Home Office must consider whether to exercise discretion in Windrush cases

The requirements for remaining in the UK under the Windrush scheme are outlined in the Home Office’s casework guidance. For the child of a Commonwealth citizen who was settled in the UK before 1 January 1971 the guidance requires that the applicant has been continuously resident in the UK since their birth or arrival.

The appellant in Hippolyte v Secretary of State for the Home Department [2025] EWCA Civ 1493 could not meet this requirement. It was argued that it ought to be open to her to seek to persuade the Home Office to nonetheless grant her indefinite leave to remain due to her strong and subsisting ties with the UK (the continuous residence requirement being a proxy for demonstrating such ties). The appellant argued that, by failing to do so, the Home Office had fettered its discretion.

This non-fettering principle was expressed as follows in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12:

A policy may lawfully be devised for the purpose of dealing generally with a regularly occurring species of case but it must always be possible to depart from the policy if the circumstances of an individual case warrant it. (at [245])

The Home Office must be willing to make exceptions to the policy. Section 3(1)(b) of the Immigration Act 1971 confers a wide discretion on the Home Office to grant leave even where the requirements of the immigration rules or published policy guidance are not met.

The Home Office argued that, as no valid application under the Home Office’s policy guidance on leave outside the rules (“the LOTR guidance”) had been made, it was not required to consider whether to make an exception to the requirements of the Windrush scheme.

The Court of Appeal rejected this argument, noting that an application under the Windrush scheme was itself an application for leave outside the rules:

Contrary to Mr Brown’s [Counsel for the Home Office] submission, it is clear that this document [the LOTR guidance], despite its title, which is apparently general, is not the only document which concerns Leave outside the Immigration Rules. A pertinent example in the present context is the Windrush Scheme itself, which operates entirely outside those rules. That Scheme, in a document dated 24 January 2022, states that an application under the Windrush Scheme must be made on the relevant form, which is either the “Windrush Scheme Application (UK)” for applicants living in the UK, or the “Windrush Scheme Application (Overseas)” for applicants living outside the UK. That document also makes it clear that there is no fee for an application under the Windrush Scheme

On page 3 of the LOTR guidance, it is said that the circumstances in which someone may be granted LOTR are covered either by that guidance or separate guidance relating to the ECHR Article 3 Medical, Discretionary Leave, “or where there is an existing published concession.” In my view, that last phrase is apt to include the Windrush Scheme, which is a published concession outside the rules. (at [55] and [56])

The court held that the leave outside the rules guidance does not set out the only reasons for granting leave outside the rules:

Under the non-fettering principle, there can be no factors that the Secretary of State can close her ears to. That principle requires that she must at least be willing to consider whatever it is that an applicant wishes to say to her. (at [59])

In recent years the Home Office have placed a great deal of emphasis on application processes: using a specified form, paying a fee, providing biometrics, and providing specified documents. Where a person’s circumstances do not fit neatly into these rigid and inflexible application processes, it can often feel like they create a barrier to having the case considered by a Home Office case worker. It is therefore refreshing to see the Court of Appeal remind the Home Office of the importance of flexibility:

Although the Respondent is entitled to have a policy on how an application for the exercise of discretion should be made, that policy itself cannot be rigid and inflexible. Otherwise that would itself offend against the non-fettering principle of public law. This would have the potential to cause real injustice in practice… it is important that the general discretion which Parliament has conferred on the Respondent should be capable of being exercised in a holistic way, having regard to all the circumstances of an individual applicant. In a case like the present there is a real human being who applies for the exercise of discretion. Undue insistence on particular forms having to be filled in carries with it the risk that sight will be lost of the holistic approach to all the circumstances of a particular individual (at [62] and [64]).

This passage may be useful for applicants who are struggling to find the right application form to fit their particular circumstances.

The Court of Appeal held that the Home Office had failed to consider exercising the discretion which Parliament had conferred on it and quashed the decision refusing to grant leave under the Windrush scheme.

This does not necessarily mean that the appellant can expect her application to be successful. However, the Court of Appeal was not satisfied that it was “highly likely” that the outcome would not have been substantially different if the Home Office had considered exercising its discretion (as the High Court below had held). As such, the Court of Appeal overturned the High Court’s decision that section 31(2A) of the Senior Courts Act 1981 applied.