Outer House refuses entrepreneur’s challenge to visa extension refusal over withdrawn Covid concession

About this case:

• Citation:
  [2026] CSOH 91
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Harrower

Lord Harrower held that the guidance could not give rise to a legitimate expectation that the concession remained available because it expressly stated that it was subject to change and had to be read alongside the Immigration Rules. He also rejected arguments that the Home Office had acted irrationally or failed adequately to consider documentation submitted with the application.

Jharna Shital Adwani, a national of India, entered the United Kingdom in September 2016 and was initially granted leave to remain as a student. After completing her studies, she obtained leave first as a graduate entrepreneur and subsequently under the Tier 1 (Entrepreneur) route. On 14 September 2023 she applied to the Secretary of State for the Home Department to extend her leave under that route. The application related to a café she operated in Edinburgh.

The case was heard by Lord Harrower, with James, instructed by Drummond Miller LLP, appearing for the petitioner and Smeaton, instructed by the Office of the Advocate General, appearing for the respondent.

Job creation requirement

To obtain an extension, the petitioner required to demonstrate through specified documentation that her business had created the equivalent of two full-time jobs for settled workers. Each job ordinarily had to exist for at least 12 consecutive months, with a full-time job defined as at least 30 hours a week or 120 hours a month. Part-time roles could be combined to amount to a full-time job, provided the required equivalent employment existed over the relevant period.

Applicants were also required to submit specified evidence including HM Revenue & Customs real time information, signed timesheets and proof that the workers relied upon had settled status. During the Covid-19 pandemic the Home Office introduced a temporary concession allowing non-consecutive months of employment to count towards the 12-month requirement where businesses had been disrupted.

The concession was withdrawn on 1 August 2023, before Ms Adwani lodged her application. She nevertheless relied on version 10/2021 of the Home Office’s published Tier 1 guidance, which remained accessible online and continued to describe the concession. The guidance stated that applicants whose businesses had been disrupted no longer needed to employ two people for 12 consecutive months and could combine employment across different months.

However, its first page also stated that it was correct as at October 2021, was subject to change and should be read together with the relevant Immigration Rules. The Home Office’s current visas and immigration webpage further stated that there were “no current COVID-19 visa application concessions in the UK.”

Application refused four times

The Home Office initially refused the application on 28 January 2024 and maintained that refusal following three further reconsiderations, most recently on 11 August 2025. Before the first decision, the petitioner had been asked to provide further evidence concerning the settled status of employees and real time PAYE information.

In the final review decision, the Home Office accepted that proof of settled status had by then been provided. It nevertheless concluded that the material did not demonstrate employment equivalent to two full-time workers for every relevant month. The decision-maker also maintained the objection concerning the specified real time information and confirmed that the Covid concession had already been withdrawn before the application was lodged.

Ms Adwani sought judicial review of the refusal decisions. Her primary argument was that the continuing online guidance represented a clear and unambiguous statement that the Covid concession remained available and that she had a legitimate expectation that the Home Office would apply it. Alternatively, she submitted that the guidance represented the respondent’s published policy and should have been followed unless there was a good reason to depart from it.

She further argued that the refusal was irrational because payroll documentation and real time information had been provided, and that the Home Office had failed properly to apply a provision of the Immigration Rules permitting flexibility where documents were supplied in the wrong form or information could be verified elsewhere.

No legitimate expectation

Lord Harrower rejected the legitimate expectation argument. He noted that such a claim could arise only from a promise or representation which was “clear, unambiguous and devoid of relevant qualification.” While the 2021 guidance continued to describe the Covid concession, it had expressly warned applicants that the guidance was subject to change and required it to be read together with the Immigration Rules.

Lord Harrower said: “The guidance was perfectly clear on its face, firstly, that although correct at the time of publication in October 2021, it was subject to change; and secondly, that it should be read together with the relevant Immigration Rules themselves.” Additionally, he continued: “In these circumstances, I do not consider that any representation made within it that the COVID-19 exemption still applied, could be considered to be clear, unambiguous and devoid of relevant qualification.”

An applicant who consulted the Rules, he held, would have appreciated either that the concession had been withdrawn or, at minimum, that the older guidance could not be regarded as an unequivocal representation that it remained in force.

Guidance subject to Immigration Rules

The petitioner had argued that the Home Office should not be permitted to rely during the judicial review proceedings on its contemporary visas and immigration webpage, as that page had not been expressly relied upon in the original decision letters. Lord Harrower rejected that submission. He said the webpage was contemporary material to which an applicant would have been directed by following the instructions contained in the guidance itself, and its contents were consistent with the reasons given in the refusal decisions.

He also rejected the alternative argument that the Home Office had unlawfully departed from its published policy. Properly understood, the guidance itself stated that it was subject to change and had to be read together with the Immigration Rules “in whatever form they might take from time to time.” “At the relevant time, namely, when the application was submitted,” Lord Harrower observed, “the Immigration Rules had withdrawn the COVID-19 exemption.”

Failure to meet job requirement decisive

Lord Harrower went on to reject the petitioner’s challenges concerning the employment documentation. By the time of the final review, the Home Office had considered the additional evidence concerning the workers’ settled status. Even taking those workers into account, however, it remained satisfied that the petitioner had not demonstrated employment equivalent to two full-time workers for the required period.

The judge noted that there was no challenge to the rationality of that particular conclusion. Instead, the petitioner’s complaint focused on the Home Office’s approach to the form in which real time information and payroll documentation had been submitted.

Lord Harrower held that any defect in that part of the decision-making process could not justify reducing the decision because the documentation issue was only an additional reason for refusal. The primary reason remained the failure to satisfy the substantive job creation requirement. He was also not persuaded that the respondent had failed to consider the provision allowing flexibility over documentation.

The relevant rule permitted, rather than required, a decision-maker to grant an application despite an error or omission where missing information could be verified elsewhere and the applicant met all the other requirements.

Lord Harrower said that even if the missing information could be established from Ms Adwani’s payroll documents, the Home Office remained under no obligation to grant the application because it had already concluded that she had not met the underlying job creation requirement.

He concluded that the petitioner had failed to demonstrate that the refusal was either irrational or inadequately reasoned, adding that the reasons given were sufficient to allow her to understand why her application had failed.

Lord Harrower said there was “no merit in any aspect of the petitioner’s submissions, however attractively they were presented by Mr James on her behalf”. He accordingly refused the orders sought, with the question of expenses reserved.