Hippolyte, R (on the application of) v Secretary of State for the Home Department [2025] EWCA Civ 1493

[2025] EWCA Civ 1493

Case No CA-2024-002897

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2024] EWHC 2968 (Admin)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Sheldon

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21 November 2025

Before

SIR ANDREW McFARLANE

President of the Family Division

LORD JUSTICE SINGH

LADY JUSTICE ANDREWS

Between

THE KING (on the application of HIPPOLYTE)Claimant/

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant/Respondent

Chris Buttler KC and Grace Brown (instructed by Leigh Day) for Appellant

Edward Brown KC (instructed by the Treasury Solicitor) for Respondent

Hearing Hearing date: 15 October 2025

Approved Judgment

This judgment was handed down remotely at 10 a.m. on 21 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

Introduction

[1]The Appellant, Jeanell Hippolyte, applied for indefinite leave to remain (“ILR”) in the United Kingdom (“UK”) under the Windrush Scheme but her application was refused by the Respondent, the Secretary of State for the Home Department. Her claim for judicial review of that refusal was dismissed by Sheldon J in a judgment dated 20 November 2024.

[2]The Judge accepted that the Respondent had failed to consider whether to exercise her discretion under section 3(1)(b) of the Immigration Act 1971 (“the 1971 Act”) to waive the continuous residence requirement in the Windrush Scheme and that this was unlawful because it contravened the “non-fettering” principle of public law. However, applying section 31(2A) of the Senior Courts Act 1981 (“the 1981 Act”), the Judge refused relief on the basis that it was highly likely that the outcome for the Appellant would not have been substantially different had the conduct complained of not occurred. The Appellant now appeals to this Court with the permission of the single judge.

[3]In an email dated 7 October 2025, the Appellant’s representatives requested that an anonymity order made by the Administrative Court with respect to the identities of the Appellant’s two children should be continued in this Court. This Court granted that application subject to any representations that might be made but there has been no objection to the continuation of anonymity. It is plainly necessary to protect the interests of children in this case and does not prejudice the ability of anyone to understand and follow the issues in the appeal. Factual background The Windrush Scheme

Factual background

[4]Following the Windrush scandal, the Windrush Scheme was set up in 2018 to help Commonwealth citizens who arrived in the UK many years ago to access documents confirming their immigration status or citizenship. The Scheme also applies to some children of Commonwealth citizens. There is no fee for an application under the Windrush Scheme.

[5]The Respondent published a policy document (“the Windrush Scheme policy”), explaining how applications under the Windrush Scheme would be considered. This lists different ways in which the Respondent will seek to assist applicants depending on their circumstances, with options including giving them documents to confirm their existing status, considering them for naturalisation or ILR, or considering them for other specified visa routes (for example, a returning resident visa or visit visa).

[6]The Windrush Scheme policy sets out four categories of applicant. The Appellant’s father fell within category 1. Persons falling within this category are: a person in the UK who, as a Commonwealth citizen, was either settled in the UK before 1 January 1973 and has been continuously resident in the UK since their arrival, or has the right of abode.

[7]The Appellant applied under category 4 of the Scheme. Persons falling within this category are:(1) A person in the UK,

(2) who is a child of a Commonwealth citizen parent,

(3) where the child was born in the UK or arrived in the UK before the age of 18,

(4) and has been continuously resident in the UK since their birth or arrival,

(5) and the parent was settled before 1 January 1973 or has the right of abode (or met these criteria but is now a British citizen).

[8]The Appellant satisfied most of those criteria but did not meet the continuous residence requirement, that is criterion (4).

The Appellant’s immigration history

[9]The Appellant’s father, Cletus Hippolyte, was born on 13 July 1936 in St Lucia. He arrived in the UK in 1956.

[10]The Appellant was born on 19 November 1982 in St Lucia.She arrived in the UK in August 2000, aged 17, as a visitor. She travelled to the UK with her mother, Sonia Hippolyte. Whilst in the UK, she studied for a certificate in business administration. The Appellant states that she did not know that her father had ILR and that she could apply for ILR as his child. She applied for leave to remain in the UK as a student prior to the expiry of her leave as a visitor. Her student visa application was outstanding for some timeand was granted on 23 August 2002, with leave valid until 30 September 2002.

[11]In a letter from the Home Office dated 2 September 2002, the Appellant was informed that “under the Immigration Rules, your stay in the United Kingdom as a student will give you no claim to remain in the United Kingdom when your studies are completed”. The Appellant’s case was that she wanted to stay in the UK but understood from this letter that she had no right to do so. At the end of her studies, the Appellant left the UK and returned to St Lucia.

[12]The Appellant subsequently made two unsuccessful applications to return to the UK. On 23 February 2006, the Appellant applied for entry clearance as her parents’ dependant. Her mother applied for entry clearance as her father’s spouse at the same timeand was granted leave to remain in the UK in 2006. The Appellant’s application was refused. The Appellant appealed but then withdrew the appeal. On 11 August 2008, the Appellant applied for a working holiday visa, which was refused.

[13]On 26 March 2013, the Appellant entered the UK with leave as a visitor, valid until 27 September 2013. Between 2013 and 2020, she travelled back and forth between the UK and St Lucia. From 2014, there was a period during which she stayed in the UK for approximately 18 months to 2 years. The Appellant has two sons, who were both born in the UK.They are not, however, British citizens.

