Rationality, Digital Status and Section 3C Leave: No General Public Law Duty to Provide Immediate eVisa Proof

1. Introduction

This Court of Appeal (Civil Division) judgment in Refugee and Migrant Forum of Essex and London & Anor v Secretary of State for the Home Department ([2025] EWCA Civ 1843, 19 November 2025) addresses an increasingly pressing question in UK immigration law: must the Secretary of State, as a matter of public law, provide migrants whose leave is extended by section 3C of the Immigration Act 1971 with an immediately accessible digital record (an “eVisa” or equivalent) proving their lawful status at any given time?

The claim arose against the backdrop of the “hostile environment” (now rebranded as the “compliant environment”) regime, under which a wide range of everyday rights and services – work, renting, benefits, healthcare, banking, driving and student finance – are directly contingent on being able to prove lawful immigration status to third parties. Migrants on section 3C leave, whose previous limited leave to remain (LLR) has been automatically extended by operation of law while a further application is pending, often have no physical or digital document which actually shows that current status.

RAMFEL (a migrant-support NGO) and an individual claimant, Ms Cecilia Adjei, contended that the Secretary of State’s failure to provide such proof – particularly in the form of eVisas – was:

irrational / Wednesbury-unreasonable;
contrary to the Padfield principle (i.e. inconsistent with statutory purpose); and
in breach of the section 55 duty in the Borders, Citizenship and Immigration Act 2009 to have regard to the best interests of children.

At first instance, Cavanagh J accepted two of these grounds and granted declarations that:

the failure to provide digital proof of lawful status to all those on section 3C leave was Wednesbury-unreasonable, and
the Secretary of State was in breach of section 55 in failing to provide such proof.

The Secretary of State appealed. The claimants cross-appealed on Padfield. The Court of Appeal (Underhill, Elisabeth Laing and Baker LJJ) has now:

allowed the appeal on irrationality (ground 1);
dismissed the cross-appeal on Padfield; and
adjourned the section 55 ground (ground 2) for further written submissions in light of the Court’s subsequent decision in R (DM) v SSHD [2025] EWCA Civ 1273.

Doctrinally, this decision is important because it:

clarifies the limits of Wednesbury irrationality in challenging the design and timing of complex administrative systems (here, the gradual roll-out of eVisas);
confirms that the Padfield principle normally applies only where a specific statutory power is being exercised, not merely to the use of broad implied administrative powers; and
signals a more structured and decision-specific approach to section 55 BCIA 2009 challenges, especially where the alleged duty concerns the knock-on impact of a generally adult-focused policy on children.

2. Background and Legal Framework

2.1 Parties

First Claimant: RAMFEL
The Refugee and Migrant Forum of Essex and London is a charity providing support to 2,000–2,500 migrants a year. Its evidence, including a 2022 report “The Hostile Environment Remains in Place”, underpinned the systemic aspect of the challenge.
Second Claimant: Ms Cecilia Adjei
A Ghanaian national, initially a visitor in 2000, who later obtained 30 months’ LLR in 2016 on a family/private life route, with subsequent extensions. On two long periods of section 3C leave she was unable to work for weeks at a time because prospective or existing employers could not promptly verify her right to work.
Defendant / Appellant: Secretary of State for the Home Department (SSHD)
Responsible for immigration control, including the grant and documentation of leave, and for operating the hostile-compliant environment.

2.2 Section 3 and Section 3C of the Immigration Act 1971

Section 3 of the 1971 Act provides that non-British citizens require leave to enter or remain, which may be:

Limited leave to remain (LLR) – for a fixed period (often 30 months in family/private life routes), subject to conditions (e.g. no recourse to public funds, right to work limitations); or
Indefinite leave to remain (ILR) – settlement, typically after at least five or ten years of lawful residence.

Section 3(3) allows the Secretary of State to vary limited leave (extend, curtail or alter conditions). Section 4(1) requires leave or its variation to be given by “notice in writing” – historically vignettes, now typically biometric residence permits (BRPs), and more recently eVisas.

Section 3C is crucial. It provides that where:

a person with LLR applies for variation of their leave,
the application is made before expiry of the existing leave (“in time”), and
the original leave expires before that application is decided,

their existing leave is automatically extended by law until the application (and any appeal or administrative review) is finally determined. That automatically extended leave is often called “section 3C leave”.

