Non‑Fettering, Residual Immigration Discretion and the Limits of the “Highly Likely” Test: Commentary on Hippolyte v Secretary of State for the Home Department [2025] EWCA Civ 1493

Non‑Fettering, Residual Immigration Discretion and the Limits of the “Highly Likely” Test: Commentary on Hippolyte v Secretary of State for the Home Department [2025] EWCA Civ 1493

1. Introduction

This Court of Appeal decision addresses two central questions of contemporary public law and immigration practice:

  • How far may the Secretary of State rely on formal application routes and policy schemes (such as the Windrush Scheme and Leave Outside the Rules guidance) to control when she will consider exercising her broad residual discretion under section 3(1)(b) of the Immigration Act 1971?
  • When can a court decline to grant relief under section 31(2A) of the Senior Courts Act 1981 by concluding that it is “highly likely” that the outcome would have been the same, where the original legal error consists precisely in a failure to exercise a discretion at all?

The judgment in Hippolyte restates and sharpens the non‑fettering principle in the immigration context, clarifies the legitimate role of application forms and Home Office guidance, and emphasises that courts must avoid drifting into “forbidden territory” when applying the “highly likely” test in judicial review. It has particular resonance for Windrush Scheme decisions, but its implications are broader and cut across public law.

1.1 Parties and Context

The Appellant, Ms Jeanell Hippolyte, is the daughter of a member of the Windrush generation, Mr Cletus Hippolyte. Her father settled in the UK in the 1950s and later obtained British citizenship under the Windrush Scheme. Ms Hippolyte, however, did not enjoy a straightforward immigration history. She entered the UK shortly before turning 18, left following Home Office correspondence, and thereafter moved between the UK and St Lucia before ultimately residing in the UK with her two non‑British sons, one with ADHD.

The Respondent is the Secretary of State for the Home Department (“SSHD”), responsible for immigration control and for administering the Windrush Scheme, which is a concessionary policy outside the Immigration Rules designed to address injustices suffered by Commonwealth citizens and their families.

1.2 Issues in the Case

Ms Hippolyte applied twice for indefinite leave to remain (“ILR”) under category 4 of the Windrush Scheme. Her applications were refused because she did not meet the continuous residence requirement. The main issues on appeal were:

  1. Whether the SSHD had unlawfully failed to consider exercising her residual discretion under section 3(1)(b) of the Immigration Act 1971 to waive the continuous residence requirement, contrary to the non‑fettering principle.
  2. Whether the High Court was entitled to refuse relief under section 31(2A) of the Senior Courts Act 1981 by holding that it was “highly likely” that the outcome would not have been substantially different even if the discretion had been lawfully considered.
  3. Whether the SSHD could insist that any request for discretionary leave outside the Rules must be made via specific application forms and under the “Leave Outside the Rules” (“LOTR”) policy, failing which she is under no obligation to consider her residual discretion.

The Court of Appeal allowed the appeal, quashed the refusal decision, and remitted the matter to the SSHD for reconsideration in accordance with the law.

2. Factual and Procedural Background

2.1 The Windrush Scheme and Category 4

The Windrush Scheme was created in 2018 as a response to the Windrush scandal, intended to provide documentation and immigration solutions for Commonwealth citizens and certain children who had long‑standing residence or status in the UK (paras 4–7). It is a concessionary scheme, outside the Immigration Rules, and has no application fee.

The policy identifies four categories of applicant. Category 4 covers children of Commonwealth citizens who:

  1. Are in the UK;
  2. Are children of a qualifying Commonwealth citizen parent;
  3. Were born in the UK or arrived before age 18;
  4. Have been continuously resident in the UK since birth or arrival; and
  5. Whose parent was settled in the UK before 1 January 1973 or has the right of abode (or later became British).

Ms Hippolyte satisfied all but the continuous residence requirement (para 8).

2.2 Immigration History of the Appellant

Key elements of the Appellant’s history (paras 9–18) include:

  • Born in St Lucia in 1982; entered the UK in 2000 at age 17 as a visitor.
  • Later granted student leave until September 2002; told in writing that her student status gave her no basis to remain after her studies. Believing she had no right to stay, she left the UK.
  • Subsequent applications for entry clearance (as a dependant in 2006 and on a working holiday visa in 2008) were refused.
  • Returned to the UK as a visitor in 2013, thereafter moving between the UK and St Lucia, with longer periods of UK residence, including a period of 18–24 months.
  • Has lived in the UK continuously since August 2020 and has two sons born in the UK, one diagnosed with ADHD.
  • Her father was granted British citizenship under the Windrush Scheme in 2018 and later disappeared, presumed deceased. Seven siblings live in the UK with British citizenship. Two brothers (Danny and Denzel), who had previously overstayed and had applications refused, later obtained ILR and naturalisation under the Windrush Scheme.

