The issue in a nutshell. This is an appeal by the Secretary of State for the Home Department against a decision of Cavanagh J on an issue affecting migrants

I use this term as a shorthand for persons subject to immigration control within the meaning of the Immigration Act 1971 .

who enjoy leave to remain in the UK under section 3C of the Immigration Act 1971. In bare outline, the issue is as follows. A foreign national who has leave to remain in the UK for a finite period (“limited leave to remain”, or “LLR”) may apply before it expires to be granted leave for a further (finite or indefinite) period. Typically their existing leave will expire before a decision is made on that application. Section 3C addresses that situation by providing for an automatic extension of the existing leave until the decision is made (and any review or appeal processes exhausted) – so-called “section 3C leave”. The problem is that during that period the applicant has no ready means of showing that they enjoy leave to remain, and that can give rise to serious difficulties if they need to prove their immigration status to a third party such as a potential employer or landlord. The Claimants say, and the Judge held, that the Secretary of State is acting unlawfully by failing to provide for migrants on section 3C leave to be given a form of documentation which will at any point in time confirm their immigration status. More specifically, they say that she

For convenience, I will refer to the Secretary of State throughout this judgment by the gender of the current incumbent.

could and should have provided them with a form of accessible digital documentation equivalent to the “eVisas” regime which are already given to some migrants: I will refer to this for short as “digital documentation”.

The Claimants. The Refugee and Migrant Forum of Essex and London (“RAMFEL”) is a charity which supports vulnerable migrants living in London and Essex. It deals with between 2,000 and 2,500 clients a year, many of whom it says have suffered serious problems as a result of being unable to prove that they have section 3C leave. Ms Cecilia Adjei is a Ghanaian national who entered the UK on a visitor visa in October 2000. Although she has had a substantial period as an overstayer, in March 2016 she and her young son were granted 30 months’ LLR. That leave has since been twice extended, but on each occasion she had a substantial period of section 3C leave, during which she claims to have suffered harm as a result of her inability to prove her immigration status.

The judicial review proceedings. Ms Adjei commenced judicial review proceedings in October 2022 and RAMFEL in February 2023. The two claims were subsequently consolidated, with RAMFEL as the First Claimant and Ms Adjei as the Second Claimant. They raised four grounds of challenge. Two were substantial – that is, that the failure to provide documentation which enabled migrants with section 3C leave to prove their immigration status was unlawful because it contravened the so-called Padfield principle and/or that it was “Wednesbury-unreasonable”; and two were procedural – that is, that the Secretary of State had failed to comply with the public sector equality duty under section 149 of the Equality Act 2010 (“the PSED”) and/or that she was in breach of the duty imposed section 55 of the Borders, Citizenship and Immigration Act 2009 to (in short) have regard to the best interests of children.

Thedecision. The claims came on for hearing before Cavanagh J on 19 and 20 March 2024. He handed down his judgment ([2024] EWHC 1374 (Admin)) on 7 June, finding for the Claimants on two of their four grounds. He asked for submissions as to what form of order should be made to give effect to his decision. The parties were agreed that he should make declarations in the following terms:

Those declarations were accordingly made in an Order dated 27 June. No mandatory order was made directing the Secretary of State forthwith to provide a digital document to everyone with section 3C leave, but that reflects the usual understanding that the Secretary of State will as soon as possible take whatever steps are necessary to rectify the unlawfulness identified in a declaration. In fact Ms Adjei did seek a mandatory order that the Secretary of State should take “all necessary steps to ensure that [she] was provided with an eVisa as digital proof of her immigration status forthwith”. The Judge declined to make such an order, but only on the basis that she currently had LLR which would not expire until March 2025

In fact his written reasons on this point appear to say that her current leav e would expire on 31 December 2024 but then refer to her “transferring onto section 3C leave ” in March 2025 ; b ut nothing turns on this possible incons i stency .

, at which point the effect of his first declaration would be that the Secretary of State would be obliged to grant her an eVisa.

The appeal. Permission to appeal was granted by Elisabeth Laing LJ on 2 September 2024. She also ordered a stay pending the hearing of the appeal. On 7 October she gave the Claimants permission to cross-appeal so as to argue that they should have succeeded also on the Padfield ground. They did not seek to revive the PSED ground.

Representation. The Claimants have been represented before us by Ms Stephanie Harrison KC and Ms Shu Shin Luh and the Secretary of State by Mr Zane Malik KC. All three also appeared below.

Cross-reference to Cavanagh J’s judgment. Cavanagh J’s judgment runs to some 256 paragraphs and is impressively clear and thorough. In the interests of economy, I will at some points in this judgment set out only the matters which are central to the particular question which I am addressing, and refer readers to the passages in his judgment in which fuller details are given.

I use the term “primary leave to remain” to denote leave to enter or remain granted by a decision of the Secretary of State, in distinction from section 3C leave which, as we will see, arises by operation of law. The statutory scheme governing the grant to foreign nationals of leave to enter and remain in the UK is to be found in sections 1-4 of the 1971 Act. The main operative provision is section 3: for our purposes only subsections (1) and (3) are relevant.

Section 3 (1) reads (so far as material) as follows:

As appears from section 3 (1) (b), leave may be granted either for a limited period (i.e. LLR) or indefinitely (“indefinite leave to remain”, or “ILR”, otherwise referred to as “settlement”). The length of a period of LLR depends on the basis on which it is granted, but in the kinds of case with which we are concerned the typical period is thirty months. LLR may (and in practice will) be subject to one or more types of condition, listed in section 3 (1) (c). I have not quoted the list, but it includes conditions restricting the migrant’s right to work and their access to welfare benefits. ILR is only granted to migrants who have been present in the UK, with the benefit of LLR, for a minimum period, typically either five or ten years.

Section 3 (3) provides (so far as material):

It is this provision which allows for further periods of leave to be granted, either in the form of further LLR or, where the relevant conditions are satisfied, in the form of ILR. Variations to increase the duration of leave are often colloquially referred to as “extensions”, but, as will be seen, the statute only uses that term in the specific context of section 3C; and in the context of the grant of further leave under section 3 (3) I will stick to the statutory language of “variation”.