Key features:

Section 3C leave arises by operation of law; no further decision or written notice is given.
The conditions attached to the previous LLR (e.g. right to work) continue during section 3C leave.
The precise expiry date of section 3C leave is inherently uncertain, depending on when the Home Office decides the variation application and whether appeals or reviews are brought.

2.3 Documentation: From Vignettes and BRPs to eVisas

Historically, grants of LLR were recorded via:

Entry clearance vignettes in passports; later
BRPs issued under the UK Borders Act 2007 and the Immigration (Biometric Registration) Regulations 2008.

These physical documents could readily be shown to employers, landlords and others as proof of current leave (though they are not perfect, because leave can be curtailed later).

From 2021 onwards, the Home Office moved towards a fully digital status system:

eVisas are online records kept by the Home Office that show, in real time, a person’s current immigration status. Holders can generate a “share code” allowing third parties to check their status instantly.
Initially, eVisas were introduced administratively (under implied powers to operate systems ancillary to the 1971 Act, per R (New London College Ltd) v SSHD [2013] UKSC 51), and only later given explicit statutory underpinning in amendments to the 2008 Regulations in 2025.
They were rolled out gradually:
- From 26 January 2023: issued for successful applications for further leave in some “routes” (e.g. students, skilled workers, spouses) – 25 out of 89 routes by the time of the High Court hearing.
- By early November 2024: according to the 2025 Regulations’ Explanatory Memorandum, BRPs ceased to be issued for LLR > six months; eVisas became the main form of documentary proof.

Critically, eVisas were only given at the point of a grant of primary leave (initial LLR or further LLR), not mid-flight. Section 3C leave is not accompanied by any new document. Only once an eVisa holder’s fresh LLR later expires and they make an in-time application for further leave will their section 3C leave itself be digitally visible in real time through the eVisa.

2.4 The Hostile (Compliant) Environment

Since 2014, a series of legislative measures have required various actors to check immigration status as a precondition for access to work, housing, health care, benefits, banking, driving licences and student finance, with criminal or civil penalties for those who get it wrong. As summarised in the judgment:

Employment – Employers commit a criminal and civil wrong if they employ people disqualified by immigration status, unless they have seen prescribed documentation or obtained Home Office confirmation via the Employer Checking Service (ECS). ECS can issue a Positive Verification Notice (PVN).
Rented accommodation – Landlords face penalties for renting to those without the right to rent, unless they have seen documentation or obtained a Positive Right to Rent Notice via the Landlords Checking Service (LCS).
Benefits – DWP must verify conditions attached to leave before paying certain benefits.
NHS – Trusts are required to check whether a patient is chargeable based on immigration status.
Bank accounts, driving licences, student finance – providers must confirm lawful status, often via Home Office checks.

Those with primary LLR and a current BRP or eVisa can usually provide instant proof. Those on section 3C leave typically cannot: their BRP has an expired date, and they have no eVisa yet. They are reliant on third parties using ECS, LCS or other Home Office status enquiry systems, which involve delay, uncertainty and reliance on the other party’s willingness to check.

3. Issues Before the Court of Appeal

On appeal, three main public law questions arose:

Wednesbury irrationality (Ground 1)
Was it irrational for the Secretary of State not to provide migrants on section 3C leave with a form of immediately accessible digital documentation (eVisa or equivalent) proving their current lawful status, given the acknowledged hardships caused?
Padfield principle (Cross-appeal)
Was the failure to provide such documentation contrary to the policy and objects of the immigration statutes (section 3C and the hostile environment legislation), so as to offend the Padfield principle?
Section 55 BCIA 2009 (Ground 2)
Did the Secretary of State breach the duty to make arrangements ensuring that immigration functions are discharged having regard to the best interests of children in the UK by failing, when deciding not to document section 3C leave, to consider the adverse impact on children of adults’ inability to prove lawful status?

Only the first two grounds were finally determined in this judgment; the section 55 ground is adjourned for further submissions.

