Landmark judgment finds Home Secretary's decision not to provide documentary proof was irrational, unreasonable and caused real hardship to thousands
In a very significant judgment handed down on Friday, the High Court ruled that the Home Secretary acted unlawfully by failing to provide documentary proof of immigration status to thousands of migrants on so-called '3C leave'. Under section 3C of the Immigration Act 1971, a person who makes a valid application to extend their limited leave to remain in the UK has their leave extended while they are awaiting a decision on that application.
Image credit: WikipediaMembers of EIN can read the judgment in RAMFEL & Anor, R (on the application of) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin) here and non-members can access it here on the National Archives case law website.
The legal challenge was brought by the Refugee and Migrant Forum Of Essex and London (RAMFEL) together with a former client of RAMFEL. In the case, RAMFEL argued that the failure to provide people on 3C leave with documentary proof left potentially hundreds of thousands of migrants wrongly classified as lacking immigration status and trapped by the government's 'hostile environment' (or compliant environment) immigration policies.
Mr Justice Cavanagh ruled on Friday that the Secretary of State for the Home Department's (SSHD's) failure to provide proof of immigration status to all of those on section 3C leave was irrational and unreasonable in the sense set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. The lack of proof of status caused serious hardships for a significant number of migrants. Several hundred thousand people will have a period of section 3C leave each year, meaning many thousands will likely have suffered adverse consequences by not having proof of their status.
Mr Justice Cavanagh stated in the judgment: "In my judgment, the failure to provide digital evidence to all of those on section 3C leave is Wednesbury unreasonable, essentially for the reasons put forward by the Claimants. There are three key considerations, in my view.
"First, the evidence clearly establishes that a substantial number of those on section 3C leave suffer real hardship through being unable to provide immediate documentary proof of their immigration status and attendant rights. … Though it is not possible to work out the precise numbers of those who have been adversely affected, it is clear that it is a substantial number. … [L]arge numbers of those who on section 3C leave will need to provide proof of employment status or the right to accommodation, and it is inevitable that a sizeable minority will suffer real hardship from a delay of a few days or weeks arising from their inability to provide documentary proof of their immigration status. It is also inevitable that dependent children will suffer hardship in consequence."
Mr Justice Cavanagh continued: "Second, in my judgment it is clear that the legislative purpose, both of section 3C in isolation, and of the broader framework of immigration legislation, and in particular of the compliant environment system, includes that those who are lawfully present on s3C leave, and who have a right to work, rent accommodation etc, should be able immediately to demonstrate that they have such rights and entitlements."
Explaining the second consideration further, he noted: "The complaint environment policy is predicated upon the ability to distinguish between those who are lawfully present and documented, and those who are unlawfully present and so who cannot provide documentary proof of their right to be here and to work, rent accommodation etc. The underlying purpose of the legislative framework is that there should be a hostile and unwelcoming environment for those who are unlawfully present and so who are undocumented. The corollary of this is that those who are lawfully here should not face the hostile environment. That can only happen if they are documented. It is, in my judgment, irrational that the legislation, and specifically section 3C, is intended to protect the rights and entitlements of those with section 3C leave, but leaves them with no way themselves of demonstrating that they have such rights and entitlements."
The High Court found the failure to provide a digital means of immediately demonstrating the immigration status of a person on section 3C leave – when such means is readily available – frustrates the purpose both of section 3C itself and the broader framework of immigration legislation.
On the third, and "perhaps most significant point", Mr Justice Cavanagh said the Secretary of State had not provided any reasons as to why he should not take the "straightforward step" of providing people with documentary proof of their immigration status.
Mr Justice Cavanagh stated: "If there were countervailing considerations, that is, reasons why proof should not be supplied to those on section 3C leave, then it might very well be that it could not be said that it was Wednesbury unreasonable for the SSHD to decline to provide those on section 3C leave with such proof. It would be for the SSHD to balance the conflicting considerations and to decide how to proceed. This would be so, even if there were harsh consequences in some individual cases. …. In light of the evidence before me, therefore, there are, in my judgment, compelling reasons for the provision to those on section 3C leave of digital proof of their status, but the court has not been provided with any reasons, whether of a policy or practicality nature, why the SSHD should not do so. I fully accept that there is no requirement of perfection, but this is a case in which the SSHD can take a straightforward step to avoid hardship for a substantial number of people, with no negative consequences for the Home Office or for the immigration regime."
The judgment also ruled that the Home Secretary breached his duty under section 55 of the Borders Citizenship, Immigration Act 2009 by failing to consider the impact on children caused by the approach taken to 3C leave.
As RAMFEL noted in a press release, the Secretary of State is now compelled by the High Court to take positive steps to "provide all those on Section 3C leave with a means of proving their status".
Janet Farrell, a partner at Bhatt Murphy solicitors who represented the claimants in the case, said the judgment was a "significant victory" for all those on 3C leave left undocumented in an environment which demands proof of immigration status in order to access work, housing and healthcare or hold a driving licence or bank account.
RAMFEL's head of campaigning, Nick Beales, compared the lack of 3C leave documentation to the Windrush scandal. He commented: "Time and again, the government's hostile environment traps and targets people with every right to be in the UK. They assured us they had learned from the Windrush scandal, but these words were clearly hollow. People on 3C leave have had their lives disrupted for years because they have been unable to prove their immigration status. The government knew this, and in the court's view could easily fix it. That they refused to do so demonstrates that not only have they learned nothing from Windrush but have prioritised appearing tough over managing a fair and functional immigration system."
Beales urged the next government to end the hostile environment.