Section 3C leave challenge adjourned for further consideration of impact on children

The Home Secretary has partly succeeded in her appeal in a case concerning eVisas and section 3C leave, with the rest of the case being adjourned by the Court of Appeal so that the parties can make further submissions on the section 55 duty regarding the welfare of children. Our write up of the High Court’s decision is here. This case is R (Refugee and Migrant Forum of Essex and London & Anor) v Secretary of State for the Home Department [2025] EWCA Civ 1843.

Background

Section 3C leave is a type of leave held when a person has made an application to extend their leave, but this remains undecided at the point their previous grant of leave was due to expire. Under section 3C of the Immigration Act 1971 the leave is automatically extended until the Home Office has either granted further leave, or any appeal rights have been exhausted against a refusal.

Life has always been difficult for people holding section 3C because of the hostile environment which requires people to evidence their leave in various situations including to work and rent a home, as well as accessing the NHS, bank accounts, driving licence and student loans. Because there is no indication of how long the section 3C leave will last or whether the outstanding application will be granted, employers and landlords are very reluctant to take on anyone with this uncertain status.

The roll out of eVisas managed to make this situation worse, as the status checks available to most people with eVisas did not work for those with section 3C leave. RAMFEL and an individual claimant, Ms Adjei, brought a judicial review challenging the failure to provide people with section 3C leave with a form of documentation that would allow them to confirm their immigration status. Specifically, “a form of accessible digital documentation equivalent to the “eVisas” regime”.

The claimants succeeded on two of their grounds in the High Court which held that this failure was unlawful. The following declarations were made by the court:

1. The Defendant’s failure to provide a digital document proving the lawful immigration status and attendant legal rights to all those with leave extended under section 3C of the Immigration Act 1971 including the Second Claimant is unlawful because it is Wednesbury unreasonable, for the reasons given in the judgment.

2. In failing to provide the said digital document, the Defendant also acted unlawfully in breach of section 55 of the Borders Citizenship and Immigration Act 2009 and the duty to have due regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

The Home Secretary appealed and obtained a stay on the High Court’s judgment pending the appeal. The claimants were also granted permission to cross appeal on one of their grounds.

The Court of Appeal

The court first addressed two ground together, that “the failure to provide documentation which enabled migrants with section 3C leave to prove their immigration status was unlawful because it contravened the so-called Padfield principle and/or that it was “Wednesbury-unreasonable””.

On the Wednesbury point, the High Court had found it significant that eVisas were already being rolled out and concluded that this was evidence that they, or an equivalent digital proof, could be made available to everyone with section 3C leave. The court said that “no reason had been shown why he should not draw that conclusion”.

The Court of Appeal said that they did “not believe that that was a conclusion which the Judge was entitled to draw. There was explicit evidence that the Secretary of State had decided to introduce eVisas gradually”. The court reiterated that as this ground was based on irrationality, there was no requirement for justification by the Home Secretary and the burden of proving Wednesbury unreasonableness lay squarely on the claimants. The court said that no evidence had been provided by the claimants to support this position (obviously difficult given it was Home Office systems at issue here) and that “[i]n truth if the unreasonableness of the impugned policy is not obvious without detailed evidential support a rationality challenge is unlikely to prosper”.

The Home Secretary’s appeal on this ground was allowed.

The Padfield argument, which had not succeeded in the High Court, was that by failing to provide for those on section 3C to be able to immediately demonstrate their status, the Home Secretary had exercised her powers in a way that “thwarted the purpose of the immigration legislative regime as a whole”. The Court of Appeal dismissed this, agreeing with the reasons given by the High Court.

The final ground was the Home Secretary’s challenge to the High Court’s finding that there had been a breach of the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children in exercising immigration functions

It was argued on behalf of the Home Secretary that the statute only requires that the Home Secretary “should “make arrangements for ensuring that [her immigration functions] are discharged” having regard to that consideration” and that this duty had been fulfilled through publication of the Every Child Matters statutory guidance. The claimants responded that the submission “went nowhere unless that guidance had in fact been followed when taking the impugned decision, and that the Judge had made an unchallenged finding that, contrary to the guidance, no consideration had been given to the impact of the decision on children”.

The Court of Appeal decided to adjourn this ground and ask the parties to make further submissions. This is because, between hearing argument and handing down this judgment, the court had also decided R (DM) v Secretary of State for the Home Department [2025] EWCA Civ 1273 which they said “may have a significant bearing on the correct analysis of the issue”.

The court asked for further submissions from both parties on various points, in particular to identify when the impugned decision was made, and by whom. The court said this would be the starting point of the analysis, as in DM. 

Conclusion

In response to a Freedom of Information request, the Home Office said that in 2019 there were 370,015 people with this status. The Home Secretary’s proposals to increase the paths to settlement in both asylum and immigration routes will mean a dramatic increase in these figures, meaning a lot more people forced into precarious situations.

It is worth drawing attention to note 5 at the end of the judgment, which states, on the Court of Appeal’s use of the term “hostile environment”:

That was the label given to the regime by the Secretary of State when it was first introduced. There has latterly been a preference for the description “compliant environment”, and Cavanagh J uses that term in his judgment. I will continue to use the original label, mainly because “compliant environment” is bad English: it is migrants, not the environment itself, who it is intended should be “compliant”. But I also think that it gives a franker description of the purpose of the regime, which is, perfectly properly, to make life difficult for people who are in the UK illegally.

We shouldn’t let the Home Office try to whitewash what they are doing and how difficult they are deliberately making people’s lives, and so “hostile environment” it will remain.

Finally, I want to say that the individual claimant, Ms Adjei, is to be commended with her resolve in acting as one of the claimants in this case, it is no small thing to stand up to the Home Office on behalf of all migrants in this way.