Section 4 (1) of the Act provides (so far as material):

Historically, the record of a grant of LLR took the form of a physical document, typically a visa attached as a sticker or “vignette” to the recipient’s passport. But these were in most cases replaced many years ago by biometric residence permits (“BRPs”) in the form of a card which will confirm both the grant of the leave and its duration and any conditions: authority to issue documents of this kind derives from section 5 of the UK Borders Act 2007 and the Immigration (Biometric Registration) Regulations 2008. The BRP and/or any letter accompanying its delivery will constitute notice in writing in accordance with section 4 (1) of the 1971 Act. A migrant who enjoys primary LLR can thus readily demonstrate their immigration status simply by producing their BRP.

S uch proof would not be 100% reliable because the grant could in rare cases have been cancelled, or curtailed; but that is not for our purposes a significant qualification.

In May 2021 the Secretary of State published a policy paper entitled New Plan for Immigration: Legal Migration and Border Control,which included plans for BRPs to be replaced by eVisas. The evidence about these which was filed before Cavanagh J took the form of a witness statement dated 20 September 2023 from Jonathan Wright, the Head of Appeals, Litigation and Administrative Review Policy in the Home Office (but who also describes himself as “of the Simplification and Systems Unit in the Home Office”). That statement exhibited the New Plan for Immigration and a further document called View and Prove Immigration Status. It was amplified to a limited extent by a second statement from Mr Wright dated 20 November. The Judge asked for some further information, which was supplied in correspondence following the hearing.

The statements do not provide much detail, but they are to some extent amplified by the exhibits, and in any event the broad picture is clear enough and was not in issue before us. eVisas are a form of online digital record, maintained by the Home Office, of a person’s immigration status, which is updated in real time so as to show their current status of the holder at any time. Access to that record is available not only to the holder themselves but also to any third party to whom they give the necessary “share code” and is accordingly a ready means of proving their immigration status to third parties. A person with an eVisa does not need a BRP or any other formal physical record of the grant of leave (though we understood from Mr Malik that they would receive a letter or email notifying them of the grant and giving information about how to access the eVisa).

The New Plan for Immigration made it clear that BRPs would be “gradually [my emphasis] … phased out by December 2024” (see para. 46). Consistently with that, Mr Wright’s evidence was that eVisas began to be issued to successful applicants for further leave to remainfrom 26 January 2023, but only in relation to some categories of migrant, defined by the “route” by which they qualified (that is, the basis on which the visa was granted – e.g. as a student or a skilled worker or a spouse). At the time of the hearing before Cavanagh J they were available for 25 out of the 89 routes. He was told, again consistently with the New Plan for Immigration, that eVisas would be issued to successful applicants in all categories by the end of 2024. The current position is strictly irrelevant, but in fact it appears from the Explanatory Memorandum to the 2025 Regulations, to which we were referred without objection, that the Secretary of State’s aim was achieved: the Memorandum says that in the case of migrants granted LLR for more than six months BRPs ceased to be issued at the beginning of November 2024.

At the time that eVisas were first issued there was no statutory basis for their use: they were introduced by the exercise of the Secretary of State’s “ancillary and incidental administrative powers” (to use the language of Lord Sumption in para. 28 of his judgment in R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51, [2013] PTSR 99). Legislative provision was first made for them by amendments to the 2008 Regulations introduced by the Immigration (Biometric Information etc) (Amendment) Regulations 2025 with effect from 27 March 2025.

As already noted, section 3C of the 1971 Act addresses the position of a person who has applied for a further period of leave under section 3 (3) but whose existing leave expires before they receive a decision. The legislative history is set out in detail at paras. 28-33 of Cavanagh J’s judgment. It is sufficient here to note that section 3C was inserted by section 3 of the Immigration and Asylum Act 1999; it has been subject to some amendment since then, but none that is material for our purposes.

Section 3C (1) prescribes the circumstances in which an entitlement to section 3C leave arises:

I will refer to the requirement at (b) as being that the application is made “in time”.

Section 3C (2) provides for the extension of leave in the circumstances prescribed by subsection (1). It begins:

I need not set out paragraphs (b)-(d). In short, their effect is to provide for the extension of leave to cover not only, as provided for by paragraph (a), the period until the initial decision on the variation application but also the periods during which an unsuccessful applicant can appeal or ask for an administrative review and pending the outcome of any such appeal or application. That means that the date on which section 3C leave finally expires will depend on a variety of circumstances, and is unknowable in advance.

Where leave is extended under section 3C it remains subject to the conditions which form part of the previous primary leave.

It will be seen that although section 3C leave constitutes an “extension” of the primary leave granted by the Secretary of State, it is not the result of any decision on her part. Rather, it is triggered automatically by the making of the variation application and takes effect by operation of law (“by virtue of this section”). In consequence, an in-time applicant for further LLR receives no official notification that they enjoy section 3C leave pending the expiry date, whether under section 4 (which applies only where the Secretary of State grants leave) or otherwise.

There is an important qualification to the point made in the previous paragraph. As we have seen, an eVisa provides access to a constantly-updated record of the holder’s current immigration status, and it can show not only primary leave to remain but also any section 3C leave. Thus a holder of an eVisa who enjoys section 3C leave has access, and can give access to others, to an authoritative digital record of that fact which will continue to be current until the leave expires on one of the events identified at para. 20 above. In short, their enjoyment of section 3C leave is immediately demonstrable.

However, that qualification did not at the time that these claims were brought, or indeed at the time of the hearing before Cavanagh J, benefit anyone who was then on section 3C leave. That is because, as part of the gradual approach noted at para. 16 above, the Secretary of State gives eVisas only on the occasion of a grant of primary leave (whether for the first time or as further leave by way of variation): they are not granted during the currency of any period of leave (primary or under section 3C). Thus, since the first eVisas were not granted until January 2023 and will typically (in the case of LLR) have been for a period of thirty months, the first date that the primary leave of the holder of an eVisa would expire was in July 2025: only then would the holder begin (if they made an application for further leave) to enjoy section 3C leave. And that is only for the first categories: since the introduction of eVisas to the full range of applicants for LLR was not complete until November 2024, there will until May 2027 be some migrants with LLR who do not have eVisas and who thus, if they apply for further leave, will have no access to digital proof of their entitlement to section 3C leave.