4. Summary of the Judgment

4.1 Wednesbury Unreasonableness: Appeal Allowed

The Court of Appeal reversed Cavanagh J’s finding that the Secretary of State had acted irrationally in not providing immediate digital proof of section 3C leave to all affected migrants. Underhill LJ (with whom the other Lords Justices agreed) held:

The evidence showed that some migrants on section 3C leave do suffer serious hardship because they cannot prove status instantly, but the scale and distribution of that hardship across the large cohort (up to 370,000) is uncertain.
While immediate demonstrability is desirable, it is not mandated by the “legislative purpose” of section 3C or the hostile environment measures; Parliament left the mode and timing of documentation to the Secretary of State’s discretion.
The existence and gradual roll-out of eVisas does not prove that it was practically possible or administratively rational to provide digital proof to all those already on section 3C leave at once.
The burden of proof in a rationality challenge lies on the claimants; they failed to show that the staged implementation of digital status, and the absence of immediate eVisas for current 3C holders, was outside the range of reasonable decisions open to the Secretary of State.

Accordingly, the High Court’s declaration that the failure to provide digital documentation was Wednesbury-unreasonable was set aside.

4.2 Padfield: Cross-Appeal Dismissed

Cavanagh J had rejected the Padfield ground, and the Court of Appeal agreed, dismissing the cross-appeal. The Padfield principle, which requires statutory powers to be exercised to promote statutory objectives, was held:

to be inapplicable where no specific statutory power or discretion concerning documentation is being used; and
in any event, not breached on the facts, because the Secretary of State’s approach to documentation did not frustrate the purpose of section 3C or the hostile environment legislation.

4.3 Section 55 BCIA 2009: Ground 2 Adjourned

The High Court had found a breach of the section 55 duty (best interests of children) in relation to the decision not to document section 3C leave. The Court of Appeal did not immediately decide this issue. Instead, it adjourned ground 2 for further written submissions, principally because:

After the oral hearing, the Court’s decision in R (DM) v SSHD [2025] EWCA Civ 1273 clarified the need to identify a specific decision attracting the section 55 duty, and expressed scepticism about challenges to the mere ongoing operation of a system or policy.
In this case, no one had clearly identified who took the relevant decision, and when, to “not provide documentary proof to all those on section 3C leave”.

The Court invited submissions on:

What the relevant decision(s) were, and by whom and when they were taken;
Whether the challenge is to one or more past decisions or to the ongoing operation of a policy;
Whether the fact that the policy is not child-specific but affects children via their parents’ position affects the section 55 analysis; and
The interaction between the dismissal of the irrationality ground and the availability of section 55 relief.

For present purposes, the legal effect is that the section 3C documentation policy is not currently declared unlawful on section 55 grounds; that remains to be resolved.

5. Detailed Analysis

5.1 Wednesbury Unreasonableness and Digital Proof of Section 3C Leave

5.1.1 The Legal Test

The Court applied the familiar rationality test derived from:

Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 – a decision is unlawful if it is “so unreasonable that no reasonable authority could ever have come to it”; and
Boddington v British Transport Police [1999] 2 AC 143 – the decision must be “outside the range of reasonable decisions open to the decision-maker”.

Underhill LJ, echoing his earlier discussion in Pantellerisco v SSWP [2021] EWCA Civ 1454 and Rose LJ in SSWP v Johnson [2020] EWCA Civ 778, emphasised:

The strong deference owed to ministers in designing and implementing administrative systems, especially complex nationwide schemes;
The Court’s reluctance to intervene merely because it believes that “better solutions” could have been adopted; and
The importance of relative institutional competence and constitutional principle in leaving resource allocation and programme design primarily to the executive.

5.1.2 The Hardship Evidence and Its Limits

Both sides accepted that the absence of immediate proof of section 3C leave leads to real hardship in some cases. The evidence, summarised by Cavanagh J and endorsed by the Court of Appeal, included:

Delays in Employer Checking Service responses, preventing work continuity for Ms Adjei (two- and three-week periods out of work);
Examples collated by JCWI of job offers withdrawn, suspension from employment, and difficulty entering recruitment processes;
RAMFEL’s study showing that, in its 2021 open file survey,
- around one in three clients on section 3C leave experienced “serious detriment” under hostile environment measures due to being “undocumented”; and
- 17% of applicants for further leave suffered “more serious detriment”, including suspension or refusal of benefits, loss or denial of work, and problems accessing housing and education.