[14]The Appellant has lived in the UK continuously since August 2020. She lives with her two sons, one of whom has been diagnosed with attention deficit hyperactivity disorder (“ADHD”).

[15]The Appellant’s father was granted British citizenship under the Windrush Scheme on 19 July 2018. Following a visit to St Lucia in 2019, the Appellant’s father disappeared and is presumed deceased.

[16]The Appellant has seven siblings (including half-siblings) living in the UK, all of whom have British citizenship. Two of the Appellants’ brothers, Danny and Denzel, came to the UK as minors and made immigration applications both as minors and as adults that were refused. They remained in the UK without leave but were subsequently granted ILR and naturalised under the Windrush Scheme.

[17]The Appellant has made two applications for ILR under the Windrush Scheme, both of which were refused. The decision under challenge in the present judicial review proceedings is the second refusal.

[18]The Appellant made her first application for ILR under the Windrush Scheme on 28 August 2020. This application was refused on 23 February 2021. The Appellant was deemed to be ineligible under the Scheme because she had not been continuously resident in the UK since her arrival in August 2000. Supported by Bishop Desmond Jaddoo of the National Windrush Organisation,the Appellant sought a review of that decision but the refusal was upheld.

[19]The Appellant made a further application for ILR under the Windrush Scheme on 2 December 2022, supported by a letter from her legal representatives dated 28 November 2022. This was refused on 19 January 2023. A review was requested but was refused on 20 April 2023. It is that decision which is the subject of the present proceedings.

The judgment of the High Court

[20]In the High Court, there were two grounds of challenge:(1) No consideration had been given to whether any discretion should be exercised in the Appellant’s case.

(2) The Appellant was discriminated against contrary to

Article 14 of the European Convention on Human Rights

, read with Article 8. The present appeal arises from the Judge’s decision on the first of those grounds only. The second ground is not a live issue on this appeal.

[21]Before the Judge it was accepted on behalf of the Secretary of State that the pre-action correspondence could be taken into account in order to assess whether the Respondent had failed to consider whether any discretion should be exercised in the Appellant’s case. The Judge concluded that, on a fair reading of that correspondence, no consideration had been given by the Secretary of State as to whether to exercise her discretion to waive the continuous residence rule: see para 34. The Judge set out his reasons in detail at paras 35-49, analysing the correspondence closely. He concluded, at para 50, that the Secretary of State had acted unlawfully in failing to consider whether to exercise her discretion under section 3(1)(b) of the 1971 Act.

[22]The Judge went on, however, to accept the submission made on behalf of the Secretary of State that relief should be refused under section 31(2A) of the 1981 Act. The Judge acknowledged, at para 52, that there was no witness statement from an official in the Home Office setting out what the decision would have been. Nevertheless, he said, there was much material available to the Court from which inferences could be drawn as to what the decision was highly likely to have been if the Secretary of State had considered whether discretion should be exercised to disapply the continuous residence rule.

[23]At para 53,

the Judge set out the four points which were advanced on behalf of the Appellant as follows:

“The points made by the Claimant in the pre-action letter of 16 May 2023 as to why discretion should be exercised in her favour were: (i) the Claimant only left the United Kingdom due to Home Office enforcement action, which was unlawful in the circumstances, as she had ‘entitlement to a grant of indefinite leave to remain in 2000’; (ii) there are historic and historical injustices in her claim; (iii) the Claimant has ‘strong ties to the UK and … there are compelling compassionate circumstances in her case’ which include her son’s diagnosis of ADHD; (iv) under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State must act in the children’s best interests which must be a ‘primary consideration’. It is clearly in her children’s best interests for the Claimant to be granted Indefinite Leave to Remain.” (i) the Claimant only left the United Kingdom due to Home Office enforcement action, which was unlawful in the circumstances, as she had ‘entitlement to a grant of indefinite leave to remain in 2000’; (ii) there are historic and historical injustices in her claim; (iii) the Claimant has ‘strong ties to the UK and … there are compelling compassionate circumstances in her case’ which include her son’s diagnosis of ADHD; (iv) under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State must act in the children’s best interests which must be a ‘primary consideration’. It is clearly in her children’s best interests for the Claimant to be granted Indefinite Leave to Remain.”

[24]The Judge addressed the first two of those arguments at paras 54-59 and paras 60-62. He concluded that they would not have provided a basis for the exercise of discretion in the Appellant’s favour and that was a conclusion which the Secretary of State was highly likely to have reached. Before this Court Mr Chris Buttler KC, who appeared with Ms Grace Brown for the Appellant, did not seek to question the Judge’s analysis of those two points but he does challenge the way in which he dealt with the other two points.

[25]At para 63, the Judge acknowledged that points (iii) and (iv) had not been specifically addressed in the Respondent’s letter of 25 May 2023 (which was written in reply to the letter before claim of 16 May 2023). Nevertheless, he concluded that it was highly likely that, had they been considered, they would not have led to the disapplication or waiver of the continuous residence rule under the Windrush Scheme and so the same decision would have been reached.

