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Home Secretary’s failure to provide digital proof of status to those with section 3C leave held to be unlawful

Two claimants, the charity Refugee and Migrant Forum of Essex and London “RAMFEL” and Ms Adjei, have succeeded in a judicial review where it was held that the Home Secretary’s failure to provide people on section 3C leave with digital evidence of their status was unlawful. The case is R (Refugee and Migrant Forum of Essex and London (RAMFEL) & Anor) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin).

Background

For those who don’t already know what section 3C leave here then our briefing is a good place to start. In short, it is leave granted under section 3C of the Immigration Act 1971 where a person has made an in-time application to extend their existing leave. This means that their leave does not expire and they continue to have the same rights while the Home Office is deciding the application and also while an appeal against a refusal is pending. The problem is the hostile environment and the difficulty in evidencing those ongoing rights and entitlements to third parties including employers and landlords.

With their grant of previous leave, a person will have had a biometric residence permit but this would show the expiry date of that leave and nothing further is issued by the Home Office to say that an in time application has been made and that the person’s leave is extended in the meantime. A person trying to prove their rights to a third party would need to ask that person to contact the Home Office to ask for confirmation. This causes delays and some decide that this is too much trouble to bother with.

Where a person holds digital status (eVisa), currently available only for certain routes, they can continue to generate a “share code” using the Home Office’s online check procedure. The code is then used by the employer for an instantaneous check which they can then use to protect against illegal working penalties. This process is also available to those who have current biometric residence permits but is not available to those on section 3C leave who are stuck with the longer and more onerous Employer Checking Service.  

In terms of the number of people affected, in March 2021 the Home Secretary responded to a freedom of information request made by RAMFEL and said that in 2019 there had been 370,015 people on section 3C leave. RAMFEL gave evidence that some of their clients were spending 18 months on section 3C leave (the delays often comprising a fee waiver and then the substantive immigration application). Those in the ten year route to settlement (for example as the parent of a British child) will have to rely on section 3C leave three to four times.

Section 3C leave and the hostile environment

Ms Adjei is one of those affected, as she had limited leave to remain based on being the parent of a British child and she is in the ten year route to settlement. Her most recent extension of leave came on 3 October 2022, after almost one year with section 3C leave. During this time, she was removed from the “bank” system which she had been working under as a healthcare support worker at Whittington Hospital. Her employer told her this was because her right to work had expired. With RAMFEL’s assistance she managed to convince them to make a request to the Employer Checking Service.

It took the Home Office two weeks to respond which meant Ms Adjei went nearly a month without pay. She struggled to feed her children and had to use a food bank as well as borrow money to pay the bills. After six months, the check expired and she was again blocked from work. Her employer had made a further request from the Employer Checking Service four days before expiry of the previous check, but there were delays at the Home Office’s end with the result that Ms Adjei went a further three weeks without pay. Evidence was provided that Ms Adjei’s situation was by no means unique.

A similar process for checking a person’s leave is in place for landlords conducting right to rent checks. The competitiveness of the rental market, particularly in London, is well known and a person who can only prove their right to rent in days will lose out.

Checks are also carried our for driving licences, bank accounts, Disclosure and Barring Service checks and NHS charging. The founder of We Belong, Chrisann Jarrett, gave evidence of her university not allowing her to graduate without current documentary proof of her immigration status. The university’s position eventually changed but not without causing a huge amount of stress. Women’s Aid provided evidence of women being refused access to refuges while on section 3C because of a concern that they are not entitled to public funds.

Perhaps most appalling is the difficulty people have experienced in continuing to access public funds while on section 3C leave. It is not unreasonable to expect that one government department might be able to communicate effectively with another to confirm these entitlements. Yet there are several examples in the judgment of where this was not the case, including a severely disabled woman who was left without her personal independence payment for five months.

RAMFEL also provided evidence of the various hardships caused to large numbers of people on section 3C leave (as also covered in their report “The Hostile Environment Remains in Place“).

eVisas

As we know, the Home Office is already moving people over to eVisas, with all biometric residence permits expiring at the end of this year. Evidence was given at the hearing that there are currently 89 categories of in-country applications and 23 of those currently offer eVisa options. Those without access to eVisas include those in the ten year route to settlement under Appendix FM, those with leave under the Destitute Domestic Violence Concession, those with refugee or humanitarian protection leave, bereaved relatives or private life claims. No evidence was provided as to what percentage of people currently on section 3C leave would be entitled to eVisas.

At paragraph 104 of the judgment it is recorded that the Home Secretary’s evidence is that the aim is that eVisas for everyone “will be implemented by the end of 2024, but there is no firm commitment that this will happen by then.” What will happen if (when?) that deadline is (inevitably?) missed does not bear thinking about (by me, the Home Office should very much be thinking about it).

