institutions. 95. We have also seen a series of problems involving misuse and exploitation of student visas, where visas are used as an entry point for living and working in the UK without any intention to complete the course, and increasing numbers of asylum claims from students at the end of their course, even though nothing substantive has changed in their home country while they have been in the UK.” (Emphasis added; footnotes omitted.)
“46. Policy development in August to September 2025 explored several models: a simple nationality-wide restriction, more targeted, cohort-based approaches, and different operational mechanisms (for example, sponsor controls versus application-stage restrictions). The blanket ‘brake’ model offered speed and simplicity but raised proportionality and litigation risks, whereas more targeted approaches (i.e. interventions based on courses and occupation codes) better aligned with evidence but were operationally complex and susceptible to circumvention.”
“We are still refining the underpinning ‘trigger’ for consideration of a suspension. … Provisionally, we are looking at a trigger based on the percentage of visa-linked claims relative to visas issued, by route, in 2024 of 20% or over (excluding those with <50 claims), or a total number of claims of over 500 in any specific route. This methodology would suggest: Work (%) Afghanistan, Cameroon, Bangladesh, Myanmar, Syria Work (absolute volume) Bangladesh, Pakistan, Sri Lanka, Nigeria, India, Cameroon Study (%) Afghanistan, Syria, Cameroon, Sudan, Iran, Bangladesh Study (absolute volume) Pakistan, Bangladesh, India, Nigeria, Iran, Sri Lanka, Nepal, Afghanistan In the round, our provisional assessment is the most credible options initially are Afghanistan (Study and Work), Syria (Study and Work), Cameroon (Study and Work), Sudan (Study), Iran (Study) and Myanmar (Work). Bangladesh is also a possibility. Pakistan is harder to make a case for, but not impossible. India is very challenging in that the ratio for Indian Work and Study visa holders is 1% and 3%. We are also working to see if we can refine this trigger further by targeting specific university courses and/or occupation codes, to make the intervention more surgical and potentially make the stakeholder and diplomatic handling easier.”
“We also considered a volume threshold of at least 500 asylum claims per year (the ‘Volume Threshold’) was an appropriate threshold for the Visa Brake, but one which should not be applied until later phases, ideally when we were able to target specific university courses or provide a more nuanced approach.”
“The Mismatched Conversion Rate simply divides the number of asylum claims linked to the relevant visa in, eg 2024, to [sic] the number of Entry Clearance visas issued in 2024. This is to give an indication of the number of visa issuances that go on to claim Asylum, rather than calculate it exactly, as in most cases these are not the same people being compared.”
“Currently, despite the low numbers of Chevening scholars from these nationalities, we are nevertheless seeing asylum claims emanate from this route as shown in the table below (Jan ’23-Dec ’24). The top five countries with the highest proportion of visa-linked asylum claims on a Chevening scholarship are Yemen, Afghanistan, Sudan, Syria and Iran, three of which are proposed for stage one of the emergency brake. Asylum claims on Chevening scholarships contravene the understanding that a Chevening scholar will study in the UK and then return to their country or region as a future leader, and also leaves HMG vulnerable to criticism that, through funding these scholarships, it is incentivising individuals from high asylum risk nationalities to claim asylum in the UK. Additionally, it may be difficult to justify providing an exception to emergency brakes for Chevening scholars, but not for other government sponsored scholarship programmes, such as the Commonwealth scholarship. Nationality Chevening scholarship applications Asylum matches Harm % Afghanistan 35 27 77% Cameroon 33 1 3% Iran 8 2 25% Myanmar 20 2 10% Sudan 33 20 61% Syria 38 16 42%”
“Note: Conversion rates may be higher than 100% because the mismatched methodology matches claims not only to visas issued that year but also to visas issued in previous years.”
“76. First, the court’s approach to assessing the rationality of a decision varies depending on the importance of the interests affected by it or, to put the point another way, the gravity of its potential consequences. In this connection, it is not necessary to identify a ‘right’ impacted by the challenged decision. … The interests in question may be such as to ground a right properly so-called (as in ex p. Smith and Pham), but not necessarily. In many of the situations in which the heightened standard of review applies, the claimant will have no prior right, whether under statute or at common law, to the benefit which the decision denies him. 77. Second, where it applies, the heightened standard of review has implications for the way the court evaluates complaints of both process and outcome irrationality. In the former case, the court will subject the decision to ‘more rigorous examination, to ensure that it is in no way flawed’ (Bugdaycay, 531). In this connection, the court will expect the decision-maker ‘to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account’ (Y (Iraq), [24]). Where the complaint is of outcome irrationality, more will be required by way of justification (ex p. Smith, 554); and the importance of the interests affected may, in principle, narrow the range of decisions open to the decision-maker, potentially to just one (Pham, [107]). 78. Third, however, the importance of the claimant’s interests is not the only factor relevant to the court’s approach to a complaint of outcome irrationality. The nature and importance of the public interests on the other side of the balance may also be important. In some fields, institutional considerations may require the court to recognise that it is less well-placed than a democratically accountable decision-maker to evaluate the impact that a particular decision may have on a particular public interest, or the weight to be accorded to that impact. Equally, constitutional considerations may dictate that the court should pay particular respect to the views of a democratically accountable decision-maker about how to balance the public and private interests. In such cases, even where a decision will have grave consequences for the individual, the court may have to afford the decision-maker a wide margin when considering whether the outcome is irrational: Hoareau, [155].”