However, Underhill LJ stressed that:

RAMFEL’s clients are not necessarily representative of the entire cohort of 3C migrants; they tend to be those experiencing difficulties who seek advice.
The overall number of migrants on section 3C leave (about 370,000 in 2019) is very large, and the data did not clearly show what proportion suffer significant, as opposed to minor or no, detriment.
In many cases, the ECS/LCS and similar systems actually work tolerably well, especially where third parties are willing to use them and do not insist on instantaneous proof.

He accepted Cavanagh J’s description of the number adversely affected as “substantial” but noted that this “elastic term” could be consistent with a relatively small fraction of the overall cohort. While not diminishing the seriousness of hardship in individual cases, that uncertainty about scale and distribution is legally relevant when assessing whether a system is irrational, as opposed to imperfect.

5.1.3 Was Immediate Demonstrability Part of the Legislative Purpose?

A central plank of the High Court’s reasoning was that the “legislative purpose” of section 3C and the hostile environment regime includes enabling those lawfully present on section 3C leave to immediately demonstrate their status and attendant rights.

The Court of Appeal disagreed. Underhill LJ drew an important distinction:

It is clearly the purpose of section 3C that those whose leave is automatically extended remain entitled to the rights and benefits they had under their previous LLR.
It may also be implicit that they should have an effective means of demonstrating that entitlement to third parties – otherwise the legal right would be hollow.
But nothing in the text or context of section 3C or the hostile environment legislation suggests a requirement that such demonstration must be immediate and self-contained in the way an eVisa or physical document might be.

Two further points underpinned this conclusion:

Silence of the statute on documentation
The legislation says nothing about how section 3C leave is to be documented. The natural inference is that Parliament left it to the Secretary of State’s discretion to design appropriate administrative mechanisms, including timescales and modalities.
Technological context at the time of enactment
When section 3C was first enacted (1999) and when key hostile environment measures were legislated (around 2014), an eVisa-type real-time digital status system was:
- not in operation; and
- there is no indication it was envisaged by Parliament.
It is therefore difficult to say that Parliament’s “purpose” required the very kind of system that did not then exist.

Thus, the Court considered that focusing on “legislative purpose” in this context risked importing an unduly rigid requirement for immediate demonstrability that Parliament had not itself specified.

5.1.4 The Crucial Question: Practical Feasibility and the Staged Roll-out of eVisas

The High Court’s decisive conclusion on irrationality rested on a third “key consideration”: that there was no evidence, and no submissions, that it would be impractical or unduly costly for the Secretary of State to provide all those on section 3C leave with digital proof of status (eVisas or equivalent). Given that:

eVisas were already being rolled out to many migrants with new grants of LLR; and
the Home Office’s long-term policy was to provide digital proof to all;

Cavanagh J inferred that there were “no negative consequences” for the Home Office in providing immediate eVisas for all those already on section 3C leave. That made the refusal irrational in his view.

The Court of Appeal held that this inference was not justified.

Underhill LJ pointed to:

The explicit evidence (from Mr Wright’s witness statement) that:
“the changes to digital status services to reflect section 3C extensions of leave cannot be retrospectively applied to all those who have a current in-time, pending application.”
This, read in context, indicated that retrofitting digital proof to the entire existing section 3C cohort was not practically feasible within the structure and sequencing of the Home Office’s digital transformation programme.
The two dimensions of gradualism in the Home Office’s plan:
- eVisas only issued at points of new grants of primary leave (not mid-stream); and
- roll-out route by route over a period (January 2023 – December 2024), rather than all categories at once.
The scale of the task: with hundreds of thousands of people on section 3C leave at any given time, “it is hardly implausible” that the existing timetable could not simply be abandoned in favour of an immediate, universal eVisa programme for all 3C migrants.

Importantly, the Court stressed the allocation of the evidential burden in a rationality challenge:

The onus lay on the claimants to demonstrate that the Secretary of State’s approach was irrational.
The High Court’s reasoning effectively reversed this burden, treating the absence of detailed, costed justification as fatal to the government’s case, even though the claimants had not pleaded or evidenced any route-specific or system-design alternative showing that universal, immediate eVisa coverage for 3C leave was realistically achievable.
Where the unreasonableness is not obvious on its face, and depends on questions of administrative feasibility and prioritisation, it is difficult for a rationality challenge to succeed without substantial positive evidence from the claimants.