Legal arguments and the court’s decision

The claimants in this case argued that the lack of evidence of section 3C leave places a barrier in the way of people’s ability to access public funds, medical treatment and other rights they are entitled to and the Home Secretary was in breach of his legal obligations in failing to provide this. It was argued that this failure frustrated the statutory objects of section 3C, that it was unreasonable, that there had been a failure to comply with the Public Sector Equality Duty and a breach of the duty in section 55 of the Borders Citizenship and Immigration Act 2009.

It was acknowledged on behalf of the Home Secretary that “there remains a risk that migrants with lawful status may still be adversely affected by the lack of documentary proof, but submitted that this does not render the system irrational or mean that the statutory purpose has been frustrated”. Practical issues were issues were raised with the production of a physical document to evidence section 3C leave, including the inability to provide an expiry as it is unknown how long the leave will last. The claimants pointed out that this is done in other routes, however they did not argue specifically in favour of a physical document over digital and it was “expressly accepted on behalf of the SSHD at the hearing that it would be possible for the SSHD to provide a digital record of those who have section 3C leave”.

It was agreed between the parties that the Home Secretary has the power, derived from the Immigration Act 1971, to issue a document (physical or digital) to those with section 3C leave.

The first ground of challenge was that Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 requires that the Home Secretary’s discretion as to how to give effect to the leave under section 3C must be exercised in a way which promotes and does not run counter to the policy objective of the legislation. The court rejected this ground on the basis that there was no statutory provision that gives the Home Secretary discretion to provide documentary evidence to those with section 3C leave.

The second ground, which the court considered with and as an alternative to the first, was that it was Wednesbury unreasonable to fail to provide documentary proof of section 3C leave for various reasons, including the serious harmful impact on those affected, combined with their inability to avoid the detriment caused to them by the hostile environment.

The court agreed with the reasons given by the claimants, saying that it was clear that a “substantial number” of people had been affected and suffered “real hardship through being unable to provide immediate documentary proof of their immigration status and attendant rights”. It held that the failure to provide digital evidence to those with section 3C leave was Wednesbury unreasonable. The same finding was not made in relation to the failure to provide a physical document.

In reaching the decision, the court applied the test from R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 as follows [at 214]:

(1) What are the disadvantages of deciding not to fine-tune the SSHD’s administrative practices by imposing a requirement to provide digital proof of immigration status to all those on section 3C leave? As described above, the disadvantages are grave for an unquantifiable but significant number of people, and the mitigating measures put in place by the SSHD do not operate so as prevent those grave problems from arising in those cases;

(2) What are the disadvantages of adopting the solution proposed by the Claimants? On the basis of the evidence, there are none. It has not been suggested that the solution would be impractical or costly. Indeed, it is already gradually being rolled out by the SSHD;

(3) Would the solution be consistent or inconsistent with the nature of the immigration regime? The solution would be consistent with the compliant environment regime, which is at the heart of the immigration regime, as it would mean that those who are lawfully present will not suffer the deterrents put in place for those who are unlawfully present, and it would not run the risk of making it easier for those who are unlawfully present to obtain access to employment, accommodation etc; and

(4) Can it be said that no reasonable SSHD would have struck the balance the way that the SSHD has done in this case? In my view, the answer is “yes”. There are very strong reasons in favour of giving digital proof of status to those with section 3C leave, and no good reasons that I have been able to identify for not doing so.

The court dismissed the Public Sector Equality Duty challenge on the grounds that the Compliant Environment Equality Impact Assessment “does just enough”.

The judicial review was also allowed on ground four which was that there had been a breach of the Home Secretary’s section 55 duty to have regard to the need to safeguard and promote the welfare of children in exercising immigration functions. The court found that there was “no evidence” that the Home Secretary had done this when considering whether to provide documentary evidence of status to people with section 3C leave and that there could be an adverse impact on children.

The court will in due course make order on the wording of the declaration and also on whether or not to grant a mandatory order requiring the Home Secretary to take reasonable steps to address the detriment suffered by people with section 3C leave as well as to comply with the section 55 duty.

Conclusion

The Home Secretary argued throughout that “the roll-out of eVisas for those on section 3C leave is being done without any admission that the SSHD is legally obliged to do so”. This case has established that the legal obligation does exist. The practical response here seems to be to put processes in place whereby those who do not yet have eVisas are immediately issued with them when applying for an extension of leave with an eVisa. A solution will also need to be found for the potentially hundreds of thousands of people who currently hold section 3C leave.

Of course none of this should be taken as any sort of endorsement of digital status which we know is problematic, with the3million having already spent years documenting problems experienced by EU citizens. It is difficult to see a future where digital status and the hostile environment will ever be compatible. I would suggest that the latter is dropped.

For more details of the cases, see RAMFEL and Bhatt Murphy’s press releases. Pre litigation research for this case was funded by the Strategic Legal Fund.

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Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

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