“There are two ways to calculate proportion. The first way is to identify how many of those issued a student visa in a particular time period have gone on to make an asylum claim. This is what we refer to as matched data. The second way is to adopt the approach that we applied, which is to compare the number of asylum claims made in a given year by a given cohort and contrast that as a proportion of the number of student visas issued to that cohort in that year. This is what we call the Mismatched Conversion Rate. We call it ‘mismatched’ because we recognise that the identity of the individuals claiming asylum does not always align with those to whom visas are issued in the same time period.”
“First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge …, it is for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken… Thirdly, the court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further inquiries if no reasonable authority possessed of that material could suppose that the inquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.”
“A public authority which has a discretionary power may adopt a policy or rule to regulate the exercise of the power and indeed, if it fails to act consistently with its rule or policy, its decision may be open to public law challenge by a person adversely affected. At the same time the principle against fettering discretion requires decision-makers not to shut their ears to claims falling outside the policies they have adopted: see Ali …, para 15. The leading authority is British Oxygen Co Ltd v Minister of Technology[1971] AC 610 . … Lord Reid identified the general rule as being that “anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’” and “refuse to listen at all” but must be “always willing to listen to anyone with something new to say”.”
“The language of these provisions, especially section 3(1)(b), could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorise the Secretary of State to grant leave to enter or remain even when leave would not be given under the Immigration Rules.”
“Under the non-fettering principle, there can be no factors that the Secretary of State can close her ears to. That principle requires that she must at least be willing to consider whatever it is that an applicant wishes to say to her.”
“The Home Secretary’s decision to amend Appendix Student of the Immigration Rules to preclude all nationals of Afghanistan, Sudan, Myanmar, and Cameroon from applying for entry clearance as a Student, implemented by way of the Statement of Changes to the Immigration Rules HC 1691.”
“A declaration that the Defendant’s relevant guidance is unlawful, insofar as it mandates that applications made under Appendix Student by individuals affected by the Decision be refused.”
“The principle against fettering discretion requires a decision-maker to be willing to listen to and consider arguments for not acting in accordance with a rule or other established policy. But it does not require the decision-maker to cast around for possible reasons to do so. That is clear from the nature of the principle which, as the British Oxygen case shows, is a requirement founded in procedural fairness that the decision-maker must not ‘shut his ears’ to an application or refuse to ‘listen to anyone with something new to say’. It is also confirmed by R (Behary and Ullah) v Secretary of State for the Home Department[2016] EWCA Civ 702 , para 39, where the Court of Appeal held there was no obligation on the Home Office to consider whether to grant leave to remain outside the Immigration Rules in the absence of an express request to do so or, possibly, of facts which were so striking that it would be irrational not to consider the grant of leave outside the Rules even in the absence of any request.”
“This guidance tells caseworkers how to consider applications from people who wish to enter or remain in the UK to study under the Student or Child Student routes of the Points-based system.” (Emphasis added.)
“This page tells caseworkers the requirements an applicant must meet to be granted either entry clearance or permission to stay as a Student or Child Student. The requirements for granting entry clearance or permission to stay can be found in: • the eligibility requirements for the Student route, contained in Appendix Student ST 3.1 to 23.1 • … Student: Visa Brake Afghanistan, Cameroon, Myanmar and Sudan will be subject to a visa brake with effect from26 March 2026 . You must refuse any out-of-country Student entry clearance applications submitted on or after this date where the main applicant is a national or citizen of one of these countries, in accordance with paragraph ST 3.3. You should assess an applicant’s suitability in full, but no further consideration of the applicant’s wider eligibility should be undertaken. The visa brake only affects out-of-country applications where the main applicant has made their application using a passport or travel document which confirms that they are a national of one of the affected countries. Any application made by dual nationals in a different nationality should be considered as normal in line with that nationality.” (Emphasis added.)
“(iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position. In a case of the type described by Rose LJ, where a Secretary of State issues guidance to his or her own staff explaining the legal framework in which they perform their functions, the context is likely to be such as to bring it within category (iii). The audience for the policy would be expected to take direction about the performance of their functions on behalf of their department from the Secretary of State at the head of the department, rather than seeking independent advice of their own. So, read objectively, and depending on the content and form of the policy, it may more readily be interpreted as a comprehensive statement of the legal position and its lawfulness will be assessed on that basis.”
