Refugee and Migrant Forum of Essex and London (RAMFEL) & Anor, R (on the application of) v Secretary of State for the Home Department

Section 3C of the Immigration Act 1971 preserves both lawful residence and the associated rights and entitlements enjoyed during the preceding limited leave. Where the immigration system depends on documentary verification, lawful migrants must be able to demonstrate those rights effectively.

The Secretary of State had an implied ancillary power to provide digital proof of section 3C status. Refusing to provide such proof to all section 3C migrants was Wednesbury unreasonable because it caused significant hardship, had no identified practical or financial justification, and undermined the statutory scheme. The Public Sector Equality Duty was complied with, but the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 was breached.

These were two conjoined judicial review claims brought by RAMFEL and Cecilia Adjei against the Secretary of State for the Home Department. The claims concerned migrants whose limited leave to remain was automatically extended under section 3C of the Immigration Act 1971 while an extension application, appeal or review remained unresolved.

Many such migrants had no biometric residence permit, eVisa or other document enabling them to prove their continuing entitlement to work, rent accommodation, receive benefits, obtain healthcare or access student finance. The issues were whether the failure to provide documentary proof was unlawful under the Padfield principle or irrational, whether the Public Sector Equality Duty had been complied with, and whether the Secretary of State had complied with section 55 of the Borders, Citizenship and Immigration Act 2009.

Claims succeeded in part. Grounds 2 and 4 succeeded. Grounds 1 and 3 failed.

1. Power to provide proof. The powers conferred by the Immigration Act 1971 included an implied ancillary and administrative power to provide documentary evidence of immigration status. New London College v Secretary of State for the Home Department [2013] UKSC 51 supported that conclusion. The power extended to digital evidence of section 3C leave and was not displaced by section 5 of the UK Borders Act 2007.
2. Grounds 1 and 2. The challenge was properly characterised as one of Wednesbury unreasonableness, rather than a Padfield challenge. There was no specific statutory discretion to issue documents. Nevertheless, the court had to consider the purposes of section 3C, the wider immigration legislation and the compliant environment scheme.
3. Section 3C was intended to preserve the applicant’s position and associated rights on the same terms as the preceding limited leave. The absence of immediate documentary proof exposed a substantial number of lawful migrants, and their children, to serious hardship. Alternative checking systems did not remove the risk.
4. The failure to provide digital proof was irrational. There was no evidence of practical or financial disadvantage to the Secretary of State, and digital proof was consistent with the immigration regime and was already being rolled out. The position concerning hard-copy documents was different: uncertainty about the end of section 3C leave meant that refusing physical documents was not irrational.
5. Ground 3. The ancillary immigration functions engaged the Public Sector Equality Duty. The Compliant Environment Equality Impact Assessment sufficiently showed due regard, although it did not examine section 3C in detail. The duty concerned process, not the achievement of a particular outcome.
6. Ground 4. Section 55 applied to the Secretary of State’s general ancillary immigration functions. No consideration had been given to the adverse effect of undocumented section 3C status on children. General guidance directed to individual caseworkers did not discharge that wider duty.
7. Declaratory relief was just and convenient. The parties were invited to agree its terms. The court reserved the question whether mandatory orders should be made.

Not stated in the judgment.