It should be appreciated that section 3C leave is not in any sense a marginal feature of the UK system. On the contrary, migrants with LLR who are intending to settle in the UK permanently (who I take to be the majority, though we were given no figures) will necessarily have to make more than one application for further leave before they obtain ILR – two applications in the case of those on a five-year “route to settlement”, and four if they are on a ten-year route. Because most such applications are made very close to the expiry date of the primary leave, and because it takes a long time for the Home Office to make a decision, in some cases exacerbated by the time taken by any review or appeal, each such application will result in a long, sometimes very long, period of section 3C leave. At para. 39 of his judgment Cavanagh J says:

At para. 37 he had addressed the question of how many people are on section 3C leave at any one time. He refers to a figure of 370,015 people in 2019 given by the Secretary of State in response to a Freedom of Information Act request from RAMFEL. We do not know whether that figure has gone up or down since then, and he accordingly goes no further than concluding that the number is “very substantial”, but at least it gives an idea of the order of magnitude with which we are concerned.

As outlined in para. 1, the issue on this appeal concerns the position of migrants who need to demonstrate their lawful immigration status to third parties. The circumstances in which that will be necessary have become more frequent, and the consequences of being unable to do so more serious, as a result of the introduction in 2014 of the so-called “hostile environment” regime

That was the label given to the regime by the Secretary of State when it was first introduced. There has latterly been a preference for the description “compliant environment”, and Cavanagh J uses that term in his judgment. I will continue to use the original label, mainly because “compliant environment” is bad English: it is migrants, not the environment itself, who it is intended should be “compliant”. But I also think that it gives a franker description of the purpose of the regime, which is, perfectly properly, to make life difficult for people who are in the UK illegally.

. There is a helpful overview of that regime in para. 45 of Cavanagh J’s judgment:

At paras. 48-81 of his judgment Cavanagh J gives a comprehensive review of the measures which comprise that regime, with full references to its statutory components, together with how it impacts migrants with section 3C leave. As regards the measures themselves, I need not reproduce his account, but I can summarise the essentials as follows.

Migrants with primary LLR should not normally have any difficulty in proving their immigration status for those purposes, and – importantly – in doing so immediately. At the time of the hearing before the Judge most will have had a BRP card which they could simply produce to the third party in question, but some will already have had an eVisa, in which case they could provide the share code from which their immigration status could be immediately demonstrated.

The position is different for migrants with section 3C leave. As explained at para. 24 above, none will at the time of the hearing have held an eVisa, and their BRP would show that their primary leave had expired. As we have seen, they do not receive any document at the point that their leave kicks in. But, even if they had, all that it could show was that they had leave at the date of the document and not that it remained current at any later point: as explained at para. 20, the expiry date of section 3C leave is unknowable in advance. Definitive information about whether a period of section 3C leave is current at any given date can only be provided by the Home Office.

In recognition of that fact, various systems have been put in place whereby a third party can obtain verification from the Home Office of the status of a migrant who has leave to remain: in practice these will mainly be migrants with section 3C leave. The systems differ according to the purpose for which the information is required. What all of them have in common, however, is that they cannot provide immediate verification.

I start with the systems which the Home Office has put in place to provide verification of status in the employment and rental contexts. Details are given by Cavanagh J at paras. 55 and 70 respectively of his judgment, but I can sufficiently summarise them as follows. Employers who want to ensure that a foreign national employee, or potential employee, is entitled to work can consult an Employer Checking Service (“ECS”) which will if appropriate issue a “Positive Verification Notice” (“PVN”). Likewise, landlords can obtain a “Positive Right to Rent Notice” from the Landlords Checking Service (“LCS”). The ECS aims to provide a response within five days, although there is evidence that that does not always happen. As for the LCS, if a check is not performed within two days, the landlord automatically receives an email telling them that they may rent the property to the applicant: the system is accordingly proof against delays.

As regards the other bodies referred to at para. 27 above, which are all in the public sector, Cavanagh J gives details of a specific system for NHS Trusts to check the immigration status of patients for the purpose of establishing whether they should be charged (see para. 78). He does not give details about the others, but at para. 9 of his witness statement Mr Wright says that “[g]overnment departments may contact the Home Office to undertake checks where an individual is unable to demonstrate their status”: that would obviously apply to DWP and DVLC, and I dare say also the SLC though it is not strictly speaking a government department. In fact, para. 18 of the Secretary of State’s Detailed Grounds of Defence refers to something called “the Status, Verification and Enquiries Checking Service”, and associated guidance, which suggests that the arrangements may be less ad hoc than Mr Wright’s language suggests. There is no evidence about any required or typical timescales for responding to checking requests of this kind; but all that matters for our purposes is that they clearly cannot provide immediate verification.

It is the Claimants’ case that, despite the measures put in place by the Secretary of State as described above, the absence of any means to demonstrate their immigration status immediately means that many migrants with section 3C leave experience serious problems. Cavanagh J addresses the evidence in this regard as follows.

The difficulties said to be suffered by employees or potential employees are addressed at paras. 56-57 of the judgment. Having explained how migrants with primary leave do not normally have a difficulty, Cavanagh J says:

He goes on, at paras. 58-64, to record Ms Adjei’s evidence of the difficulties that she had encountered when on section 3C leave. I need only give a short summary here. She is a bank healthcare support worker. During two successive periods of section 3C leave she experienced serious delays with the ECS service which resulted in her being unable to work for a two-week and a three-week period respectively. On the second occasion, in 2022, the employer told her advisers that “we as are most others are experiencing extended delays to this service and the standard 5-day turnaround time is not currently adhered to by the Home Office”. At para. 65 he summarises the evidence of a witness from the Joint Council for the Welfare of Immigrants (“JCWI”) giving examples of nine individuals who had suffered hardship consisting of periods out of work, or withdrawals of job offers because of difficulties in proving a right to work, while on section 3C leave. At para. 66 he says:

As for the position of potential tenants, at paras. 71-72 of his judgment Cavanagh J says:

In short, the problem with the LCS is not so much that it involves a significant delay as that some landlords will prefer other potential tenants in whose case they do not have to be bothered with even so simple a check.