She made two Windrush ILR applications:

  • First application (28 August 2020): refused 23 February 2021 for lack of continuous residence; review request unsuccessful.
  • Second application (2 December 2022): refused 19 January 2023; review refused 20 April 2023. That refusal triggered the judicial review proceedings.

2.3 High Court Proceedings

Two grounds were advanced before Sheldon J (para 20):

  1. Failure to consider whether to exercise discretion to waive the continuous residence requirement under section 3(1)(b) of the 1971 Act.
  2. Unlawful discrimination under Article 14 ECHR read with Article 8.

Only the first ground is material on appeal.

The High Court held:

  • The SSHD had indeed failed to consider whether to exercise her residual discretion to disapply the continuous residence requirement (paras 21–22). This was unlawful and contrary to the non‑fettering principle.
  • However, applying section 31(2A) of the Senior Courts Act 1981, the Judge refused relief, holding that it was highly likely that the outcome would not have been substantially different had the discretion been considered. He reasoned that:
    • There was no historic or historical injustice in the Appellant’s case comparable to core Windrush scenarios.
    • The compassionate and family‑life arguments (including the child’s ADHD and section 55 duties) could and should be pursued via Appendix FM, not under the Windrush Scheme (para 64).

Permission to appeal was granted.

2.4 Issues on Appeal

On appeal, the grounds (para 30) were:

  1. There was no evidential basis for concluding that the SSHD would highly likely have treated the Appellant’s “ties to the UK” arguments as relevant only to an Appendix FM application; the Judge strayed into “forbidden territory” by speculating about how the SSHD would exercise her discretion.
  2. The Judge was wrong to treat the absence of “historical injustice” as making it highly likely that discretion would not have been exercised.

The SSHD filed a Respondent’s Notice advancing three alternative reasons to uphold the High Court’s decision (para 32):

  1. The Appellant should have made a formal application for discretionary leave outside the Rules in line with LOTR guidance (e.g. via Appendix FM or form SET(O)); absent such an application, the SSHD was not obliged to treat her as seeking the exercise of discretion.
  2. The pre‑action protocol letter of 16 May 2023 was not a valid request for discretionary LOTR.
  3. On a correct reading, the SSHD had in fact considered her discretion and decided not to depart from the Windrush Scheme.

3. Summary of the Court of Appeal’s Decision

The Court of Appeal (Singh LJ, with whom Andrews LJ and McFarlane P agreed) allowed the appeal and quashed the refusal decision. The core conclusions can be summarised as follows:

  1. Unlawful Failure to Exercise Discretion Confirmed. The Court affirmed the High Court’s finding that the SSHD failed to consider exercising her residual discretion under section 3(1)(b) of the 1971 Act; she had instead treated the failure to meet the mandatory criteria of the Windrush Scheme as determinative (paras 50–52).
  2. Respondent’s Notice Rejected.
    • The pre‑action letter clearly invited exercise of discretion; it was wrong to say no such request existed (paras 50–51).
    • The correspondence showed that discretion was not actually considered; rather, it was said to be “not appropriate” because mandatory scheme requirements were not met, which itself evidences a fettering of discretion (para 52).
    • The SSHD’s contention that the Appellant used the “wrong form” was rejected; the Appellant had used the form that most closely matched her circumstances (the Windrush Scheme form), and the LOTR guidance itself cannot be applied so rigidly that it undermines the non‑fettering principle (paras 53–64).
  3. Non‑Fettering Principle Reaffirmed. The Court stressed that:
    • The SSHD has a broad residual discretion under the 1971 Act, which must remain capable of being exercised in individual cases.
    • Policies and forms cannot be used in an inflexible way so as to shut out requests to exercise that discretion (paras 59–64).
  4. Section 31(2A) Not Satisfied. The Court held that the High Court wrongly applied section 31(2A) by effectively stepping into the shoes of the SSHD and speculating as to what she would have decided in the exercise of a discretion she had never exercised:
    • There was no evidence about what decision would have been made if discretion were lawfully considered (paras 78–79).
    • The Judge focused on the merits (historic injustice, Appendix FM) rather than on the impact of the error on the decision‑making process (paras 75–77).
    • Given the nature of the error—failure to exercise a discretion at all—it was particularly inappropriate to invoke section 31(2A) (para 76).
  5. Fresh Evidence Not Decisive. Although the Court considered additional internal Home Office emails about the treatment of the Appellant’s brothers (and about “exceptionality” and “spirit of the Scheme”), it held that this material did not justify applying section 31(2A) or alter the legal analysis (paras 81–90).