[26]The key part of the Judge’s reasoning can be seen at para 64:

“The Secretary of State would have been highly likely to decide that, although the Claimant was a child of a member of the Windrush generation, her claim was not really equivalent to a Windrush scheme claim, as she (and her father, Cletus Hippolyte) had not suffered a historic injustice. The Secretary of State would have been highly likely to decide that there was no reason therefore for the Secretary of State to make an exception to the Windrush scheme in the Claimant’s case, and that the points made by the Claimant at (iii) and (iv) should be made by her, if she wished, as part of an application made under Appendix FM to the Immigration Rules: a detailed policy promulgated by the Secretary of State for considering applications under the ‘Family Policy: Family life (as a partner or parent) and exceptional circumstances’. The points made by the Claimant at (iii) and (iv) are typical of the representations made by applicants under Appendix FM, and there is nothing to preclude the Claimant from making such an application if she wishes to do so.”

[27]Mr Buttler submits that the last part of that passage is simply wrong, since the Appellant cannot make an application under Appendix FM, which concerns applications for leave as the partner of a person who is a British citizen in the UK or a person who is present and settled in the UK; has a British citizen child; or falls into one of the other specific categories expressly set out in Appendix FM. I did not understand Mr Edward Brown KC, who appeared before this Court for the Respondent, to contend that the Appellant could make an application under Appendix FM.

[28]It is also worth noting that, in a different section of the judgment, which addressed the human rights issue which is no longer a live issue before this Court, at para 72,

the Judge said that:

“The continuous residence rule is a proxy for demonstrating whether an applicant has strong and subsisting ties with the United Kingdom.”

[29]Mr Buttler relies on this to argue that it should be open to the Appellant to seek to persuade the Respondent to exercise her discretion even though she does not meet the continuous residence criterion because she can show strong and subsisting ties with the UK in other ways. In this context Mr Buttler also draws attention to the fact that the Home Office guidance issued to caseworkers considering cases under the Windrush Scheme itself refers to a person’s strength of ties to the UK (including family ties, property ties and business ties): see version 5.0, published on 24 January 2022, at pages 32 and 34.

Grounds of appeal

[30]There are two grounds of appeal:(1) There was no evidential basis for concluding that the Secretary of State would have been “highly likely” to conclude that the strength of the Appellant’s ties to the UK would only be considered as part of an application under Appendix FM to the Immigration Rules. In speculating as to how the Secretary of State might have exercised her discretion, the Court strayed into the “forbidden territory” of second-guessing the exercise of discretion with which the Secretary of State alone is charged.

(2) The Judge was wrong to conclude that an absence of “historical injustice” made it highly likely that the Secretary of State would refuse to exercise her discretion in the Appellant’s favour.

[31]Mr Buttler submits that the existence or absence of historical injustice is irrelevant to whether the Secretary of State would have exercised her discretion to disapply the continuous residence rule because(1) historical injustice is not a requirement for a grant of ILR under the Windrush Scheme and

(2) the Appellant’s case is that the continuous residence criterion should be disapplied because she meets the substance of that criterion, having strong and subsisting ties to the UK in other ways, and historical injustice is not relevant to that question.

Respondent’s notice

[32]The Respondent’s Notice sets out three different or additional reasons for upholding the Judge’s decision:(1) The Appellant ought to have made a formal application for exercise of discretion, in accordance with the Respondent’s published guidance on applying for leave outside the immigration rules (“LOTR”). This should have been done by applying on the application form that most closely matches her circumstances (i.e. the Appendix FM form). The Appellant did not do so and hence the Respondent was not obliged to treat her as having applied for the exercise of discretion.

(2) Further or alternatively, the letter before claim of 16 May 2023 relied on was not a valid request for discretionary LOTR. The Respondent was entitled to proceed on the basis that no such request had been made.

(3) Further or alternatively, the correct conclusion on the evidence was that the Respondent did consider what discretion to exercise and concluded that the circumstances did not justify anything other than application of the published terms of the Windrush Scheme (which itself is an exercise of discretion outside the rules).

[33]Mr Brown submits that, in the interests of administrative efficiency and clear and consistent decision-making, there is a requirement that requests for the exercise of discretion should be made following the LOTR policy.

The Immigration Act 1971 and the non-fettering principle

[34]So far as material, section 3(1) of the 1971 Act provides that, except as otherwise provided by or under that Act, where a person is not a British citizen(a) he shall not enter the UK unless given leave to do so in accordance with the provisions of, or made under, that Act;

(b) he may be given leave to enter the UK (or, when already there, leave to remain in the UK) either for a limited or indefinite period.

[35]Section 3(2) of the 1971 Act requires the Secretary of State to lay before Parliament statements of the rules, laid down by him as to the practice to be followed in the administration of that Act for regulating the entry into and stay in the UK of persons required by the Act to have leave to enter. This “statement” has come to be known as “the Immigration Rules” or simply “the Rules”.

[36]Section 3(2) further provides that, if a statement laid before either House of Parliament is disapproved by a resolution of that House passed within the period of 40 days beginning with the date of laying, the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of 40 days beginning with the date of the resolution.

[37]In R (Munir) v Secretary of State for the Home Department

[2012] UKSC 32

;

[2012] 1 WLR 2192

, at para 44, Lord Dyson JSC said that it is the 1971 Act itself which is the source of the Secretary of State’s power to grant leave to enter or remain outside the Immigration Rules. The Secretary of State is given “a wide discretion” under sections 3, 3A, 3B and 3C to control the grant and refusal of leave to enter or to remain. Lord Dyson said:

“The language of these provisions, especially section 3(1)(b)(c), could not be wider. They provide clearly and without qualification that, where a person is not a British citizen, he may be given leave to enter or limited or indefinite leave to remain in the United Kingdom. They authorise the Secretary of State to grant leave to enter or remain even when leave would not be given under the Immigration Rules.”