As regards other contexts in which it was claimed that migrants encountered difficulties, at para. 75 of his judgment Cavanagh J refers to evidence about four migrants on section 3C leave who were entitled to benefits but who encountered serious delays in payment because they could not satisfy the DWP that their conditions of leave entitled them to the benefits in question. At paras. 80-81 he refers to problems caused to students on section 3C leave by being unable to demonstrate their status to their universities or, particularly, to the SLC; and to women refused access to refuge accommodation for the same reason.

Para. 82 of Cavanagh J’s judgment sets out the results of research carried out by RAMFEL. I should reproduce it in full:

That is a concerning picture. However, although there is no reason to doubt RAMFEL’s careful analysis, it must be recognised that its clients are unlikely to be representative of the whole cohort of migrants with section 3C leave, since it is those with problems who are more likely to consult an advice agency.

Cavanagh J set out the Secretary of State’s response at paras. 83-90 of his judgment. I can sufficiently summarise it as follows. Through Mr Malik she acknowledged that the absence of documentation by which a migrant on section 3C leave can immediately demonstrate their status meant that there would be some circumstances in which they might suffer some harm, as the Claimants’ evidence (which she did not dispute) illustrated. But she had taken reasonable measures to prevent or minimise any such harm. Specifically she relied on the establishment of the ECS and the LCS, which were supplemented by published guidance to employers and landlords on their operation, by Codes of Practice designed to prevent unlawful discrimination, and by a helpline; and, as regards NHS providers or Government departments, on their ability to contact the Home Office to undertake checks where an individual is unable to demonstrate their status. Mr Malik submitted that in the light of those measures the evidence did not establish that the failure to issue documentary proof to all holders of section 3C status caused “a seriously harmful impact upon a particular group of individuals”: any difficulties were short-term and encountered in only relatively few cases. He relied on evidence in para. 11 of Mr Wright’s first witness statement to the effect that:

Of the four grounds of challenge which the Claimants advanced before the Judge we are now concerned only with three. The two substantive grounds of challenge – “ Padfield ” and “ Wednesbury- unreasonableness” – overlap considerably and I will take them together. I will then consider separately the ground based on section 55 of the 2009 Act, which is concerned not with substance but with the process by which the Secretary of State’s policy about provision of documentation to migrants with section 3C leave was arrived at.

The starting-point is to identify what it is that the Claimants say is unlawful. Before the Judge their case was based on the Secretary of State’s failure to provide either physical or digital documentation which would immediately prove their section 3C status. However, as he pointed out at para. 209 of his judgment, a physical document would be incapable of accommodating the fact that section 3C leave is, of its nature, of uncertain duration. That feature of section 3C leave can only be accommodated by a digital resource, such as an eVisa, which records and gives access to the migrant’s status in real time; accordingly the claim had to be based on the Secretary of State’s failure to provide digital documentation of that kind. The Claimants have not sought to challenge that conclusion, and, as we have seen, the Judge’s declaration referred only to a digital document.

As I have said, the Claimants’ case that the Secretary of State’s failure to provide a form of digital documentation was unlawful was put on the alternative bases of breach of the Padfield principle and Wednesbury -unreasonableness. I will take the latter first, since it was the basis on which the claim succeeded before the Judge.

I will in this judgment use the terms “ Wednesbury- unreasonable” and “irrational” interchangeably. They refer to the same concept and although there are different views as to which is the more appropriate I see no reason to enter into that debate.

At paras. 54-59 of my judgment in Pantellerisco v Secretary of State for Work and Pensions [2021] EWCA Civ 1454, [2021] PTSR 1922, which involved a rationality challenge to an aspect of the Universal Credit Regulations, I discussed the principles applying to such a challenge. I was content to follow the lead of Rose LJ in Secretary of State for Work and Pensions v Johnson [2020] EWCA Civ 778, [2020] PTSR 1872 and rely on the classic formulation of Lord Greene MR in Associated Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 that the decision of a public authority was unlawful if it was “so unreasonable that no reasonable authority could ever have come to it” (pp. 233-234), coupled with Lord Steyn’s alternative formulation in Boddington v British Transport Police [1998] UKHL 13, [1999] 2 AC 143, that it must be “outside the range of reasonable decisions open to the decision-maker” (p. 175). It was not submitted to us by either party that we should take any different approach, and I am content to proceed on the same basis. It is well recognised that those formulations are very broadly expressed, but, as Lord Diplock said in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, the question posed by them is one which “judges by their training and experience should be well equipped to answer”. One important element in that training and experience is a recognition that the design and implementation of administrative systems typically involves a range of judgements which for reasons both of constitutional principle and of relative competence, are properly taken by ministers, and that Courts should not intervene simply because it appears that better solutions could have been devised.

There were some attempts by both parties to apply observations, or details of the reasoning, from the judgments in Johnson and Pantellerisco in the present case. I did not find that a helpful exercise. The reasoning in cases of this kind is typically conditioned by the facts and circumstances of the particular case, and they cannot be readily transposed.

Cavanagh J’s reasons for holding that the Secretary of State’s failure was Wednesbury-unreasonable are clearly set out at paras. 196-218 of his judgment. He started by identifying three “key considerations”, which I can summarise as follows.

The first consideration is the fact that, as he put it at para. 197:

He goes on to amplify that statement at paras. 199-201. The points which he makes are mostly sufficiently apparent from the passages that I have summarised at paras. 34-37 above, but I should record that he notes that the hardship suffered by migrants who have difficulties obtaining employment or accommodation will inevitably be suffered also by any dependent children.

The second consideration is summarised at para. 202 as follows:

Cavanagh J supports that conclusion by reference to the Explanatory Notes to the 1999 Act, which introduced section 3C, and to the judgment of Sir Stephen Richards in this Court in R (Akinola) v Upper Tribunal [2021] EWCA Civ 1308, [2022] 1 WLR 1585. At paras. 203-207 he develops the point and addresses Mr Malik’s arguments to the contrary.

The third consideration, which Cavanagh J describes as “perhaps the most significant”, is addressed at paras. 208-210. At para. 208 he acknowledges that

and at para. 209, to which I have already referred (see para. 40 above), he accepts that that was the case as regards the provision of a hard-copy document. However, it is his view that the existence of the eVisa regime conclusively establishes that there is no difficulty in principle about providing a digital record of section 3C status. Para. 210 reads:

In short, the Judge proceeded on the basis that there was no evidence before him, and it was not contended, that it was impractical for the Secretary of State to introduce “eVisas, or the like” forthwith for those on section 3C leave.