5.1.5 Adequacy, Not Perfection: ECS, LCS and Status Enquiries

The Court recognised that the ECS and LCS systems, and other status-enquiry channels for NHS Trusts, DWP, DVLA and the Student Loans Company, are imperfect:

They do not provide instantaneous verification;
They depend on the third party’s willingness to initiate checks; and
They are occasionally slow or non-responsive, with some documented harm to migrants.

However, the key rationality point is that:

These systems are significant mitigations of the risks created by the hostile environment; and
Rationality does not require perfection – only that a policy falls within the range of reasonable responses, bearing in mind competing priorities and resource constraints.

Underhill LJ concluded that, while the claimants had demonstrated real and concerning problems, the design of the documentation and checking architecture did not cross the high threshold of Wednesbury irrationality.

5.2 The Padfield Principle: Scope and Limits

5.2.1 What is the Padfield Principle?

In Padfield v Minister of Agriculture [1968] AC 997, the House of Lords held that a minister cannot use a statutory discretion so as to frustrate the policy and objects of the Act. In later cases – notably Chetnik, Spath Holme, GC, M v Scottish Ministers, Patel, Rights of Women, and DMA – the principle has been used to review how specific statutory powers are exercised.

As summarised in De Smith, public authorities must:

exercise statutory powers in accordance with the policy and objects of the statute; and
not for collateral or extraneous purposes.

5.2.2 Why Padfield Did Not Apply Here

The claimants argued that, by failing to document section 3C leave in a way that enabled immediate demonstrability, the Secretary of State had thwarted the purpose of the immigration legislation, particularly section 3C and the hostile environment framework. They sought to characterise this as a classical Padfield-type misuse (or non-use) of statutory powers.

Both Cavanagh J and the Court of Appeal rejected that approach. The key points are:

No specific statutory power to document section 3C leave
Unlike in the typical Padfield line of cases, there is here no explicit statutory power or discretion directing how section 3C leave should be documented:
- Section 3C itself simply provides for automatic extension of leave; it is silent as to documentation.
- The power to issue BRPs or operate eVisas arises from more general legislation and is exercised through policies and implied administrative functions under the 1971 Act.
The Secretary of State’s decisions about whether and how to give documentary proof to those on section 3C leave are therefore made under her “ancillary and incidental administrative powers”, not a discrete statutory power expressly conferred for that purpose.
Padfield is conceptually tailored to specific statutory discretions
Underhill LJ endorsed Cavanagh J’s view that Padfield is not a free-floating principle applicable to all exercises of executive power, but a tool for construing and controlling particular statutory powers. Applying it to an undifferentiated mass of implied administrative powers would be “awkward and artificial” and would blur the boundary between Padfield and ordinary Wednesbury review.
General implied powers are controlled primarily by rationality and legality
Following New London College, the Secretary of State’s implied powers must not be exercised in a way that is inconsistent with the 1971 Act and the Immigration Rules. That is a basic legality constraint, not, as Ms Harrison attempted to argue, a straight transposition of the Padfield scheme. The appropriate public law control in this context is rationality (Wednesbury) and, where relevant, fundamental rights or equality duties, rather than Padfield.

The decision is therefore significant in ring-fencing Padfield to its traditional domain: cases where a specific statutory power is at issue. Where the grievance concerns the way the executive uses its broad, implied administrative machinery in the immigration field, the claim will generally be analysed as a rationality challenge rather than a Padfield claim.

5.2.3 Even If Padfield Applied, No Frustration of Statutory Purpose

Underhill LJ added that, even if Padfield were in play, he did not accept that the Secretary of State’s approach to documenting section 3C leave frustrated any statutory purpose. Consistent with his earlier analysis on legislative purpose, Parliament’s objective – that lawfully present 3C migrants enjoy and can effectively claim their rights – did not entail an obligation to provide immediate, digital, self-demonstrating proof.