[38]At para 45, Lord Dyson explained the circumstances in which a concessionary policy statement has to be laid before Parliament because in truth it amounts to a rule “as to the practice to be followed” within the meaning of section 3(2) of the 1971 Act. But if the statement says only that a rule “may” be relaxed if certain conditions are satisfied, but that whether it will be relaxed will depend on all the circumstances of the case, then it does not fall within the scope of section 3(2): such a statement does no more than say when a rule or statutory provision may be relaxed.

[39]In his conclusion at para 46, Lord Dyson said that “subject to the constraints to which I have referred and any relevant public law principles, the Secretary of State is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the United Kingdom.”

[40]It is important to emphasise in that passage the constraint of “any relevant public law principles”: those principles would for present purposes include the non-fettering principle.

[41]In R (Alvi) v Secretary of State for the Home Department

[2012] UKSC 33

;

[2012] 1 WLR 2208

, the Supreme Court confirmed that, where codes contain material which is not just guidance but any requirement which, if not satisfied, will lead to an application for leave to enter or remain being refused, they are in truth rules within the meaning of section 3(2) of the 1971 Act: see para 57 (Lord Hope DPSC) and para 94 (Lord Dyson JSC). As Lord Dyson put it at para 94:

“That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined.”

[42]Mr Buttler submits, and I did not understand this to be contested by Mr Brown, that there are certain requirements which can only be set out in the Immigration Rules, in accordance with the decisions of the Supreme Court in Munir and Alvi. This has the important consequence that they have to be laid in draft before Parliament, which has opportunity to reject them if it wishes to do so. These requirements do not, however, apply to policies made by the Respondent outside the terms of the Immigration Rules.

[43]The non-fettering principle was expressed as follows by Lord Kerr JSC in R (Lumba) v Secretary of State for the Home Department

[2011] UKSC 12

;

[2012] 1 AC 245

, at para 245:

“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. As the author of Wade and Forsyth on Administrative Law, 10th edition (2009), pages 270-271 states: ‘It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each one must be considered on its own merits and decided as the public interest requires at the time.’” ‘It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each one must be considered on its own merits and decided as the public interest requires at the time.’”

[44]In R (West Berkshire DC) v Secretary of State for Communities and Local Government

[2016] EWCA Civ 441

;

[2016] 1 WLR 3923

, this Court (Laws and Treacy LJJ) made it clear that the non-fettering principle does not require that a policy cannot be expressed in unqualified terms. What matters is not so much the wording as the substance, whether in reality the decision-maker is prepared to consider making an exception to what otherwise appears to be an unqualified policy: see paras 16-17. The Court cited with approval the following passage in de Smith’s Judicial Review, 7th edition (2013), at para 9-013:

“The proof of the fettering will be in the willingness to entertain exceptions to the policy, rather than in the words of the policy itself.”

[45]Mr Buttler drew our attention to the judgment of Julian Knowles J in R (KA) v Secretary of State for the Home Department

[2022] EWHC 2473 (Admin)

;

[2023] 1 WLR 896

, where it appears that counsel for the Secretary of State was willing to make a concession during the hearing that, if the claimants made an application for entry clearance without biometrics (which was required by the policy in question), it would not be rejected automatically but would be considered on its merits (including whether to waive or defer the biometrics requirement): see para 90. Mr Buttler submits that this is consistent with the non-fettering principle and inconsistent with the way in which submissions have been presented on behalf of the Respondent in the present appeal. In other words, he submits, it is open to the Respondent to entertain a request that she should consider exercising her discretion outside the Rules, irrespective of the form of that request.

[46]In R (AB) v Secretary of State for the Home Department

[2018] EWCA Civ 383

, at paras 44-45, Leggatt LJ summarised the non-fettering principle, with particular reference to the immigration law context, as follows: “44. A public authority which has a discretionary power may adopt a policy or rule to regulate the exercise of the power and indeed, if it fails to act consistently with its rule or policy, its decision may be open to public law challenge by a person adversely affected. At the same time the principle against fettering discretion requires decision-makers not to shut their ears to claims falling outside the policies they have adopted: see Ali (Iraq) v Secretary of State for the Home Department

[2016] UKSC 60

[2016] 1 WLR 4799

, para 15. The leading authority is British Oxygen Co Ltd v Minister of Technology

[1971] AC 610

. In that case the Board of Trade had a discretionary power to make grants for capital expenditure, but it adopted a policy not to make a grant for any item costing less than £25. British Oxygen had purchased a very large number of gas cylinders which cost over £4 million in total but only about £20 each. In accordance with its policy, the Board declined to make a grant. Lord Reid identified the general rule as being that ‘anyone who has to exercise a statutory discretion must not “shut his ears to an application”’ and ‘refuse to listen at all’ but must be ‘always willing to listen to anyone with something new to say’. As the Board had ‘carefully considered’ all that British Oxygen had said and had done nothing to suggest that it would not continue to do so in future, it had acted lawfully. 45. The nature of the Immigration Rules has recently been analysed by the Supreme Court in Ali (Iraq) v Secretary of State for the Home Department