At para. 211 he summarises his conclusion on the basis of those paragraphs as follows:

At para. 212 he tests that reasoning by re-casting it in the form of answers to four questions which Rose LJ had addressed at para. 50 of her judgment in Johnson . I need not reproduce the paragraph, since the essential points are the same as he has already made, in short that (as he puts it at sub-para. (4)) “[t]here are very strong reasons in favour of giving digital proof of status to those with section 3C leave, and no good reasons that I have been able to identify for not doing so”.

At paras. 213-218 Cavanagh J makes six additional points. These address incidental questions of various kinds and do not go to the heart of his reasoning and I need not summarise them here.

Ground 1 of the Secretary of State’s grounds of appeal reads simply:

It will be convenient if I start with my conclusion on that ground and then go on to give my reasons for it. I do not believe that Cavanagh J’s reasons support his conclusion that it was Wednesbury -unreasonable for the Secretary of State not to have provided, as at the date of the Claimants’ challenge, immediately accessible digital proof of status for migrants on section 3C leave. I take his three “key considerations” in turn.

As to the first, I agree with him that the evidence establishes that where migrants with section 3C leave are unable to provide immediate proof of their status they may suffer prejudice which will in some cases amount to serious harm and/or financial loss. Indeed that was not disputed by the Secretary of State. The evidence does not, and realistically cannot, establish in how many cases this occurs; or, where it does, what the distribution of cases is along the scale from minor prejudice to serious harm. The circumstances of many migrants on section 3C leave will be such that they do not in fact need to prove their status for the purpose of obtaining or keeping work or accommodation, or for any other reason. And even for those who do, for many the ECS, LCS and other systems will be satisfactory because the other party does not require immediate demonstrability. I would not question the Judge’s assessment that the number of those who are adversely impacted by their inability to prove their immigration status immediately is “substantial”, but that is an elastic term and is consistent with the numbers being small in comparison with the total numbers of migrants on section 3C leave. I do not wish to appear to be downplaying the seriousness of that impact in the cases where it occurs; but the uncertainty about the numbers of such cases is nevertheless a relevant part of the picture.

As to the second consideration, I should say by way of preliminary that I am not sure that the real point underlying it needs to be couched in terms of the “legislative purpose”, by which I understand the Judge to mean something which it is clear from the terms of the legislation that Parliament intended should happen even though ( ex hypothesi ) it did not provide for it. But I will park that question for the moment and address his point in the form in which he expresses it.

I respectfully disagree with Cavanagh J that it is part of the purpose of the various statutes to which he refers that migrants with section 3C leave should be able immediately to demonstrate their immigration status, and thus their access to the rights that depend on it. It was of course the purpose of section 3C that migrants enjoying leave in accordance with its terms should be entitled to enjoy the rights consequent on their previous primary leave to remain and any conditions of that leave: that is confirmed, though in truth it is obvious, both by the Explanatory Notes to the 1999 Act and by Akinola (see in particular para. 40 of the judgment of Sir Stephen Richards). I will also assume, though this is less straightforward, that it was implicit in that purpose (or in any event in the purpose of the legislation giving effect to the hostile environment) that they should have an effective means of demonstrating that entitlement to third parties. But it does not follow that such demonstrability should be immediate, and I see no reason to infer that Parliament had any intention that that should be the case. In circumstances where the legislation itself says nothing about the documentation of section 3C leave, the natural understanding would be that it would be a matter for the discretion of the Secretary of State in what way migrants with section 3C leave would be enabled to demonstrate their status, including the timescale within which they should be enabled to do so. She would in exercising that discretion be entitled to take into account all relevant considerations, including practicability. There is no reason to impute to Parliament an intention that she should exercise that discretion so as to provide for immediate demonstrability, as opposed to the kind of system which she in fact introduced.

There is in any event a more specific reason against attributing any such purpose to Parliament. The Judge’s unchallenged (and plainly correct) finding was that a physical document is incapable of providing immediate demonstrability of current immigration status (see para. 40 above): it can only be achieved by means of an immediately accessible online digital record of the eVisa kind. Yet there is no evidence, and no reason to think, that such systems were contemplated in 1999, when section 3C was introduced, or even in 2014 when the principal legislative components of the hostile environment were enacted. I do not see how it can be said to have been part of the legislative purpose on either occasion that the Secretary of State should provide for immediate demonstrability when no practicable means of achieving it were then available.

I return to the point which I parked at the beginning in para. 55 above. I am bound to say that reference to the “legislative purpose” seems to me in this context something of a distraction, arising, I suspect, by way of cross-contamination from the Padfield ground. Whether it was unlawful for the Secretary of State not to provide a means whereby migrants with section 3C leave can immediately prove their immigration status depends on whether her omission to exercise her discretionary powers (whatever their source) in order to do so was unreasonable in the necessary sense. In deciding that question it may well be relevant to consider the aims of any primary legislation in the same area, but the extent to which that is a useful exercise will depend on the case. In the present case I do not think that it adds much. It is obvious that, other things being equal, it would be better to provide a means of verification which was straightforward and immediate than one that depended on having to make enquiries with the Home Office, and it is unnecessary to cudgel one’s brains about whether that can be said to be a “purpose” of section 3C itself and/or of the 2014 legislation. The principal question on the facts here is whether there was at the material time a practicable means of providing such verification: that is the subject of the third “key consideration”, to which I turn.

Cavanagh J’s third consideration, which he himself describes as the most significant, was that the fact that eVisas were already in the course of being rolled out for migrants with LLR was at least prima facie evidence that they, or equivalent digital proof of status, could forthwith be made available to everyone with section 3C leave, and that no reason had been shown why he should not draw that conclusion: see para. 210 of his judgment, quoted at para. 48 above.

I do not believe that that was a conclusion which the Judge was entitled to draw. There was explicit evidence that the Secretary of State had decided to introduce eVisas gradually: see para. 16. In fact, as appears from para. 24, the process was gradual in two respects:

The same point was put more fully in the Secretary of State’s application to this Court for a stay. Paras. 2-3 of section 11 of her Appellant’s Notice read:

At para. 4 any change to the timetable for roll-out is referred to as “on the information available ... practically impossible”. I accept that that submission post-dates the judgment below, but it is a useful encapsulation of the Secretary of State’s case.