The appeal was therefore allowed; the decision refusing ILR was quashed and remitted for lawful reconsideration, without any guarantee of a favourable outcome (paras 91–92).

4. Legal Framework

4.1 Section 3 of the Immigration Act 1971 and Residual Discretion

Section 3(1) of the 1971 Act provides that non‑British citizens require leave to enter or remain in the UK and that such leave may be given for a limited or indefinite period (para 34). Section 3(2) requires the SSHD to lay before Parliament statements of the Immigration Rules, governing the practice to be followed in regulating entry and stay (paras 35–36).

The Supreme Court in R (Munir) v SSHD [2012] UKSC 32 confirmed that:

  • The source of the power to grant leave outside the Rules is the Act itself.
  • Section 3(1)(b) confers a “wide discretion” to grant limited or indefinite leave even where leave would not be granted under the Immigration Rules (para 37).

As emphasised by Singh LJ (relying on Lord Dyson), this discretionary power is constrained only by:

  • Statutory limits; and
  • Public law principles, including the non‑fettering principle (paras 39–40).

4.2 The Windrush Scheme as a Concession Outside the Rules

The Windrush Scheme is a concessionary policy, not part of the Immigration Rules (para 55). It is therefore an example of the kind of “policy setting out principles by which [the SSHD] may, as a matter of discretion, grant concessions in individual cases” envisaged in Munir (para 39).

Key characteristics:

  • Operates outside the Rules;
  • Has formal eligibility criteria (e.g., continuous residence);
  • Is linked to historic and systemic injustice suffered by the Windrush generation and their families; but
  • It remains a policy governed by public law principles, including non‑fettering.

4.3 Leave Outside the Rules (LOTR) Guidance

LOTR guidance (version 2.0, March 2022) is aimed at Home Office decision‑makers considering leave outside the Rules “on the basis of compelling compassionate grounds” (para 54). It recognises that:

  • The Rules are intended to cover the vast majority of cases; but
  • The SSHD retains residual discretion under the 1971 Act to grant leave outside the Rules (para 57).

The guidance:

  • Emphasises that LOTR grants should be rare and not create a “parallel regime” undermining the Rules (para 58).
  • Identifies compelling compassionate (but non‑ECHR) circumstances as the paradigm reason to grant LOTR (para 59).
  • Sets out a process requiring applicants in the UK to apply on:
    • the form which most closely matches their circumstances and pay the relevant fees; or
    • FLR(HRO) or FLR(IR) for leave outside the Rules; or
    • SET(O) for ILR outside the Rules, with fees (paras 60–61).

However, the Court of Appeal makes clear that neither the substantive categories nor the process in LOTR can be applied so rigidly as to exclude consideration of other cases or other factors; to do so would itself breach the non‑fettering principle (paras 59, 62).

4.4 Non‑Fettering Principle

The non‑fettering principle requires that where a public authority has a statutory discretion, it must:

  • Be willing to consider each case on its merits;
  • Remain open to departing from a policy where the circumstances justify it; and
  • Not treat a policy or rule as an inflexible rule from which no exceptions can be made.

Key formulations relied on by the Court include:

  • R (Lumba) v SSHD [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.” (para 43)
  • R (West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441:
    • Policies may be expressed in unqualified terms; the real question is whether, in substance, decision‑makers are willing to entertain exceptions (para 44).
    • The “proof of the fettering will be in the willingness to entertain exceptions… rather than in the words of the policy itself” (para 44).
  • R (AB) v SSHD [2018] EWCA Civ 383 (per Leggatt LJ):
    • Immigration Rules themselves are not subject to the non‑fettering principle, but the SSHD’s residual discretion outside the Rules is (para 46).

4.5 Section 31(2A) of the Senior Courts Act 1981

Section 31(2A) requires the court to refuse relief in 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” (para 69).

This provision modifies the pre‑existing Simplex test, which required the court to be satisfied that the outcome would inevitably have been the same. The section:

  • Imposes a duty to refuse relief where the test is met (subject to exceptional public interest);
  • Lowers the threshold from “inevitable” to “highly likely”; and
  • Requires that it be “highly likely” that the outcome would not have been substantially different, not necessarily identical (para 70).

In Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214 and subsequent cases such as Bradbury [2025] EWCA Civ 489 and Greenfields (IOW) [2025] EWCA Civ 488, the Court of Appeal emphasised that:

  • The test is “a high one” (para 71).
  • Courts must avoid straying into merits‑based assessments (“forbidden territory”) when applying it (paras 71–73).
  • The focus should be on the impact of the error on the decision‑making process, not a prediction of the decision that would have been made if the error had not occurred (para 73).
  • Where an error relates to the non‑exercise of a discretion, it may be particularly difficult to say the outcome is “highly likely” to be no different, absent clear evidence from the decision‑maker.

