BSC & Anor, R (on the application of) v The Secretary of State for the Home Department

A statutory discretion to issue a biometric immigration document must be exercised where the applicable conditions are met, and cannot be abandoned by an inflexible rule adding conditions not found in the Regulations. However, the choice of format in which the document is issued is a separate mechanism. A policy adopting a digital-only format is therefore subject to rationality review, rather than the rule against fettering discretion. Rationality requires consideration of the system’s context, the scale and seriousness of hardship, available mitigation, and the range of reasonable administrative choices. The court dismissed the challenge because the digital policy was accompanied by genuine measures to correct errors and support affected users, and remained within the range of rational decisions open to the Secretary of State.

The claimants, both lawfully present in the United Kingdom, experienced prolonged errors or access problems with their eVisas. Those problems affected access to benefits, accommodation and employment opportunities. By the hearing, both claimants had accurate and accessible eVisas, but the claims continued because they raised issues of general importance.

They challenged the Secretary of State’s policy of issuing biometric immigration documents only through the eVisa system. Ground 1 alleged unlawful fettering of the discretion under regulations 13 and 13A of the Immigration (Biometric Registration) Regulations 2008. Ground 2 alleged that the policy was irrational because it made no provision for an alternative form of status confirmation in exceptional cases.

1. Ground 1 dismissed. Regulations 13(1) and 13A(1) confer the relevant discretion: where their preconditions are met, the Secretary of State must consider issuing a biometric immigration document. A person satisfying those preconditions has no automatic right to a document, but the Secretary of State cannot refuse to consider the application by imposing an additional criterion absent from the Regulations.
2. The rule against fettering discretion applies whether the power derives from primary or secondary legislation. Its substance is the prohibition on surrendering, abandoning or releasing a power which Parliament required the decision-maker to exercise. The question is therefore one of statutory context and reality, not a mechanistic classification of every statutory choice as an unfetterable discretion.
3. Regulations 13(1A) and 13A(1A) concern the manner or mechanism by which an issued biometric immigration document may be made available electronically. They do not create a separate discretion which must remain open to exceptional physical or alternative electronic forms. The choice of format is instead reviewable on ordinary public law grounds, including rationality. The legislative scheme remained compatible with physical documents, but did not make a digital-only system unlawful.
4. Ground 2 dismissed. The applicable Wednesbury test asks whether the policy was outside the range of reasonable decisions open to the decision-maker. The claimants bore the burden. The court considered the scale and seriousness of hardship, the inevitability of some system errors, the measures taken to correct and mitigate them, the practical difficulties of alternatives, and the fact that rationality does not require perfection.
5. The Secretary of State’s policy had high-level ministerial approval in substance, including through the command papers and the Carltona principle. The phrase digital by default could, in context, contemplate a digital-only system. The court did not decide whether interim relief could ever require a physical document, but confirmed that relief could require prompt access to an accurate eVisa or other available confirmation channels. The claim was dismissed.