High Court: Failure to Provide Proof of Section 3C Status Unlawful

In a judgment handed down on 07 June 2024, the High Court in R (on the application of Refugee and Migrant Forum of Essex and London and Cecilia Adjei) v Secretary of State for the Home Department, [2024] EWHC 1374 (Admin) ruled that the Home Secretary’s failure to provide documentary proof of their lawful presence in the UK to thousands of migrants covered by section 3C of the Immigration Act 1971 was unlawful. This article will set out the background to the challenge, why the Claimants succeeded, and what significance the judgment holds as the Home Office prepares to transition all migrants in the UK to a system of digital only proof of status. 

Background 

Section 3C of the Immigration Act 1971 protects the position of migrants in the UK who have made a valid application to extend their stay (known as a variation application) before the expiry date of their current permission but whose application is not decided by the Home Office before that date. While the applicant waits to receive a decision, their existing permission (with all attached conditions, e.g. regarding study or work) is extended by virtue of section 3C, which can also continue their permission after a refusal in the period in which an appeal or administrative review could be brought /requested or is in fact pending.

At issue in this judicial review (brought by the charity RAMFEL, the Refugee and Migrant Forum of Essex and London, and Cecilia Adjei, a Ghanaian national who had previously relied on s 3C leave) was the Home Office’s failure to provide individuals with documentary proof of their lawful presence in the UK during periods in which their leave is extended by section 3C. Any physical proof of status they may have held (such as a Biometric Residence Permit) will show the expiry date of their original permission. While a portion of migrants in the UK are covered by ‘eVisas’, which they can continue to rely on during periods in which their permission is extended by virtue of s 3C (and the Home Office is in the process of transitioning all migrants to such digital-only proof of status), many are not. 

Those unable to prove their status in the UK may be caught by the government’s ‘hostile environment’ policies (now officially referred to as the ‘compliant environment’), which impose obligations on employers, landlords, the National Health Service, and others to verify the immigration status of those they come in contact with. 

If a person whose leave has been extended by section 3C is unable to prove their immigration status, they face the risk of wrongful exclusion from many essential services and facilities, including accommodation, employment, and free healthcare. The number of individuals potentially affected by this issue is significant. In response to a Freedom of Information request submitted by RAMFEL, the Home Office confirmed that in 2019, 370,015 people were on 3C leave. 

The Challenge 

There is no express legislative provision which would require the Home Secretary to issue proof of status to those in the 3C cohort. However, the Claimants contended that the Home Office policy was unlawful on four grounds:

1. The Home Office’s position frustrated the statutory purpose of section 3C and the compliant environment (following the line of cases beginning with Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997)
2. Additionally or alternatively, the Home Office’s approach was irrational (in the sense of the decision in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223)
3. The Home Office failed to comply with the public sector equality duty in section 149 Equality Act 2010 
4. The Home Office failed to comply with his obligations under s 55 Borders, Citizenship and Immigration Act 2009. 

The High Court (Mr Justice Cavanagh) agreed with the Claimants on the second and fourth grounds of challenge and found the failure to provide digital proof of status to the 3C cohort (the possibility of issuing physical documents was disregarded as being impractical) unlawful on that basis. 

The Padfield and Wednesbury Grounds

Cavanagh J considered the first two grounds and concluded that the challenge was best understood as going to the (Wednesbury) reasonableness of the Home Office’s position, rather than being based on the principle in Padfield. The Padfield line of cases always concerned a power or discretion expressly conferred by statute, often as part of a specific, statutorily defined scheme. By contrast, in the present case, the parties came to agree that the power to issue the documentation in question was not expressly provided for by statute but impliedly derived from the Home Secretary’s powers under the 1971 Act. As such, the Padfield analysis – considering the statutory source of the power or discretion to assess whether public authority’s exercise/non-exercise frustrates the purpose of the statute – could not be carried out. In any case, the applicable principles in either type of challenge had ‘similarities and echoes of each other’. 

The judge recalled that it was well-established that claimants mounting a rationality challenge faced a ‘high hurdle’ and listed aspects of the instant case which should give the court additional pause before interfering with the Home Secretary’s decision: the ‘respect’ to be afforded to his decision-making in the field of immigration and the complexity of the area, the nature of the power or discretion in question, and the fact that the claimants were looking to impose on the Home Office a duty to take positive action. 

However, the judge found that the claimants had overcome this (heightened) hurdle, for three main reasons. Firstly, the evidence made clear that a ‘substantial number’ of those on 3C leave suffered serious adverse consequences from their inability to provide immediate documentary proof of their right to be in the UK. 