“This guidance tells you about the [sic] when it may be appropriate to exercise discretion to grant leave outside the Immigration Rules (LOTR) on the basis of compelling compassionate grounds (other than family and private life, medical, asylum or protection grounds). … The circumstances in which someone may be granted LOTR are covered either by this guidance, or separate guidance relating to European Convention on Human Rights (ECHR) Article 3 medical, Discretionary Leave, or where there is an existing published concession. Applications relating to LOTR on Article 8 family and private life grounds must instead refer to the 5-year or 10-year partner, parent and private life guidance. Applications relating to Article 3 medical grounds must instead refer to the discretionary leave guidance.” (Emphasis added.)
“The Immigration Rules are designed to provide for the vast majority of those wishing to enter or remain in the UK however, the Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under theImmigration Act 1971 . … Not all LOTR is granted for the same reason and discretion is applied in different ways depending on the circumstances of the claim and the applicant’s circumstances. This guidance helps decision-makers specifically with considering LOTR on compelling compassionate grounds. LOTR on compelling compassionate grounds may be granted where the decision maker decides that there are specific circumstances which mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach ofECHR Article 8 or Article 3 medical and do not otherwise undermine other discretionary leave policies or bespoke LOTR policies.” (Emphasis added.)
“For permission to be granted on compelling compassionate grounds, unjustifiably harsh consequences for the applicant or their family must be identified. This could mean that the applicant or their family would face exceptional hardship if refused. Or it could be that the circumstances that prevent them from meeting the rules are exceptional, out of their control and it would be unreasonable to refuse, so discretion may be required. The consequences for the individual should also be determined to be exceptional and considerably worse than most others in similar circumstances who do not meet the rules to justify a grant of LOTR.”
“Visa applications put in after 24 March The Ministerial Submission anticipated that the Statement of Changes would be laid on 3 March and come into force on 24 March. In the event, those steps each took place two days later. will be refused. There will not be an exception within the immigration rules on compelling and compassionate grounds given we do not anticipate there being many (if any) such applications for work and study routes. Caseworkers will continue to be able to exercise ‘leave outside the rules’ discretion.” (Emphasis added.)
“Illegitimate applications. The planned mechanism for ‘blocking’ visas is an automatic refusal should applicants from the in-scope nationalities and routes still apply. In this case, some labour cost would still be required to refuse the application, however the visa fee would be retained. This analysis assumes that none of these applications would be submitted. This means that the figure for lost fee revenue may be an underestimate.”
“Once in place, applications from the specified nationalities on the affected routes will be refused. … People should not apply under affected routes once the visa brake takes effect. Applications submitted online on or after 26 March will be refused and the application fee will not be refunded.”
“While people who are nationals of the specified countries will still be able to make applications, these applications will be refused, and their visa application fees will not be refunded.”
“Any applications for Entry Clearance on the Student route made whilst the brake is in place, where the main applicant is a national or citizen of one of these countries, will be refused. You should not issue any CAS to nationals or citizens of these countries whilst the brake is in place.”
“This application requires a valid Confirmation of Acceptance for Studies (CAS) number. If you do not provide one, your application is likely to be refused.”
“I find it difficult to see why or how Parliament could have expected public authorities to take these steps in relation to people outside the United Kingdom in a place where the authority is unlikely to have any real sphere of operation, or in a place or country where different views may be taken on questions of equality and non-discrimination as reflected in local laws, customs and traditions. Certain characteristics that are protected characteristics in Great Britain are far from protected elsewhere and there may be great sensitivity in this regard. It cannot be for a public authority in this country to determine how best to advance equality of opportunity between people subject to foreign law, traditions and customs. These points reinforce the force of the normal presumption in this case.”
“There may be circumstances where the kinds of factors listed in section 149 are so germane to the lawfulness of a decision or policy to be implemented overseas that they become relevant factors that the public body must take into account in accordance with ordinary judicial review principles. Well-known examples of where the courts have examined in detail the Government’s assessment of the effect of decisions overseas are the quashing of the decision to use public money to finance the Pergau Dam in Malaysia (R v Secretary of State for Foreign and Commonwealth Affairs, Ex p World Development Movement Ltd[1995] 1 WLR 386 ) or ‘the whole sad story’ of the removal of the Chagossians from BIOT: see per Lord Hoffmann, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)[2009] AC 453 , para 9. If in respect of a particular decision, the Minister ought to have taken into account the need to minimise disadvantages suffered by persons who share a relevant protected characteristic in a foreign country where the decision will be implemented, then that decision is open to challenge for failure to take that into account. That is true regardless of the application or not of the PSED.”