Ms Harrison’s response was that, whether or not those points might have force, no such submission was made to Cavanagh J, and the Secretary of State could not seek to remedy that failure before us. She referred us to the Judge’s explicit statements, in both paras. 210 and para. 211 of his judgment, that, “crucially”, there had been no evidence, or submissions, to the effect that there were reasons of impracticality or expense why those on section 3C leave could not be provided with digital proof of their status.

As will be clear, I believe that that overstates the position. There was explicit evidence from Mr Wright that it was not possible to provide digital proof of online status to current holders of section 3C leave: see para. 59 above. It might have been better if he had given some explanation of why that was the case, but in broad terms at least the explanation is apparent from the basic facts (a) that there are at any one time hundreds of thousands of migrants on section 3C leave (see para. 25 above) and (b) that the Secretary of State had been proceeding according to a carefully constructed gradual timetable. It is, to put it no higher, hardly implausible that such a timetable cannot simply be abandoned and digital documentation issued to the whole cohort forthwith.

More fundamentally, however, it is important to recall that this is a claim based on irrationality and not on discrimination or interference with a Convention right which requires to be justified. The burden of proving that the unavailability of e-Visas (or the equivalent) to migrants with section 3C leave was Wednesbury-unreasonable is squarely on the Claimants. They adduced no evidence, and, so far as is apparent from the skeleton argument below, advanced no submissions in response to, Mr Wright’s statement referred to at para. 59 above. Neither in Ms Harrison’s skeleton argument below nor in her submissions before us was any positive case advanced that the Secretary State could, let alone should (in the sense that it was irrational not to), have abandoned her staged timetable and provided eVisas, or their equivalent, forthwith to all migrants on section 3C leave. (Nor was any argument advanced that she should have started the whole programme years earlier, so that immediate proof of status was available to everyone on section 3C leave by the date of the hearing.) On the contrary, the Claimants’ case as pleaded went no further than a broad assertion that the Secretary of State should have supplied “physical or electronic” (sometimes phrased as “hard copy or digital”) documentation by which section 3C status could be demonstrated, without any case being advanced as to how that could or should be done. It may be that it would have been difficult for the Claimants to assemble much evidence in support of a case that the Secretary of State could and should have abandoned her gradual approach to the introduction of eVisas; but that is not a principled reason for shifting the burden of proof to the Secretary of State. In truth if the unreasonableness of the impugned policy is not obvious without detailed evidential support a rationality challenge is unlikely to prosper.

The structure of the relevant paragraphs of RAMFEL’s Grounds of Claim is also instructive in this regard. Paras. 76-84 focus almost entirely on aspects of the impact which the absence of immediate demonstrability is liable to have on migrants with section 3C leave. Para. 85 then reads:

That is indicative of the inappropriate elision in the Claimants’ approach between an irrationality challenge and one based on discrimination or interference with Convention rights.

Ms Harrison submitted that, if it was indeed the Secretary of State’s case that it would not be possible for her forthwith to introduce eVisas, or an equivalent, for migrants on section 3C leave, that could and should have been raised in the context of the claim for relief, whereas she had in fact consented to the terms of the declarations made. I do not accept that submission. The effect of Cavanagh J’s judgment was, rightly or wrongly, that the Secretary of State’s omission to provide eVisas to everyone with section 3C leave was unlawful as at the date of the hearing, and that battle could not be re-fought in the context of relief. The correct course for the Secretary of State was to appeal and to seek a stay, as she did. If she had been minded to accept the Judge’s decision but needed to seek some time to implement it, it might well have been appropriate to ask for an order from the Court sanctioning a delay in implementation; but that was not her position.

For those reasons I respectfully believe that the Judge was wrong to find that the Secretary of State had acted irrationally in her approach to the provision of documentation to migrants on section 3C leave. My principal focus is on the third element in his reasoning, which he himself regarded as crucial. I do not need to decide whether, if there had been no evidence that it was not possible to provide eVisas forthwith to migrants with section 3C leave, it would have been irrational not to do so. I will only say that I do not think the question is straightforward. I do not for a moment question the evidence that in a substantial number of cases migrants on section 3C leave suffer real harm from not being able to demonstrate their status immediately. But the Secretary of State has taken significant measures to reduce the risk, and mitigate the extent, of such harm. They do not of course eliminate the risk totally, even if they operate perfectly, which there is evidence that they do not always do. But a system does not fail the rationality test simply because its design or its day-to-day operation is capable of improvement in some respects. An important consideration is the scale of the problem, as to which the evidence is not very satisfactory despite RAMFEL’s best efforts.

I should say, finally, that it may be that some of the problems about this case derive from the fact that the Claimants persisted for so long in advancing their claim that the Secretary of State should have provided physical proof of status. For the reasons given by Cavanagh J, it should have been apparent that the problems faced by migrants with section 3C leave could not be resolved by the provision of a physical document. I cannot help thinking that if they had concentrated from the start on the provision of eVisas, or equivalent, the evidence and arguments adduced on that aspect, by both parties, would have been clearer and fuller.

The Padfield principle derives from the decision of the House of Lords in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. As summarised in De Smith’s Judicial Review, 5th ed, at para. 5-077, it is that “decision-makers must exercise statutory powers in accordance with the policy and objects of the statute, and not for other collateral or extraneous purposes”. Before the Judge Ms Harrison sought to rely on that principle on the basis that by failing to provide for immediate demonstrability, and thus leaving migrants on section 3C leave vulnerable to the kind of harm identified above, she was exercising her powers in a way that “thwarted the purpose of the immigration legislative regime as a whole”.

Cavanagh J considered that submission with exemplary care, including a detailed review of the authorities, at paras. 116-121, 128-158 and 173-185 of his judgment. His reasons for rejecting it are sufficiently stated at paras. 174-179, which read as follows:

I respectfully agree with that reasoning. Ms Harrison submitted that it was wrong in two respects.