5.3 Section 55 BCIA 2009: Best Interests of Children

5.3.1 The Structure of Section 55

Section 55 has two main components:

Section 55(1): duty to make arrangements
The Secretary of State must “make arrangements for ensuring” that immigration, asylum and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK (often summarised as a duty to treat their best interests as a primary consideration, reflecting Article 3 UNCRC).
Section 55(3): duty to have regard to guidance
Those exercising those functions (Home Office officials, contractors, etc.) must have regard to guidance issued by the Secretary of State for that purpose. The main guidance is Every Child Matters (2009).

In PRCBC v SSHD [2021] EWCA Civ 193, the Court made clear that:

The duty applies to both individual decisions and policy or rule-making functions (PRCBC [70(iii)]);
Best interests are a primary consideration, not an automatic trump (PRCBC [70(iv)]); and
The decision-maker must identify and weigh children’s best interests against other considerations (PRCBC [70(v)]).

5.3.2 The High Court’s Approach

Cavanagh J held that:

The Secretary of State had “decided not to provide documentary proof to all those on section 3C leave” (based on concessions in argument);
This decision was a function in relation to immigration within section 55(2)(a);
The absence of proof could adversely affect children:
- as applicants themselves; and
- as dependants of adults who lose or are denied work, housing or benefits, with knock-on welfare effects;
There was no evidence that the Secretary of State had considered those impacts when taking the decision; indeed, until very recently, it had been contested that section 55 applied to the design of section 3C documentation at all;
Publication of Every Child Matters did not of itself discharge the Secretary of State’s duty, since that guidance:
- is directed mainly at caseworkers and contractors handling individual decisions; and
- does not purport to deal with the Secretary of State’s general administrative and policy functions about documentation.

Cavanagh J therefore found a breach of section 55.

5.3.3 The Court of Appeal’s Concerns and the Relevance of DM

The Court of Appeal did not finally decide ground 2. Instead, it identified analytical gaps which it considered needed to be revisited in light of the more recent decision in R (DM) v SSHD [2025] EWCA Civ 1273.

Although the full text of DM is not set out, Underhill LJ summarised two key aspects relevant here:

The need to identify with specificity the decision (or decisions) which attract the section 55 duty (DM [106–110]); and
The Court’s scepticism about challenges directed at the “ongoing operation” of a system, as distinct from identifiable decisions (DM [126–128]).

Applied to this case, those principles raise several questions:

What exactly was the impugned decision?
The High Court proceeded on an agreed formulation that the Secretary of State had “decided not to provide documentary proof to all those on section 3C leave” – but:
- When was this decision taken?
- By whom – the Secretary of State personally, a senior official, a team?
- Is the challenge to a specific historical decision, or to the continuing operation of the gradual eVisa roll-out plan?
Section 55(1) vs 55(3)
If the decision was taken:
- by the Secretary of State herself, the focus is on whether she made appropriate “arrangements” under s55(1), including issuing adequate guidance; or
- by officials exercising delegated functions, the analysis shifts more naturally to s55(3) and whether Every Child Matters was followed.
This distinction matters both for legality and for the appropriate remedy.
Impact on children via adults
Unlike most section 55 cases, this policy is not child-specific. Instead, it affects children derivatively through harms to their parents’ work, housing and welfare. The Court wishes to consider whether and how that indirect impact shapes the intensity and modality of the section 55 duty.
Interaction with the Wednesbury finding
The Court also queries whether, given its conclusion that the documentation policy is not irrational, it nonetheless remains appropriate to grant any section 55-based relief (or whether section 31(2A) Senior Courts Act 1981, which allows refusal of relief where the outcome would not have been substantially different, might apply).

These questions remain open at the time of this judgment. However, the Court’s approach signals a more structured, decision-specific and realistic deployment of section 55 in systemic challenges. Claimants will need to:

pinpoint the actual policy decision(s) they say were taken in breach of section 55; and
show what a proper section 55 analysis at that point would likely have changed in practice.

6. Complex Concepts Explained

6.1 Section 3C Leave in Plain Terms

Imagine your residence permit (LLR) is like a fixed-term work contract. You apply in time for renewal, but HR (the Home Office) is very slow. Section 3C says:

Your contract automatically continues on the same terms until HR finally decides on your renewal (and any internal appeal process is over), even if the date on the original contract has passed.
You do not get a new contract document at that moment; the continuation happens “by operation of law”.

