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

This is a judicial review concerning the Secretary of State’s practice of not issuing documentary proof (hard copy or digital) to many persons whose limited leave to remain has been automatically extended by section 3C of the Immigration Act 1971. The court considered four grounds: (1) that the practice frustrates the statutory purpose (a Padfield-style challenge); (2) that the decision not to issue proof is irrational/Wednesbury unreasonable; (3) breach of the Public Sector Equality Duty (section 149 Equality Act 2010); and (4) breach of the section 55 duty (Borders, Citizenship and Immigration Act 2009) to have regard to the welfare of children.

The court held that the Secretary of State has ancillary administrative power to issue documentary proof (including digital eVisas) but that this is a broad administrative discretion subject to Wednesbury review. Applying that review the court concluded that the failure to provide digital proof to all persons on section 3C leave was Wednesbury unreasonable: a substantial number suffer real hardship, there is no adequate countervailing justification, and a practicable digital remedy already exists and is being rolled out. The court rejected the claim as a Padfield challenge in the strict sense but found that the statutory purpose of s.3C and the broader "compliant environment" regime supports the need for immediate proof of status. The PSED challenge succeeded only to the extent that the duty was engaged; the court concluded the published Equality Impact Assessment showed sufficient consideration (process) of equality matters and therefore did not find a breach of the PSED. The court found that section 55 had not been complied with in relation to the Secretary of State’s general arrangements and concluded there was a breach of s.55.

This judgment concerns two conjoined applications for judicial review brought by RAMFEL and an individual claimant challenging the Home Office practice of not issuing documentary proof to many people whose limited leave to remain was automatically extended by operation of statute under section 3C of the Immigration Act 1971. The principal consequences arose in the "compliant environment" regime where employers, landlords and public bodies require documentary proof (for example BRPs or eVisas) in order to obtain a statutory excuse from penalties or to permit access to services. The claimants sought declarations and mandatory relief requiring the Secretary of State to provide documentary proof, in particular digital proof, to all persons on section 3C leave.

Nature of the application: judicial review challenging administrative practice; relief sought included declaratory and mandatory orders requiring the SSHD to provide documentary proof (digital/hard copy) to those with s.3C leave and to remedy identified detriment.

Issues framed:

• whether the failure to provide documentary proof frustrates the statutory purpose of s.3C and the immigration scheme (Padfield argument);
• whether the practice is irrational or Wednesbury unreasonable;
• whether the Secretary of State breached the Public Sector Equality Duty (s.149 Equality Act 2010) in respect of undocumented persons on s.3C leave;
• whether the Secretary of State breached the duty under s.55 Borders, Citizenship and Immigration Act 2009 to have regard to the welfare of children when making arrangements affecting persons on s.3C leave.

Court’s reasoning and outcome on the issues:

• The court accepted that s.3C automatically extends leave and that the statutory purpose includes preservation of the bundle of entitlements (right to work, rent, benefits) during the extension. The Home Office possesses implied ancillary administrative powers to issue documentary proof (digital eVisas) as part of its immigration administrative infrastructure (New London College relied on).
• Padfield analysis was not appropriate in the strict sense because there is no specific statutory discretion in s.3C to exercise; the question was better characterised as Wednesbury unreasonableness of the Home Office’s administrative approach.
• Applying an appropriately deferential Wednesbury review in the complex immigration context, the court found the failure to provide digital proof to all persons on s.3C leave Wednesbury unreasonable. Key factors were: evidence of significant and recurring hardship for a substantial number of people; the central statutory purpose to preserve entitlements; the existence and practicability of a digital solution already being rolled out to some categories; and an absence of adequate countervailing reasons not to extend digital proof more widely.
• On the PSED (s.149 EA 2010) the Secretary of State accepted the duty applied. The court considered the Home Office’s published Equality Impact Assessments (the Compliant Environment EIA and the Digital Only EIA). Whilst the Complaint Environment EIA did not expressly detail s.3C in granular terms, on balance the court considered it showed sufficient consideration of the equality implications for the purposes of the procedural PSED (the duty is procedural not outcome-focused) and did not find a breach.
• On s.55 BCIA 2009 the court concluded the Secretary of State had failed to make arrangements having regard to the welfare of children in the context of the general policy of withholding documentary proof for some on s.3C leave and found a breach of s.55.

Relief and next steps: the court granted declarations in favour of the claimants on irrationality (Wednesbury) and breach of s.55. Counsel were invited to agree the declaration wording and to make submissions on whether mandatory relief should be granted; the court noted the Home Office’s intention to roll out digital status to all relevant categories by end 2024 but held that declaratory relief was not otiose.

The claim is allowed in part. The court held that the Secretary of State has ancillary administrative power to issue documentary proof but that his failure to provide digital proof to all persons on section 3C leave was Wednesbury unreasonable (irrational) because it causes substantial hardship, undermines the statutory purpose of section 3C given the compliant environment regime, and there is a practicable digital remedy being implemented. The Padfield principle was not applicable in the narrow sense; the PSED (s.149 EA 2010) was engaged and the published EIAs showed sufficient procedural regard so no breach of the PSED was made out; the Secretary of State breached section 55 BCIA 2009 by failing to make arrangements having regard to the welfare of children in respect of this general policy. Declarations were granted on the Wednesbury and s.55 grounds and counsel were invited to agree terms of declarations and to make submissions on mandatory relief.