First, she submitted that the Judge was wrong to hold that the Padfield principle did not extend to the use of the Secretary of State’s “ancillary and administrative functions”. She relied on the fact that in the New London College case the Supreme Court acknowledged that it would be wrong in principle for the Secretary of State to use those powers in a manner which was “inconsistent with [the 1971 Act] and the Immigration Rules” (see per Lord Sumption at para. 29) and submitted that that was “a classic articulation of the Padfield principle”. I do not agree. It is obvious that a public body cannot exercise any of its powers in a way which is contrary to other legislative provisions; but that is not because of the Padfield principle, which is, as Cavanagh J demonstrates by reference to the authorities, altogether narrower. I note that Padfield was not even cited to the Court in the New London College case. No doubt at a very deep level the two limitations are underpinned by the same principle, namely that a public body must always act within the powers that Parliament intended it to enjoy: I made a similar point about the relationship between Wednesbury-reasonableness and the Padfield principle at para. 115 of my judgment in Johnson. But the Courts have developed different analytical tools for defining how that principle applies in different kinds of case, and it simply causes confusion and complexity (or, as the Judge put it, awkwardness and artificiality) to apply a tool designed for one kind of case in a different situation.

Second, Ms Harrison submitted that the Judge was wrong to say at para. 177 that there was “no statutorily defined scheme”, because he had himself found that the hostile environment regime comprised a variety of statutory measures. But there is no contradiction here. His point was that there was no statutory scheme governing the provision of documentation to migrants on section 3C leave.

I would add that even if it were appropriate to apply the Padfield principle in the present case, for the reasons given at paras. 56-57 above I do not believe that the approach taken by the Secretary of State to the provision of documentation to migrants on section 3C leave is contrary to any statutory purpose.

For reasons which will appear, we propose to adjourn this ground for further submissions, but in order to explain why, and the scope of the submissions required, I will need to say a little about it.

At the time of the hearing before us (and also below) the most recent authoritative case considering the effect of section 55 of the 2009 Act was the decision of this Court in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2021] EWCA Civ 193, [2021] 1 WLR 3049, (“the PRCBC case”). Since the argument before us the Court has given further consideration to section 55 inR (DM) v Secretary of State for the Home Department [2025] EWCA Civ 1273. I will return later to the relevance of DM, but for the present I will recapitulate the law as it stood before it was decided.

The material provisions of section 55 are as follows:

It will be seen that section 55 imposes two duties –

At para. 70 of his judgment in PRCBC David Richards LJ summarised the authorities about the effect of section 55 as follows:

I will refer to the process specified under (v) as “the section 55 exercise”.

One of the ways in which the Secretary of State performs her duty under section 55 (1) is, as contemplated by subsection (3), by giving guidance to the persons who exercise her functions in the immigration field. In November 2009 the Minister of State for Borders and Immigration and the Parliamentary Under-Secretary of State for Children, Young People and Families issued guidance on the application of both section 55 of the 2009 Act and section 11 of the Children Act 2004 (which imposes a similar duty on specified public bodies) entitled  Every Child Matters . In the Introduction to Part 2 (which is concerned with the section 55 duty) the guidance contained in it is described as “aimed at staff of the UK Border Agency and contractors when carrying out UK Border Agency functions” (see para. 5).

It is important to identify what the issues were before the Judge. I start with the Claim Form. The section 55 challenge was only in fact pleaded by RAMFEL, but following the consolidation of the two claims it was treated as having been made by Ms Adjei also. Section 3, which is supposed to identify “the decision to be judicially reviewed” refers only to “the Defendant’s ongoing breaches to … section 55 of the Borders, Citizenship and Immigration Act 2009”. The Statement of Facts and Grounds on this aspect covers only three paragraphs. Para. 94 starts by summarising the relevant law and concludes with a sentence stating:

There is a footnote referring generally to two witness statements, from Nick Beales of RAMFEL and from Radha Ruskin of Women’s Aid. (I have not in fact found any reference in those statements to the impact on children.) Para. 95 contains a proposition of law. Para. 96 makes the point that since the Secretary of State had never acknowledged “the problem identified in this claim” she cannot have had regard to it. Nothing is said which identifies the functions in the discharge of which the Secretary of State or civil servants in her Department were obliged to have regard to the best interests of children and/or guidance issued by her.

I need not review the Secretary of State’s Detailed Grounds of Defence because her grounds narrowed in the course of the hearing before Cavanagh J. At para. 248 of his judgment he recorded her position as follows:

The equivalent concession in relation to the PSED to which the Judge refers is at paras. 224-226 of the judgment. I need not set that passage out here, but it makes clear that the Secretary of State’s original argument that she was not exercising a function so as to engage the section 55 duty was based on the fact that section 3C operates automatically, i.e. without the need for a decision.

Although that concession involves an acceptance that the Secretary of State had “decid[ed] not to provide documentary proof to all those on section 3C leave”, nothing is said, and the Judge makes no finding, as to when, or by whom, that decision was taken. That reflects the fact that the issue giving rise to the concession did not concern those questions but rather the consequence of the fact that section 3C operated automatically.

Cavanagh J rejected Mr Malik’s case that the issue of Every Child Matters satisfied the section 55 (1) duty. He gave his reasons at paras. 249-250 of his judgment, which read:

There are essentially four elements in that reasoning:

I should say by way of preliminary that Mr Malik devoted only a comparatively small part of his oral submissions to ground 2, and Ms Harrison took the same approach in response. That no doubt reflected a recognition that this ground is inherently less significant than either of the substantive grounds. As we have seen, it was initially advanced by only one of the Claimants, and without much elaboration. Even if the Judge’s finding stands, the result will only be that the Secretary of State is obliged to undertake a section 55 exercise as regards her policy of introducing eVisas gradually, with no guarantee that that will lead to a change in the current timetable. In any event, whatever the reason, we did not have the opportunity to explore the issue in any depth in the course of the hearing.

Ground 2 of the grounds of appeal reads:

As developed in Mr Malik’s skeleton argument and oral submissions, the “misconstruction” relied on by the Secretary of State is that in para. 250 of his judgment Cavanagh J proceeded on the basis that the Secretary of State was herself under a duty to have regard to the best interests of children. In fact, he submitted. what the statute requires is that she should “make arrangements for ensuring that [her immigration functions] are discharged” having regard to that consideration. He submitted that she performed that duty by publishing Every Child Matters, whose avowed purpose is to ensure that decisions are made having regard to the best interests of children. He referred to para. 2.7 of Every Child Matters, which reads:

He submitted that the Judge was wrong to say that that guidance was only aimed at decision-making in individual cases and was not concerned with “the SSHD’s wider general functions”: on the contrary, it applied to policy decisions as well as to individual decisions. If particular policy decisions were indeed taken without regard to the best interests of children, they would be amenable to judicial review on that basis (that is, for breach of section 55 (3)), but the Secretary of State would not be in breach of her own duty under section 55 (1).