5. Precedents Cited and Their Influence

5.1 Munir and Alvi: Source and Nature of Immigration Discretion

R (Munir) v SSHD [2012] UKSC 32 and R (Alvi) v SSHD [2012] UKSC 33 are central to understanding this case.

  • Munir:
    • Confirms that the 1971 Act, not the Rules, is the source of the SSHD’s power to grant leave, including outside the Rules (para 37).
    • Affirms the breadth of section 3(1)(b): the power to grant leave (limited or indefinite) is “clear and without qualification”.
    • Recognises the SSHD’s ability to adopt concessionary policies setting out how discretion will be exercised (para 39).
  • Alvi:
    • Draws a critical line between:
      • Substantive criteria whose non‑fulfilment will lead to refusal—these must be laid before Parliament as part of the Rules; and
      • Guidance or policies indicating that rules “may” be relaxed—these are not Rules for section 3(2) purposes (paras 41–42).

In Hippolyte, these cases support two propositions:

  1. The Windrush Scheme is a lawful concessionary policy outside the Rules, but not itself a constraint on the underlying statutory discretion.
  2. Policies like LOTR and Windrush cannot be used to extinguish, or rigidly confine, the residual discretion conferred by statute.

5.2 Lumba, West Berkshire DC, AB, Ali (Iraq), British Oxygen: Non‑Fettering in Practice

The Court draws on a line of authority to articulate non‑fettering:

  • Lumba: establishes that policies must be applied flexibly, with room for exceptions (para 43).
  • West Berkshire DC: clarifies that even if policies appear absolute in wording, the legal question is whether decision‑makers in substance remain open to exceptions (para 44).
  • AB and Ali (Iraq):
    • Recognise that the Immigration Rules are not themselves subject to the non‑fettering principle.
    • But confirm that the SSHD retains residual discretion to grant leave outside the Rules and that this discretion is subject to non‑fettering (paras 45–46).
  • British Oxygen Co v Minister of Technology [1971] AC 610:
    • Canonical authority that a decision‑maker may adopt a policy but must remain “always willing to listen to anyone with something new to say” (paras 44–46).

These cases underpin the Court’s rejection of:

  • The idea that the SSHD can deny having any obligation to consider a request for discretion because a particular form (e.g., SET(O) or Appendix FM) was not used.
  • An approach where discretion is treated as unavailable simply because scheme criteria are not met.

5.3 KA (biometrics) and Flexibility in Procedural Requirements

In R (KA) v SSHD [2022] EWHC 2473 (Admin), counsel for the SSHD accepted that applications could be made without strict compliance with biometric requirements and would be considered on their merits (para 45).

Singh LJ invokes KA to illustrate that:

  • It is consistent with public law principles for the SSHD to consider requests for the exercise of discretion even where the applicant has not complied with formal procedural steps.
  • By analogy, the SSHD must be prepared to consider a request to exercise discretion under section 3(1)(b) even if it is made within or alongside a Windrush application, or via pre‑action correspondence, and not via LOTR/SET(O) forms (paras 45, 62–64).

5.4 Patel and the “Near Miss” Principle

The SSHD argued, relying on Patel v SSHD [2013] UKSC 72, that there is no “near miss” doctrine and that failure to meet Windrush conditions cannot count in the Appellant’s favour (para 65).

The Court accepts Patel as establishing that:

  • There is no principle requiring proportionality adjustments merely because an applicant comes close to satisfying a rule (“near miss”).
  • Article 8 ECHR is not a general dispensing power (para 66).

However, Singh LJ distinguishes this from the present case (para 67):

  • The Appellant is not claiming a right to ILR on a “near miss” basis.
  • Instead, she claims a right to have her case considered under the SSHD’s residual discretion, taking account of factors that might cause departure from policy.
  • That is an application of non‑fettering, not a “near miss” claim.

5.5 Plan B Earth, Bradbury, Greenfields: Section 31(2A) and the “Highly Likely” Test

The Court draws heavily on this trilogy to articulate how section 31(2A) should be applied:

  • Plan B Earth:
    • Confirms that the test is stringent (“a high threshold”) and that courts must avoid sliding into merits review (para 71).
  • Bradbury (2025):
    • Reiterates that the focus is on the significance of the legal error in the decision‑making process, not on predicting what the authority would have done (para 72).
    • If the court cannot tell how matters would have been approached absent the error, section 31(2A) will rarely be satisfied (para 72).
  • Greenfields (2025):
    • Emphasises the duty of candour: if section 31(2A) is relied on, the public body must provide a full, clear explanation of the decision‑making process, usually via witness evidence (para 74).