[2016] UKSC 60

[2016] 1 WLR 4799

. Lord Reed (giving the judgment of the Court) noted at para 17 that the Immigration Rules are not law but a statement of the Secretary of State’s administrative practice. But he also said: ‘Nevertheless, they give effect to the policy of the Secretary of State, who has been entrusted by Parliament with responsibility for immigration control and is accountable to Parliament for her discharge of her responsibilities in this vital area. Furthermore, they are laid before Parliament, may be the subject of debate, and can be disapproved under the negative resolution procedure. They are therefore made in the exercise of powers which have been democratically conferred, and are subject, albeit to a limited extent, to democratic procedures of accountability.’ It is in the light of these features that the Court of Appeal in R (Sayaniya) v Upper Tribunal

[2016] EWCA Civ 85

[2016] 4 WLR 58

, paras 21-35, held that the Immigration Rules are not themselves subject to the ‘non-fettering’ principle and that, where the Rules are expressed in mandatory terms, they are not, for that reason, ultra vires nor to be read as operating other than in a mandatory manner. At the same time, the Court of Appeal recognised that the Rules do not restrict the exercise of the Secretary of State’s discretionary powers in that she always has a residual discretion to consider an application made outside the Rules by someone who does not qualify under them: ibid at paras 39-41. As is implicit in the Court of Appeal’s decision, the exercise of this residual discretion is subject to the ‘non-fettering’ principle.” ‘Nevertheless, they give effect to the policy of the Secretary of State, who has been entrusted by Parliament with responsibility for immigration control and is accountable to Parliament for her discharge of her responsibilities in this vital area. Furthermore, they are laid before Parliament, may be the subject of debate, and can be disapproved under the negative resolution procedure. They are therefore made in the exercise of powers which have been democratically conferred, and are subject, albeit to a limited extent, to democratic procedures of accountability.’

Analysis: the Respondent’s Notice

[47]I will address the points advanced in the Respondent’s Notice first, since they logically come before the grounds of appeal advanced on behalf of the Appellant. I will, however, address the points made in the Respondent’s Notice in a different order, as it seems to me that grounds (2) and (3) need to be cleared out of the way first, before turning to the Respondent’s main point, which is in ground (1).

Grounds (2) and (3) in the Respondent’s Notice

[48]The Respondent argues that the Judge was wrong to conclude that there had been a failure to exercise her discretion by the Respondent. It is still accepted on behalf of the Secretary of State that it is permissible to look at the Respondent’s letter dated 25 May 2023, in response to the letter before claim of 16 May 2023, in order to address this question. It is therefore necessary to consider the correspondence from 2023.

[49]In the letter of 20 April 2023 it was said by the Respondent that none of the pieces of new evidence which had been submitted on the Appellant’s behalf by her solicitors, asking for a review of the earlier decision of 19 January 2023, changed the original decision to refuse her Windrush Scheme application “because none of the points you have raised demonstrate that you meet the requirements of the Scheme.” The letter also said that:

“Your Windrush application was refused on the basis that as you had left the UK between 2003 and 2006 … you had not been continuously resident in the UK since you arrived aged 17. This is still considered to be the case.”

[50]In other words, at that stage it was simply being said that the Appellant did not meet the criteria in the Windrush Scheme and so her application was being refused for that reason. That did not show a willingness to consider exercising the Secretary of State’s residual discretion in section 3(1)(b) of the 1971 Act. That point was made on the Appellant’s behalf in the letter before claim of 16 May 2023. In the High Court it was accepted on behalf of the Respondent that the letter before claim did invite her to consider exercising her discretion but, before this Court, it is contended that was wrong. In my judgment, on a fair reading of the letter before claim it was plainly right. I would therefore reject ground (2) in the Respondent’s Notice.

[51]In the reply dated 25 May 2023, the Respondent said:

“Throughout your PAP letter you refer to the SSHD’s ability to apply discretion to applications and question why this was not utilised in your client’s case.”

After setting out the relevant requirements of the Windrush Scheme, the letter continued:

“The introduction of the Windrush Scheme in 2018 represented a conscious choice to ensure that a specific cohort of people (i.e. individuals who have continuously lived in the UK since arriving as children, and who remain in the UK lawfully but who have never settled) could more easily acquire ILR.”

After then setting out a passage from the decision of 20 April 2023, the letter continued:

“The decision letter also lists the representations made by your client that were taken into consideration on pages 1-2. Therefore, your client’s representations were acknowledged and considered however, discretion was not considered appropriate to apply as mandatory requirements have not been met.” (Emphasis added)

[52]In my judgment, the Judge was plainly right to reach the conclusion that the Respondent had failed to consider exercising her residual discretion: see in particular the passage I have emphasised, where the Respondent’s letter says that “discretion was not considered appropriate to apply as mandatory requirements have not been met.” The word “as” in that passage was clearly being used in a causal sense, i.e. the reason why the discretion was not considered appropriate was because the Appellant did not meet the mandatory criteria in the Windrush Scheme. That was not to exercise the Respondent’s discretion but rather was a failure to exercise it. I would therefore reject ground (3) in the Respondent’s Notice.