In his oral submissions Mr Malik made two further points.First, he submitted that the reasoning in para. 250 of the judgment was “entirely premised” on the Judge’s conclusion on the substantive challenge, so that if he succeeded on ground 1 he must succeed on ground 2 as well. Second, he submitted in his reply that the effect of the Judge’s decision was that the Secretary of State was under a duty continuously to review her existing policies to ensure that they complied with section 55 but that there was no such duty.

Ms Harrison in her submissions essentially supported the reasoning of the Judge. But, in response to the submission that the Secretary of State had satisfied the duty by giving the guidance in Every Child Matters , she emphasised that that went nowhere unless that guidance had in fact been followed when taking the impugned decision, and that the Judge had made an unchallenged finding that, contrary to the guidance, no consideration had been given to the impact of the decision on children. She did not respond to the two submissions noted at para. 89 above (though the second was advanced only in reply).

After careful consideration of this ground, the Court has concluded that it cannot properly determine it without further submissions. That is principally because in our view the decision of this Court in DM – handed down, as I say, after the hearing of the appeal – may have a significant bearing on the correct analysis of the issue. Although the particular issue in DM was different, the reasoning in my judgment (with which Newey and Lewis LJJ agreed) emphasises the need to identify with specificity the decision which attracts the operation of the section 55 duty (see in particular paras. 106-110); and the Court was sceptical of the submission that a challenge could be advanced simply on the basis of the continued operation of a system (see paras. 126-128) – a point which at least overlaps with the second of Mr Malik’s two submissions noted at para. 89 above. Identifying the relevant decision may be important to the analysis at various points, including of course to the question whether the application was made promptly. Most relevantly to the present case, it will establish whether the decision was taken by the Secretary of State herself, so as to fall under section 55 (1), or whether it was taken by “others”, so as to fall under section 55 (3): that would be material to the analysis of whether the Judge was right to find that the guidance in Every Child Matters had no application. It may also potentially be relevant to the question whether he was right to find that no consideration had been given to the impact of the decision on children.

In the Court’s view, if DM had been available to the parties at the time of the hearing before Cavanagh J there would have been a focus on identifying who took the impugned decision, and when, as the necessary starting-point of the analysis. As it was, the case simply proceeded on the conceded basis that the Secretary of State had “decided not to provide documentary proof to all those on section 3C leave”: as I say at para. 83 above, that concession was directed at a different issue.

Accordingly we invite submissions from both parties on when and by whom they say that the “decision not to provide documentary proof to all those on section 3C leave” was taken, and on any potential consequences of that submission (whether as noted in para. 91 above or otherwise). We appreciate that this is not (so far as we can see) a question directly addressed in the evidence, and the submissions should cover how we should deal with that omission. The Claimants are also invited to clarify whether their reference in the Claim Form to “ongoing” breaches means that they contend for multiple decisions, if so identifying them, or that they rely on the continuous operation of the policy of the gradual introduction of eVisas, if so addressing the reasoning in paras. 126-128 of DM.

I should make it clear that we are not to be taken as expressing even a provisional view that the outcome of this claim would have been different if DM had been available to the parties. But we do not believe that it is right that we should determine this appeal, on a point of public law that might arise in future cases, without hearing submissions on the implications of that decision.

Since further submissions will be required in any event, the Court also believes that we should take the opportunity to ask for submissions on three other points which have concerned us in the course of our deliberations but which were not, or not adequately, covered in the brief oral submissions.

First, unlike any of the other leading cases of which we are aware concerning section 55 of the 2009 Act, this is a case where the impugned policy is not concerned specifically with the position of children. Rather, what is said is that a policy (or one aspect of it) which in practice applies only to adults attracts the section 55 duty because it may have a knock-on effect on their dependent children. We would welcome submissions about whether that affects the analysis at any point.

Second, we would welcome assistance on Mr Malik’s submission that if he succeeded on ground 1 he must necessarily succeed on ground 2 (see para. 89 above). As a general proposition that seems hard to sustain, since it does not follow from a decision that the current timetable was not irrational that the Secretary of State should not have undertaken a section 55 exercise before deciding to adopt it. But it may be arguable that it follows from our particular reasoning at paras. 64-66 above that, on the evidence before the Court, the adoption of the current timetable was the only realistic approach, in which case it may be that we would be obliged to refuse relief under section 31 (2A) of the Senior Courts Act 1981. We would welcome clarification from Mr Malik as to the basis of his submission, to which Ms Harrison can respond.

Third, we would welcome any submissions about whether the fact that eVisas have now been available to all migrants with LLR for about a year is relevant to the question of relief.

Again, I should emphasise that we should not be taken to have reached even a provisional view on any of those questions.

I should also emphasise that the submissions are invited without prejudice to a contention by either party that any point raised in them was not advanced below. The Court will consider any such objection on its merits, though it will wish, so far as fairness permits and having regard to its powers as to costs, to decide an issue of this character on what appears to it to be the correct basis in law.

We think it appropriate that the submissions which we invite should initially be provided in writing and sequentially, with the Secretary of State going first. Subject to any contrary submissions from the parties, we will direct that the Secretary of State file her submissions by 4 pm on December 1 st and the Claimants by 4 pm on December 19 th . The Court will then decide whether it is necessary to hold a hearing, but in order to save unnecessary delay we will invite the parties to liaise with the List Office with a view to agreeing a provisional half-day hearing in January.

The consideration of ground 2 will accordingly be adjourned on that basis. The parties will no doubt wish to consider whether they can reach a compromise which will avoid their devoting further resources to a ground which for the reasons already given is not at the centre of the dispute.

I would allow the appeal on ground 1 and dismiss the Claimants’ cross-appeal. Ground 2 is adjourned for further submissions.

I agree.

I also agree.