In Hippolyte, these authorities led the Court to conclude that:

  • Absent any evidence as to what the SSHD would have done if discretion had been lawfully considered, the High Court could not properly find that it was “highly likely” that the outcome would not have been substantially different.
  • The High Court’s reasoning improperly involved speculating about the merits, contrary to the guidance in these cases (paras 75–79).

5.6 Ladd v Marshall and Fresh Evidence on Appeal

The Court also references Ladd v Marshall [1954] 1 WLR 1489 in addressing whether fresh evidence (additional Home Office emails) should be admitted on appeal (paras 81–90).

While the Court is cautious about discouraging compliance with the duty of candour, it notes:

  • There was no good reason why the emails could not have been produced before the High Court (para 88).
  • Even if considered, they did not demonstrate that it was “highly likely” that the outcome would not have been substantially different (para 89).

6. Analysis of the Court’s Legal Reasoning

6.1 Non‑Fettering and the SSHD’s Residual Discretion

At the heart of the case is the SSHD’s residual power under section 3(1)(b) to grant ILR outside the Rules and outside schemes such as Windrush. The Court underscores that:

  • Windrush Scheme criteria—even if labelled “mandatory” within the policy—cannot be treated as legally exhaustive of the SSHD’s power to grant ILR in relevant cases.
  • The statement in the Home Office’s 25 May 2023 letter that “discretion was not considered appropriate to apply as mandatory requirements have not been met” (para 51, emphasis added by the Court) demonstrates a classic form of fettering:
    • Discretion is refused because policy criteria are not met.
    • This is not an exercise of discretion; it is a refusal to entertain it at all (para 52).

Singh LJ’s reasoning is significant:

  • The error is not failing to exercise discretion in a particular way; rather, it is failing to exercise it at all because of an erroneous view that policy criteria are determinative.
  • That is precisely the kind of conduct the non‑fettering principle forbids.

The Court reinforces that the non‑fettering principle applies with particular force where Parliament has conferred a broad power to grant leave outside the Rules (paras 40, 46). While structured schemes such as Windrush are legitimate, they must be embedded within, not substituted for, the underlying statutory discretion.

6.2 Can the SSHD Insist on a Specific Application Form for Discretionary Decisions?

The SSHD argued that, in the interests of administrative efficiency and consistency, applicants seeking exercise of discretion outside the Rules must follow the LOTR policy, which usually means:

  • Applying on the form closest to their circumstances with fees; or
  • Using specified FLR or SET(O) forms for LOTR (paras 53, 60–61).

The Court’s response balances administrative order against the non‑fettering principle:

  • It recognises that the SSHD is entitled to have procedural policies and to expect general compliance (para 62).
  • However, it rejects the idea that those procedural requirements can be absolute where that would effectively preclude consideration of discrete cases (paras 62–64).

The Court deploys a hypothetical (para 63):

If a public authority required applications to be made only online, individuals without internet access, or temporarily unable to use it, could not be shut out from having their discretionary claims considered merely because they used a different method (such as a letter).

Analogously, in Hippolyte:

  • The Appellant used the Windrush Scheme form, which the Court accepted as the form that most closely matched her circumstances (para 61).
  • She could not rationally be expected to use Appendix FM forms (which do not fit her circumstances at all) or SET(O) with substantial fees, when Windrush applications are fee‑free and tailored to her family background.

The Court therefore holds:

  • Application forms and guidance cannot lawfully be used to bar consideration of discretionary requests that are expressly raised in other formats (including pre‑action letters), particularly when a person is already within a relevant policy framework (Windrush) (paras 50–52, 62–64).
  • To treat the use of the “wrong” form as eliminating any duty to consider discretion would itself be a fetter.

6.3 The “Highly Likely” Test and the “Forbidden Territory”

The High Court’s refusal of relief was based on section 31(2A), essentially predicting that:

  • The SSHD was highly likely not to exercise discretion; and
  • The same decision would have been reached even if the discretion had been properly considered (paras 22–26, 75).

