Secretary of State succeeds in section 3C leave documentation challenge
Court of Appeal overturns finding that failure to provide eVisas was Wednesbury unreasonable
The Court of Appeal has allowed the Secretary of State's appeal against a High Court decision that found her failure to provide digital documentation to migrants with section 3C leave was unlawfully unreasonable. In R (Refugee and Migrant Forum of Essex and London) v Secretary of State for the Home Department [2025] EWCA Civ 1843, Sir Nicholas Underhill, giving the lead judgement with which Elisabeth Laing and Baker LJJ agreed, held that the staged rollout of eVisas did not meet the threshold for Wednesbury unreasonableness.
The challenge arose from difficulties faced by migrants whose limited leave to remain had expired pending determination of their application for further leave. Section 3C of the Immigration Act 1971 automatically extends such leave, but unlike primary leave documented by biometric residence permits or eVisas, section 3C leave operates by law without formal notification. This created problems under the hostile environment regime, where employers, landlords, and public bodies require immediate proof of immigration status.
Cavanagh J had identified three key considerations supporting a finding of irrationality: substantial evidence of hardship suffered by those unable to prove status immediately; that the legislative purpose of section 3C and the compliant environment system contemplated immediate demonstrability; and crucially, that the Secretary of State had adduced no evidence of impracticality or expense preventing immediate provision of eVisas to all section 3C holders.
The Court of Appeal disagreed with this analysis. On the evidence of hardship, Sir Nicholas accepted it was substantial but noted uncertainty about the scale relative to the total cohort of section 3C migrants, many of whom would not need to prove status or would find the Employer and Landlord Checking Services adequate.
On legislative purpose, the Court held there was no basis to infer Parliament intended immediate demonstrability when enacting section 3C in 1999 or the hostile environment measures in 2014, as digital systems enabling this were not then available or contemplated. The natural understanding was that documentation methods would be left to the Secretary of State's discretion.
Most significantly, the Court found the Judge had erred in concluding no evidence explained why eVisas could not be provided forthwith. Mr Wright's evidence explicitly stated changes could not be retrospectively applied to all current section 3C holders. The Secretary of State had announced a staged rollout between January 2023 and December 2024, with eVisas issued only upon grants of further leave, not during currency of existing leave. The Court emphasised that in an irrationality challenge, the burden lay squarely on the claimants to prove the timetable was unreasonable, which they had not discharged.
The Court also rejected the Padfield ground of challenge, agreeing with Cavanagh J that this principle, which prevents exercise of statutory powers contrary to their purpose, did not extend to the Secretary of State's ancillary administrative functions. Unlike cases where specific statutory discretions were exercised contrary to their purpose, there was no statutory provision conferring power to provide documentation, only implied administrative powers.
The section 55 ground concerning duties toward children's welfare was adjourned for further submissions, particularly in light of the recent decision in R (DM) v Secretary of State for the Home Department [2025] EWCA Civ 1273, which emphasised the need to identify with specificity which decision attracts the statutory duty.
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