Hippolyte, R (on the application of) v Secretary of State for the Home Department

A residual statutory discretion to grant immigration leave outside the Immigration Rules cannot be fettered by a published policy. A policy may guide recurring cases and prescribe an application route, but it must be applied flexibly. The decision-maker must remain willing to consider an individual request, in its full circumstances, even when the prescribed form or policy criteria are not met.

Under section 31(2A) of the Senior Courts Act 1981, a court should not predict the merits of a decision that was never lawfully made. Where the error is failure to exercise discretion, the normal course is to quash and remit.

The appellant applied for indefinite leave to remain under the Windrush Scheme. Her application was refused because she had not been continuously resident in the UK since arriving in 2000. The High Court held that the Secretary of State had unlawfully failed to consider exercising the residual discretion under section 3(1)(b) of the Immigration Act 1971, but refused relief under section 31(2A) of the Senior Courts Act 1981, finding that the outcome was highly likely to have been the same.

The appeal concerned whether the High Court had impermissibly predicted the exercise of discretion, whether the application had to be made through a particular leave-outside-the-rules form, and whether the appellant’s ties to the UK and the absence of historical injustice made a different outcome highly unlikely.

1. Appeal allowed. Singh LJ, with Lady Justice Andrews and Sir Andrew McFarlane P agreeing, held that the High Court correctly identified a failure to exercise the residual discretion but erred in refusing relief. The Secretary of State’s statement that discretion was inappropriate because mandatory Windrush requirements were unmet showed that the discretion had not been exercised.
2. The Immigration Act 1971 confers a broad residual power to grant limited or indefinite leave outside the Immigration Rules. R (Munir) [2012] UKSC 32 and R (Alvi) [2012] UKSC 33 establish the distinction between statutory Immigration Rules and policies operating outside them. The non-fettering principle, explained in R (Lumba) [2011] UKSC 12, R (West Berkshire DC) [2016] EWCA Civ 441 and R (AB) [2018] EWCA Civ 383, requires the authority to remain willing to consider an individual case. A prescribed form may regulate applications, but cannot become a rigid precondition. Consideration must be holistic.
3. The Windrush Scheme did not require proof of historical injustice. The continuous-residence requirement was a proxy for ties to the UK, so the appellant’s argument that her strong and subsisting ties placed her within the spirit of the Scheme required consideration. Patel [2013] UKSC 72 did not prevent that analysis: its no-near-miss principle concerned Article 8, which is not a general dispensing power, and did not displace the separate residual discretion.
4. Section 31(2A) requires refusal of relief only where it is highly likely that the outcome would not have been substantially different. Applying R (Plan B Earth) [2020] EWCA Civ 214, R (Bradbury) [2025] EWCA Civ 489 and R (Greenfields (IOW) Ltd) [2025] EWCA Civ 488, the court must assess the effect of the error on the decision-making process, not predict the merits. That caution is especially important where no discretion was exercised at all. The absence of evidence explaining what the Secretary of State would have decided meant that the statutory threshold was not met.
5. The additional correspondence did not establish that the outcome would probably have been unchanged. The duty of candour and cooperation is continuing, but the fresh evidence was doubtful under the principles relied on from Ladd v Marshall [1954] 1 WLR 1489 and did not cure the fundamental error. The matter required lawful reconsideration without pre-judging the merits.

1. Court of Appeal (Civil Division) — Allowed the appeal. The High Court’s refusal of relief under section 31(2A) was set aside and the matter required lawful reconsideration.
2. High Court of Justice, King’s Bench Division, Administrative Court — Sheldon J held that the Secretary of State had unlawfully failed to consider exercising discretion under section 3(1)(b) of the Immigration Act 1971, but refused relief under section 31(2A) of the Senior Courts Act 1981: [2024] EWHC 2968 (Admin).