The Court of Appeal finds this approach flawed for several interlocking reasons:

  1. No Evidence from the SSHD. There was no witness evidence from an official explaining how discretion would have been approached or what decision would likely have been taken (para 22, later emphasised at para 78). This is important in light of Greenfields, which stresses that reliance on section 31(2A) requires clear evidence of the decision‑making process (para 74).
  2. Nature of the Error. The legal wrong was a failure to exercise discretion at all, not merely an error in weighing factors. As Singh LJ notes (para 76):
    “Particularly in a case where the very legal wrong … is a failure to exercise a discretion at all … a court should be especially careful not to try to step into the shoes of the relevant public authority.”
    To say that it is “highly likely” the same outcome would follow is, in substance, to make a substantive decision on the merits in place of the SSHD.
  3. Risk of Merits Substitution. The Judge’s conclusion rested on his own assessment that:
    • The Appellant’s situation was not “really equivalent to a Windrush claim”; and
    • Her compassionate and family‑life factors should be pursued under Appendix FM, if at all (para 26, quoting para 64 of the High Court judgment).
    This reasoning involves normative judgment about which factors should matter in the exercise of discretion—precisely what the SSHD ought to decide, not the court.
  4. Failure to Address the Core Argument. The High Court did not engage with the Appellant’s central submission that:
    • The continuous residence requirement is a proxy for strong and subsisting ties to the UK (as the Judge himself accepted in another part of his judgment at para 28/72); and
    • Her case fell within the “spirit” of that requirement due to her family network and current ties, notwithstanding breaks in residence (para 80).
    This was an argument about how discretion should be exercised, which the SSHD had never addressed and the Judge could not safely predict.

In light of Plan B Earth, Bradbury and Greenfields, the Court concludes that:

  • The statutory threshold in section 31(2A) was not met.
  • The High Court impermissibly entered “forbidden territory” by effectively substituting its own merits‑based view of how discretion ought to be exercised (paras 75–79).

6.4 “Historical Injustice” and the Spirit of the Windrush Scheme

The High Court took the view that the absence of “historic injustice” in the Appellant’s case made it highly likely that the SSHD would not have exercised discretion in her favour (paras 24, 26). The Court of Appeal corrects this in two ways (paras 79–80):

  • The Windrush Scheme does not itself require a showing of historical injustice for eligibility to ILR. While its origins lie in remedying injustice, “historical injustice” is not a formal criterion.
  • The Appellant’s primary argument is not that she is a victim of historic injustice comparable to core Windrush cases, but that:
    • She meets the substantive purpose of the continuous residence requirement through strong ties; and
    • Thus falls within the “spirit” of the Scheme.

The Court notes, importantly, that the Judge himself accepted that the continuous residence rule is a “proxy” for strong and subsisting ties to the UK (para 28/72). That recognition strengthens the argument that:

  • Where someone can demonstrate such ties in another way, it is at least arguable that discretion might be exercised to waive formal continuous residence.
  • This possibility suffices to show that the outcome cannot be characterised as “highly likely” to be the same, especially absent any SSHD evidence.

6.5 Appendix FM and Mischaracterisation of Available Routes

The High Court’s reasoning that the Appellant’s family and compassionate circumstances ought to be raised under Appendix FM was undermined by a basic mischaracterisation of the legal framework (paras 26–27):

  • Appendix FM covers defined categories (spouses/partners of settled persons, parents of British or settled children, etc.).
  • The Appellant did not fit any of these categories; she could not realistically make a viable Appendix FM application.

The Court of Appeal observes that this undermines the High Court’s analysis:

  • First, it removes the supposed “alternative route” which the Judge treated as the appropriate channel.
  • Second, it exposes that the Judge’s conclusion that the same outcome was “highly likely” was built on a mistaken understanding of the legal options (para 79).

This reinforces the Court’s view that the section 31(2A) threshold was not met.

6.6 Duty of Candour and Fresh Evidence

After the High Court’s decision, the SSHD produced further internal emails explaining:

  • Why ILR had been granted outside the Rules and Windrush Scheme to the Appellant’s brothers (because an earlier refusal was later judged incorrect, and they “would or should” have been granted ILR in 2008); and
  • The internal rationale for not treating the Appellant as within the “spirit” of the Scheme (because she came to the UK shortly before turning 18 and had long periods abroad) (paras 82–87).

The Court takes a nuanced approach (paras 81–90):

  • It recognises the continuing duty of candour and does not want to discourage further disclosures on appeal.
  • Nevertheless, it notes that:
    • These documents could have been located and produced with reasonable diligence at first instance (para 88).
    • Even taken into account, they do not demonstrate that the outcome would highly likely have been the same had discretion been lawfully considered (para 89).

Crucially, the emails show that internal officials did debate whether the Appellant was within the “spirit” of the Scheme and whether there was “exceptionality” justifying ILR outside the Rules. That tends to:

  • Undermine (rather than support) the idea that the Court can say the discretion, if lawfully addressed, would inevitably or “highly likely” have been exercised adversely.
  • Confirm that these were matters that ought properly to be decided by the SSHD in a lawful, transparent decision—not by the court second‑guessing them.