Ground (1) in the Respondent’s Notice

[53]I turn to the main point which the Respondent advances in the Respondent’s Notice, which is that the application was made using the wrong form. The Respondent submits that she is entitled to insist upon a particular form being used if an application is to be made for her to exercise her discretion outside the rules or outside the terms of any policy, under section 3(1)(b) of the 1971 Act. Mr Brown submits that the closest form would be that for an application under Appendix FM to the Immigration Rules. Even if that is wrong, he submits that the appropriate form, in accordance with published policy, would be Form SET(O).

[54]The policy on Leave outside the Immigration Rules (“LOTR”), version 2.0, was published for Home Office staff on 9 March 2022. On its title page it says that it is “Guidance for decision-makers considering Leave outside the Immigration Rules, on the basis of compelling compassionate grounds (grounds that are not related to family and private life, medical or protection matters)”.

[55]Contrary to Mr Brown’s submission, it is clear that this document, 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.

[56]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.

[57]At page 5, the LOTR guidance correctly states that: “The Immigration Rules are designed to provide for the vast majority of those wishing to enter or remain in the UK however, the Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under the Immigration Act 1971.” [sic]

[58]Mr Brown is entitled to place reliance on passages in the guidance which make it clear that a grant of LOTR should be rare and that considerations of whether to grant LOTR should not undermine the objectives of the rules or “create a parallel regime for those who do not meet them.” This merely serves to underline the point that the Appellant, if the Respondent had acted lawfully by considering whether to exercise her discretion outside the Rules, cannot necessarily expect that her application will be successful.

[59]I do not, however, accept that the only reasons for granting LOTR are those set out at page 6 of the LOTR guidance, that is where there are compelling compassionate factors, which are broadly speaking “exceptional circumstances which mean that a refusal of entry clearance or leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of

ECHR Article 8

, Refugee Convention or obligations.” 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.

[60]At pages 9-10 of the LOTR guidance, under the heading ‘Process’ and in particular under the heading ‘Applying in the UK for LOTR’ it is stated that:

“Applicants in the UK must apply on the application form for the route which most closely matches their circumstances and pay the relevant fees and charges.”

Later the guidance continues:

“If an applicant in the UK wishes to be considered solely outside the Immigration Rules, they should apply using the Further Leave (Human Rights Other) (FLR(HRO)) application form or Further Leave (Immigration Rules) (FLR(IR)) form.”

Still further on, the guidance states:

“If an applicant in the UK wishes to be considered for a grant of indefinite leave to remain (ILR) outside the Immigration Rules, they should apply on form SET(O) and pay the relevant fees and charges. Applications for ILR are not covered by the fee waiver policy.”

[61]I accept Mr Buttler’s submission that the Appellant in the present case did make an application on the application form for the route “which most closely matches their circumstances”, i.e. the Windrush Scheme application form. The reason why she did not pay any fee in so doing was that the Windrush Scheme does not require a fee to be paid. As Mr Buttler points out, Appendix FM would be of no assistance to this Appellant, because she does not come close to satisfying its requirements, whether in relation to her spouse or partner or her children.

[62]I do not accept the breadth of Mr Brown’s submissions. 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.

[63]To take a hypothetical example, suppose a public authority had an absolute and inflexible policy that it would accept an application for the exercise of its discretion only if the application is made online. A person who does not have access to a computer, or perhaps has temporary difficulties in accessing the internet for reasons beyond their control, may be unable to comply with that procedural requirement and may write a letter to the public authority asking for their case to be considered under a general discretionary power even though it is not in compliance with any particular rule or policy adopted by that authority.

[64]Furthermore, in my view, 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 and focus will be given instead to particular aspects of their situation, for example by asking whether they are close to a family reunion case or close to a Windrush case.

[65]For the sake of completeness I should mention that the Respondent places some reliance on Patel v Secretary of State for the Home Department

[2013] UKSC 72

;

[2014] AC 651

, arguing that there is no “near miss” principle in immigration law. Since the Appellant does not meet the conditions in the Windrush Scheme, it is submitted that the only basis on which she might be entitled to leave is by way of discretionary LOTR and the means of applying for that in the present case is the LOTR Policy.

[66]I would accept that there is no “near miss” principle in immigration law, as Lord Carnwath JSC explained in Patel, at para 56, but it is important to place this in its proper context. As Lord Carnwath explained at para 57 of Patel, that was in the context of

Article 8 of the ECHR

and “Article 8 is not a general dispensing power.” Nevertheless he went on to say that:

“It is to be distinguished from the Secretary of State’s discretion to allow leave to remain outside the Rules, which may be unrelated to any protected human right.”

[67]In the present case, what the Appellant relies on is the well-known principle of non-fettering in public law. She does not submit, nor does she need to, that she should be granted ILR because of a “near miss” and she only just failed to qualify under the Windrush Scheme. Her submission is simply that the Secretary of State was required at least to consider exercising a discretion outside the rules in her case and failed to do so, as the Judge held.

[68]Accordingly, I would reject the submissions advanced by Mr Brown under the Respondent’s Notice. Before I turn to the Appellant’s grounds of appeal I will set out section 31(2A) of the 1981 Act and what this Court has said about it.