Secondly, the court found that it was the clear purpose of section 3C, the broader immigration system, and the compliant environment policy that those lawfully in the UK should be able to prove the lawfulness of their presence, and the entitlements (access to employment, accommodation etc) linked to their status. The failure to provide such proof frustrated this purpose.

Thirdly, ‘and perhaps most significant[ly]’, there were no countervailing considerations. At least as far as digital proof was concerned, the Home Secretary could not point to any disadvantages which would result from making it available. Doing so would not run counter to government policy, nor was this a case in which the harsh consequences of a policy for affected individuals were justified by the need to establish bright-line rules. In short, no reasonable Home Secretary could have come to the decision under challenge. 

The Public Sector Equality Duty 

The third ground of challenge related to the public sector equality duty (PSED), enshrined in s 149 of the Equality Act 2010. This statutory duty requires all public authorities to have ‘due regard’, in the exercise of their functions, to the need to eliminate discrimination, further equality of opportunity, and foster good relations between communities. 

The Secretary of State, having initially suggested that the duty was not engaged at all, accepted that it was in play at hearing, and argued it had been discharged through two equality impact assessments (EIAs) prepared by the department – an ‘overarching’ assessment of the ‘compliant environment’, from November 2022, and an EIA concerning the implications of introducing digital-only proof of status, dated October 2021. The court’s analysis focused on the compliant environment EIA. 

The Judge made clear that he found the issue of compliance with the PSED to be complex. While the compliant environment EIA was ‘impressive, thorough and detailed, it also, for the most part, assumed that it would be clear whether a migrant was in the UK lawfully or unlawfully, thereby glossing over the position of those on 3C leave – who are lawfully present, but may struggle to prove it. 

Ultimately, he concluded that the Home Secretary had done just enough to discharge the duty, as a portion of the EIA described the risk of ‘unintended consequences’ of the compliant environment for those lawfully in the UK, and the need for the Home Office to put in place ‘safeguards’ to mitigate those consequences. Even though this part of the EIA went into ‘very little detail’, and even though the Home Secretary had initially argued that the PSED was not engaged at all, the Home Secretary had met his obligations under the 2010 Act. 

In coming to this conclusion, the judge reminded himself that the PSED was about process, not outcome, and that it was in the first instance for the Home Secretary to decide what the PSED required, particularly in light of the ‘enormously complex’ nature of the SSHD’s functions in relation to immigration. 

The Section 55 Duty

The final ground of challenge was based on the Home Secretary’s duty under s 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to promote and safeguard the welfare of children in the United Kingdom in the exercise of his immigration, nationality and asylum functions. Once again, the Home Secretary initially resisted the applicability of duty before conceding it was in play. 

The court found a breach of the s 55 duty – the Home Secretary had previously taken the position that it did not apply at all, the failure to provide proof of status to migrants on s 3C leave could indeed have an adverse impact on children (whether as applicants in their own right or as dependants of adults on 3C leave), and the Home Secretary had not considered the matter. 

This finding could not be avoided by pointing to (as the Home Secretary had attempted) the statutory guidance on section 55 produced by the Home Office, which was addressed to officials and contractors making decisions in individual cases, whereas the breach here related to a more general exercise of the SSHD’s functions in relation to immigration.

Conclusion

Finally, the judge considered whether he should exercise his discretion and decline to grant the claimants the declaration they had sought (in addition to other remedies), in light of the fact that the Home Office is already moving towards a digital-only system of proving immigration status anyway. The judge found no reasons why he ought to refuse to grant declaratory relief, noting that the Home Secretary’s intentions may change, or the planned timescale ‘slip’. 

Whatever form the relief ultimately takes, it is notable that the Home Secretary has been found to have acted unlawfully in respect of an issue which, as the judge recorded, had been repeatedly brought to the government’s attention over the years. 

Furthermore, while the transition to digital-only proof of status may render the outcome of this litigation of mainly historic interest, the upcoming change comes with its own risks. In a recent open letter, the Immigration Law Practitioners Association (ILPA) and others warn that the absence of a transitional phase after the Home Office’s self-imposed deadline of 31 December 2024 could produce a cliff edge which may ‘result in a second scandal, akin to Windrush, insofar as people will be unable to prove and enforce their ability to enter the UK, as well as live, work, and rent in it.’ They further highlight the risk of technical errors or glitches, and the limited public awareness of the upcoming changes, as matters of concern. 

After over a decade of the hostile/compliant environment, the ‘unintended consequences’ for those who struggle to prove their immigration status in the UK remain a matter of real concern.   

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