7. Complex Concepts Simplified

7.1 Indefinite Leave to Remain (ILR)

ILR is permission to stay in the UK without time limit. It is not British citizenship, but it allows a person to:

  • Live and work in the UK without immigration restrictions;
  • Access certain public benefits (subject to conditions);
  • Subsequently apply for British citizenship (subject to further criteria).

7.2 Windrush Scheme

The Windrush Scheme is a special Home Office policy for Commonwealth citizens and some of their children who:

  • Arrived in the UK before certain dates, often as children; and
  • Lacked documentation of their right to live and work in the UK.

It is meant to correct injustices where lawful residents were wrongly treated as illegal immigrants. It:

  • Operates outside the Immigration Rules;
  • Has no application fee; and
  • Includes eligibility categories (like category 4 for certain children), which include a continuous residence requirement.

7.3 Leave Outside the Immigration Rules (LOTR)

LOTR is a legal route where:

  • A person does not meet the conditions in the Immigration Rules; but
  • The SSHD may still grant leave (limited or indefinite) because of compelling or exceptional reasons, based on her residual discretion under the 1971 Act.

The LOTR guidance sets out examples and procedures for such grants, but cannot exhaust the SSHD’s statutory discretion or prevent consideration of other exceptional cases.

7.4 Non‑Fettering of Discretion

Where a public authority (like the SSHD) has a legal power to decide something case by case, it:

  • Can adopt policies to guide decisions, for consistency and predictability; but
  • Must remain open to making exceptions where the facts justify it.

A policy is unlawfully “fettering” if it is applied as a fixed rule that the authority feels unable to depart from. Evidence of fettering includes:

  • Statements that discretion will never be used if a policy criterion is not met; or
  • Refusal even to consider exceptions or individual circumstances.

7.5 Section 31(2A) “Highly Likely” Test

In judicial review, even if the court finds that a public body acted unlawfully, it may be required to refuse a remedy if:

  • It is “highly likely” that the outcome for the claimant would not have been “substantially different” had the error not occurred.

Points to note:

  • “Highly likely” is a stringent test; it is not enough that the same outcome is merely possible or even probable.
  • “Substantially different” focuses on the claimant’s position—not on technical or minor differences.
  • The court must avoid deciding what it thinks the authority ought to do; instead, it should examine the impact of the error on the process, and require proper evidence if the authority claims the result would have been the same.

7.6 “Near Miss” Principle

The “near miss” notion is the idea that if an applicant almost meets the legal test (e.g., nearly satisfies all the criteria in the Rules), that “closeness” itself should count in their favour as a legal right. Patel confirms that there is no such principle in immigration law; coming close does not create a right to succeed.

However, that is different from saying:

  • Decision‑makers cannot consider “near miss” factors as part of an overall discretionary assessment (they can); or
  • Courts cannot insist that residual discretion be at least considered where someone is close to satisfying a policy (as in Hippolyte).

7.7 Duty of Candour

Public bodies in judicial review proceedings must:

  • Provide a full, fair and accurate explanation of the decision‑making process;
  • Disclose relevant documents, even if unhelpful to their case; and
  • Assist the court in understanding what happened.

This duty is ongoing, extending into appeals. The Court’s discussion of the late‑produced emails in Hippolyte illustrates both the importance and the limits of this duty in the appellate context.

8. Impact and Implications

8.1 For the Administration of the Windrush Scheme

This judgment has immediate consequences for how the Windrush Scheme is administered:

  • Residual Discretion Must Be Considered. Where applicants do not meet scheme criteria but make a case that they nonetheless fall within the “spirit” or substantive purpose of the policy (e.g., strong ties equivalent to continuous residence), the SSHD must at least consider whether to exercise her residual discretion.
  • No Rigid Reliance on “Mandatory” Criteria. Officials cannot treat the failure to meet “mandatory” Windrush criteria as automatically excluding the possibility of discretionary relief. To do so would be to apply the policy as an inflexible rule, contrary to non‑fettering.
  • Recognition of Ties Beyond Formal Residence. The Court’s acceptance that continuous residence is a proxy for strong ties (para 28/72) suggests that:
    • Non‑continuous residence does not automatically preclude a discretionary grant where ties are demonstrably strong.

8.2 For Home Office Use of Guidance and Forms

The decision sends a clear signal regarding procedural policies:

  • The Home Office may require particular forms and processes in general, but:
    • These requirements cannot be so rigid that they effectively prevent an individual from having a request for discretion considered at all.
    • Pre‑action correspondence, representations within an existing application, or other communications can amount to a valid request to consider discretion.
  • LOTR guidance and the Windrush Scheme must be applied in a way that leaves scope for exceptional or atypical cases.