The Senior Courts Act 1981

[69]Section 31(2A) of the 1981 Act, as inserted by the Criminal

Justice and Courts Act 2015, provides that:

“The High Court – (a) must refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

[70]Section 31(2A) of the 1981 Act was considered by this Court (Sir Keith Lindblom SPT, Singh LJ and Haddon-Cave LJ) in R (Plan B Earth) v Secretary of State for Transport

[2020] EWCA Civ 214

;

[2020] PTSR 1446

. At paras 267-273, the Court made the following observations:(1) It has long been established that, in a claim for judicial review, the court has a discretion whether to grant any remedy even if a ground of challenge succeeds on its substance.

(2) In Simplex GE (Holdings) Ltd v Secretary of State for the Environment

[2017] PTSR 1041

, at 1060 (1988), it was established that it is not necessary for the claimant to show that a public authority would (or even probably would) have come to a different conclusion. What had to be excluded was only the contrary contention, namely that the Minister “necessarily” would still have made the same decision. Accordingly, the Simplex test required that, before a court may exercise its discretion to refuse relief, it must be satisfied that the outcome would inevitably have been the same even if the public law error identified by the court had not occurred.

(3) The Simplex text has been modified by amendments made to section 31 of the Senior Courts Act by section 84 of the Criminal Justice and Courts Act 2015 in respect of claims for judicial review filed since 13 April 2015. The new statutory test modifies the Simplex test in three ways. First, the matter is not simply one of discretion, but rather becomes one of duty provided the statutory criteria are satisfied. This is subject to a discretion vested in the court nevertheless to grant a remedy on grounds of “exceptional public interest”. Secondly, the outcome does not inevitably have to be the same; it will suffice if it is merely “highly likely”. And thirdly, it does not have to be shown that the outcome would have been exactly the same; it will suffice that it is highly likely that the outcome would not have been “substantially different” for the claimant.

[71]At para 273, the Court gave the following guidance:

“It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is ‘highly likely’ that the outcome would not have been ‘substantially different’ if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, ‘the threshold remains a high one’ (see the judgment of Sales LJ, as he then was, in R (Public and Commercial Services Union) v Minister for the Cabinet Office [2018] ICR 269, para 89).” (Emphasis added)

[72]In R (Bradbury) v Brecon Beacons National Park Authority

[2025] EWCA Civ 489

;

[2025] 4 WLR 58

the Court returned to section 31(2A) at paras 70-75. Although this judgment was given after Sheldon J’s judgment in the present case, I do not consider that, as a matter of substance, anything said in Bradbury is different from what had already been said in earlier decisions of this Court, in particular Plan B Earth. In Bradbury Lewis LJ said that the court is concerned with evaluating the significance of the error on the decision-making process. At para 71, he said:

“It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied.”

[73]At para 74, Lewis LJ said the test is “a high test to surmount.” He continued that:

“The section emphatically does not require the court to embark upon an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.”

[74]More recently Lewis LJ made similar points in R (Greenfields (IOW) Ltd) v Isle of Wight Council

[2025] EWCA Civ 488

;

[2025] 2 P&CR 16

, at paras 72-74. In a concurring judgment, Singh LJ added, by reference to the well-known duty of candour and cooperation which falls upon public authorities in judicial review proceedings, that if reliance is to be place on section 31(2A), the court should be given a full, accurate and clear explanation of the decision-making process used by the public authority (in proper evidence, i.e. in a witness statement). The court should not have to depend on submission by advocates nor should it have to piece together a number of different documents in order to understand what happened: see paras 102-106.

Analysis: the grounds of appeal

[75]I would accept Mr Buttler’s fundamental submission, that the Judge was wrong to refuse relief in this case in reliance upon section 31(2A) of the 1981 Act. In my judgment, even if subconsciously, the Judge did fall into the error which this Court has on a number of occasions warned against: he strayed into the “forbidden territory” of seeking to assess the merits of the Respondent’s exercise of discretion.

[76]Particularly in a case where the very legal wrong which the court has held occurred is a failure to exercise a discretion at all (as distinct from, for example, a failure to take into account a relevant consideration where the discretion has undoubtedly been exercised), it seems to me that a court should be especially careful not to try to step into the shoes of the relevant public authority. The normal course will be for the court to quash the decision and remit the matter to the public authority to determine for itself. In that way the court maintains the important constitutional principle that the court does not assess the merits of a decision; it simply requires a public authority to act in accordance with law.

[77]I accept, of course, that courts have a duty to apply section 31(2A), since that is the will of Parliament. Nevertheless, the important guidance which this Court has given in a number of cases, including Plan B Earth, Bradbury and Greenfields, should enable first instance courts and tribunals to apply that provision without undue difficulty.

[78]In the present case, I agree with Mr Buttler that, as the Judge himself had found, there was no evidence as to what the Secretary of State would have done if she had not committed the error of law which he rightly had held had been committed. There was no witness evidence or any other evidence filed by the Secretary of State as to the section 31(2A) issue. As often happens, the issue seems to have emerged during the course of the hearing before the Judge.

[79]I accept Mr Buttler’s submission that there is no requirement in the Windrush Scheme that there should have been a historical injustice, although that scheme emerged from what was regarded as an injustice. Furthermore, I accept Mr Buttler’s submission that the Judge’s reference to Appendix FM was irrelevant, since this was not on any view a case that would fall within Appendix FM.

