Refugee and Migrant Forum of Essex and London & Anor v The Secretary of State for the Home Department

Section 55 of the Borders, Citizenship and Immigration Act 2009 imposes a process duty. A claimant must identify the decision or exercise of functions said to attract the duty. Relief for breach ordinarily addresses the defective decision-making process; it does not dictate the substantive outcome. Failure to plead the impugned decision is not invariably fatal, particularly where the decision cannot readily be identified. It may nevertheless justify allowing an appeal where the omission causes real prejudice, including by depriving the defendant of the opportunity to adduce evidence on causation, statutory no-relief provisions or discretionary relief.

The respondents challenged the Secretary of State’s arrangements for providing digital evidence of immigration status to migrants whose leave was extended under section 3C of the Immigration Act 1971. The High Court declared that the failure to provide such documentation to all persons on section 3C leave breached section 55 of the Borders, Citizenship and Immigration Act 2009.

On appeal, the Secretary of State contended that the claim had not identified the decision attracting the section 55 duty, and that fuller pleading would have enabled reliance on prejudice, causation and discretionary relief. The central issue was whether the High Court’s declaration could stand or should be replaced by relief directed to a procedurally unlawful decision.

1. Appeal allowed on ground 2. The High Court’s declaration was defective because it treated the breach of section 55 as the failure to provide digital documentation, a substantive outcome, rather than a failure to have regard to children’s welfare in the process of making an identified decision. Section 55 is a process duty. Appropriate relief would ordinarily quash the decision or declare it unlawful, leaving the decision-maker to decide the matter afresh without predetermining the result.
2. The analytical starting point in a section 55 claim is identification of the decision or exercise of immigration functions which attracts the duty. The respondents’ primary case concerned a decision not to make digital documentation available to persons already on section 3C leave. Their pleading did not identify that decision, and the High Court decided the claim on a basis that had not been pleaded.
3. The pleading defect caused real prejudice. If the decision had been identified, the Secretary of State might have adduced fuller evidence relevant to section 31(2A) of the Senior Courts Act 1981 and to refusal of relief in the court’s discretion. The available evidence made it unlikely that a compliant process would have produced immediate eVisas for all persons on section 3C leave, given the mitigation measures and the practical difficulty of a large-scale roll-out. The respondents’ alternative prioritisation case might also have been addressed differently.
4. The decision was confined to the circumstances of the appeal. Failure to identify the impugned decision is not always fatal where there are genuine difficulties about what was decided, by whom or when, or where the omission causes no real problem. It justified allowing the appeal here because the Secretary of State had been materially prejudiced.

• Court of Appeal (Civil Division) ([2026] EWCA Civ 86): appeal allowed on ground 2. The declaration made below was defective and was not replaced by an order requiring the Secretary of State to re-take the decision.
• High Court, King’s Bench Division, Administrative Court ([2024] EWHC 1374 (Admin)): declared that the failure to provide digital documentation to persons on section 3C leave breached section 55 of the Borders, Citizenship and Immigration Act 2009.