This has broader implications beyond Windrush:

  • Any immigration scheme or guidance that effectively shuts out discretionary consideration due to formal non‑compliance with process is vulnerable to challenge.
  • Decision‑letters should avoid language suggesting that discretion is ruled out merely because policy criteria are not met. Instead, they should show that discretion was at least considered and, if not exercised, explain why.

8.3 For the Application of Section 31(2A) Across Public Law

Hippolyte strengthens and applies guidance on section 31(2A):

  • High Threshold Reaffirmed. Courts must resist using section 31(2A) as an expedient to avoid quashing decisions where there has been a clear breach of public law principles.
  • Particular Caution with Discretionary Failures. Where the error is a failure to exercise discretion at all (rather than, say, a minor failure in reasoning), it will usually be very difficult to say that the outcome is “highly likely” to be the same without robust evidence from the decision‑maker.
  • Evidence and Candour are Critical. If public bodies wish to rely on section 31(2A), they should provide:
    • Clear witness statements explaining the decision‑making process;
    • Disclosure of relevant internal discussions.
    Bare submissions by counsel or speculation by the court are insufficient.

8.4 For Judicial Review Claimants

The judgment offers several strategic insights for claimants:

  • Expressly inviting the SSHD to exercise residual discretion—even within an application under a scheme like Windrush—can be powerful if she fails to address that request.
  • Where a scheme criterion is a proxy (like continuous residence for “ties”), claimants can argue that equivalent substantive conditions are met in other ways.
  • If the SSHD relies on section 31(2A) at trial, claimants can call attention to:
    • Any lack of evidence (e.g., no witness statement);
    • The impossibility of knowing what decision would have been made in a lawful exercise of discretion.

8.5 For the Broader Public Law Landscape

Beyond immigration, Hippolyte is a strong reaffirmation of two constitutional themes:

  • Rule of Law and Separation of Functions.
    • The Court emphasises that its role is to ensure that public authorities act lawfully, not to decide the merits of discretionary choices (paras 76–77, 92).
    • Quashing and remittal, rather than speculative application of section 31(2A), is the “normal course” where a discretion has not been exercised at all (para 76).
  • Flexibility in the Application of Policy.
    • Public bodies must design and apply policies and schemes in a manner that preserves the possibility of exceptions in individual cases.
    • Formalism (over‑reliance on forms and processes) cannot override substantive public law principles.

9. Conclusion and Key Takeaways

Hippolyte v Secretary of State for the Home Department is an important authority at the intersection of immigration law and public law, with particular significance for the administration of the Windrush Scheme and for the interpretation of section 31(2A) SCA 1981.

9.1 Key Legal Points

  • Residual Discretion Under Section 3(1)(b) Is Real and Must Be Considered. The SSHD cannot treat formal policy criteria (even “mandatory” ones) as exhausting her powers or as automatically precluding the exercise of discretion.
  • Non‑Fettering Applies to Concessionary Schemes and Guidance. Policies such as the Windrush Scheme and LOTR guidance must leave room for exceptions; a refusal to exercise discretion purely because a scheme criterion is not met is unlawful.
  • Forms and Procedures Are a Means, Not a Legal Gatekeeper. While the SSHD may require particular forms, she cannot ignore a properly articulated request for discretion merely because it is made via a different route.
  • Section 31(2A) Must Be Applied with Caution, Especially Where a Discretion Was Never Exercised. Courts should focus on the impact of the legal error on the decision‑making process and require real evidence before concluding that the outcome would have been “highly likely” to be the same.
  • Windrush Continuous Residence as a Proxy. Recognising continuous residence as a proxy for strong ties opens a legitimate space for discretionary waivers where equivalent ties can be demonstrated in other ways.

9.2 Practical Significance

Practically, the decision:

  • Constrains the Home Office from rejecting Windrush‑adjacent cases solely on technical or formal grounds without engaging with residual discretion.
  • Strengthens claimants’ ability to challenge refusals where discretion has been shut out by over‑rigid application of policy or process.
  • Reinforces the judiciary’s commitment to upholding the rule of law and maintaining a clear distinction between:
    • Ensuring lawful decision‑making; and
    • Substituting its view of the merits.

The Court ends by stressing that allowing the appeal does not predetermine the substantive outcome. The SSHD may still lawfully decide to refuse ILR to Ms Hippolyte. What the law requires—and what this judgment insists upon—is that she do so only after genuinely considering whether to exercise the broad discretion conferred by Parliament, without fettering it by overly rigid reliance on scheme criteria or procedural forms (para 92).

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Civil Division)

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