[80]Very importantly, it seems to me, the Judge nowhere addressed, in particular at para 64 of the judgment (which I have quoted in full at para 26 above), the core point which the Appellant was making to the Respondent, which was that she had sufficient close ties to the UK that she fell within the “spirit” of the Windrush Scheme even if she did not strictly fall within its exact terms. As the Judge himself said elsewhere in his judgment, at para 72, the continuous residence requirement in the Windrush policy was a “proxy” for having sufficient ties to the UK. Accordingly, it was important that that core point by the Appellant should be considered on its merits. This was not done by the Judge, nor had it been done by the Respondent, as the Judge himself had held.

Application by the Respondent to adduce fresh evidence

[81]I must address the application made by the Respondent to file some documents which were not before the High Court, which are in the Unagreed Bundle. This application was not strongly resisted by Mr Buttler at the hearing before us, although he does understandably make the submission that this is evidence that could reasonably have been obtained and filed before the High Court. The Respondent has filed it at least in part in order to comply with her duty of candour and cooperation to assist the Court.

[82]In the High Court proceedings the evidence on behalf of the Home Office consisted of a witness statement by Lisa Birtles-Maule dated 19 January 2024, which exhibited relevant documents. These included email correspondence which had concerned the grant of ILR Outside the Rules in favour of Denzel and his brother Danny in 2019. In particular there was an email of 5 June 2019, which explained that their refusal of ILR in 2008 had been reviewed and the view was now taken that that decision was not correct for the reasons set out in the email.

[83]After the High Court decision, and for the purposes of the present appeal, the Respondent has applied for permission to rely on the second witness statement of Lisa Birtles-Maule dated 4 July 2025. In this she states that further emails have been identified which she believes should be produced to the Court under the duty of candour. She states that, although the Appellant’s solicitors had made a wide-ranging request for documents in their letter before claim of 16 May 2023 which would have included these documents, the Respondent had replied to say that searches would not be proportionate. Nevertheless, these emails have now been identified and are produced pursuant to the duty of candour.

[84]The exhibits to the second witness statements include an email dated 2 December 2021, in which the author explains the background to Denzel and Danny’s applications and explains the exceptionality as to why ILR was granted outside the Rules and the Windrush Scheme in their favour. It was said:

“Essentially, they applied for ILR in 2008 and on review by the Taskforce, it was considered that the 2008 application was incorrectly refused. Had their application been considered in line with the evidence provided, then they would or should have been granted ILR under the Rules and would have subsequently qualified under the Scheme.”

[85]In the case of this Appellant, however, the email explained that her immigration history is different and there is no record that she was included in the 2008 application for ILR. Therefore, unlike her siblings there was no exceptionality in her case to consider a grant of ILR outside the Scheme.

[86]The exhibits also include an email dated 1 December 2021, in which it is said:

“I don’t particularly see how it would be ‘in the spirit’ of the Scheme (and the rationale I’ve set out above) to do something exceptional for Jeanell. She has spent long periods of her adult life living overseas and in any case first came to the UK only a matter of weeks before turning 18 – I am just not seeing a rationale for why we should consider her to be in the same position as people who do qualify under that part of the Scheme. And I have to say that I don’t see any basis for making a grant of ILR on the grounds that she has suffered / been upset as a result of enforcement action against her family members. As far as I can tell the relevant individuals were all overstayers and enforcement action was correctly carried out.”

[87]The Appellant opposes the application, relying on Ladd v Marshall

[1954] 1 WLR 1489

, arguing that the documents could have been found with reasonable diligence before the High Court hearing and that they would not have an important influence on the result of the case.

[88]I would not wish to discourage those in the position of the Respondent in a case such as this from performing their duty of candour and cooperation with the Court, which is a continuing duty and does not end with the High Court proceedings. Nevertheless, I am doubtful whether the criteria for admission of fresh evidence in this Court are properly satisfied in this case. In particular, I can see no good reason why these documents could not reasonably have been obtained and filed before the High Court. They had been requested by the Appellant’s solicitors. Some email correspondence relating to the application by Denzel and Danny had been placed before the High Court but this documentation was not.

[89]In any event, I am not persuaded, insofar as Mr Brown sought to make this submission, that this additional correspondence establishes by way of evidence that it is highly likely that the decision in the Appellant’s case would not be substantially different if the Respondent had acted lawfully.

[90]As I have explained earlier, the critical legal failure which has occurred in the present case is breach of the non-fettering principle. For reasons I have set out already, the Judge erred in then going on to refuse relief under section 31(2A) and this further evidence does not persuade me that his conclusion was correct. I note, in any event, that this alternative argument has not been raised in the Respondent’s Notice.

Conclusion

[91]For the reasons I have given I would allow this appeal.

[92]In conclusion, I would stress that doing what the courts normally do on claims for judicial review, which is to quash the decision without pre-judging the merits of any reconsideration, does not mean that the Appellant will succeed in her application. The reality is that she does not qualify under the terms of the Windrush Scheme policy. It may well be that, on lawful reconsideration, the Respondent will maintain her position that the Appellant should not be granted ILR because she does not satisfy the terms of the Immigration Rules or any relevant policy. But that does not mean that the Respondent should be relieved of her conventional public law obligation, which is simply to consider exercising the discretion which Parliament has conferred upon her. That is no more and no less than what the law requires.

[93]I agree.

Sir Andrew McFarlane P:

[94]I also agree.