That continued but undocumented status is section 3C leave. You are lawfully present, but you cannot easily prove it.

6.2 Wednesbury Unreasonableness

“Wednesbury irrationality” is a very high hurdle. It does not mean:

that a decision is harsh; or
that a different decision would have been better; or
that the decision causes real hardship.

It means the decision is so unreasonable that no reasonable authority acting lawfully could have adopted it. Courts are especially cautious about finding irrationality where:

large-scale systems are being designed or reformed; and
resource allocation, technology roll-outs or prioritisation of competing policy goals are involved.

6.3 The Padfield Principle

Padfield is about how specific statutory powers must be used. If Parliament gives a minister a discretion (say, to set a rent cap, or to appoint an investigative committee), the minister must exercise that power in a way that promotes the Act’s objectives; they cannot use it to sabotage or evade Parliament’s scheme.

This case clarifies that Padfield does not generally apply to implied, administrative powers – such as the broad power to develop and run immigration status documentation systems. Those are policed by rationality, legality and rights-based review, not by a Padfield analysis of a specific statutory discretion.

6.4 Section 55: Best Interests of Children

Section 55 requires the Home Office to:

Arrange its systems so that immigration decisions are made with children’s best interests as a primary consideration; and
Ensure that caseworkers and others follow guidance which instructs them to treat children’s best interests as a primary factor in each relevant decision.

It does not guarantee the outcome children would prefer, but it requires a serious, structured balancing exercise with their welfare clearly in the foreground.

6.5 eVisas and Digital Proof

An eVisa is not a visa in your passport. It is a record in the Home Office’s database that:

stores your immigration status and conditions in real time;
allows you to login to see your own status; and
allows you to give a “share code” to others (employers, landlords, universities) to check your status instantly online.

For someone whose leave is extended by section 3C, an eVisa can, in principle, show that this current, extended status is still in force today. That is why eVisas are so attractive as a solution to the documentation problem – but they require complex IT builds and migration of legacy records, and cannot simply be conjured up overnight for hundreds of thousands of existing cases.

7. Impact and Future Significance

7.1 For Migrants on Section 3C Leave

The immediate practical effect of this judgment is that:

There is no general public law duty compelling the Secretary of State to issue eVisas, or equivalent digital proof, immediately to all those on section 3C leave.
Migrants on section 3C leave remain largely reliant on:
- the Employer Checking Service for right to work;
- the Landlords Checking Service for right to rent;
- other Home Office verification channels for benefits, healthcare, banking, driving and student finance.

As the eVisa system matures and covers more immigrants at the point of primary grants of leave, the problem will reduce:

New grants of LLR > 6 months already come with eVisas; when those grants later expire, any subsequent section 3C leave should be visible in real time.
But those whose immigration history pre-dates the eVisa transition may still face significant periods on section 3C leave without digital proof until their future grants are digitised.

From a rights perspective, the judgment confirms that systemic hardship alone does not automatically generate a public law obligation to adopt the best conceivable solution. It may be that future challenges – especially where discrimination or Convention rights are in play – will explore alternative avenues for relief. But as a matter of pure rationality, the bar is high.

7.2 For the Home Office and System Design Challenges

The decision gives the Home Office some comfort that:

Courts will not lightly second-guess the sequencing and design of major digital transformation programmes in the absence of clear evidence of irrationality;
The existence of better or more generous policy options elsewhere in the system (e.g. partial eVisa roll-out) does not by itself render current arrangements for other cohorts unlawful; and
Claimants bear the burden of showing that alternative designs are realistically implementable, not merely desirable.

At the same time, the Court’s reasoning suggests that:

Where hardship is significant and well documented, any complete absence of mitigation mechanisms or any obviously arbitrary features of a system might still expose the Home Office to a successful irrationality challenge;
There remains considerable potential for section 55-based or rights-based scrutiny of new or revised policies, particularly where children or protected groups are disproportionately affected.

7.3 For Public Law Doctrine

Doctrinally, the case does valuable clarifying work:

Rationality remains demanding – It is not enough to show that a policy causes real hardship and that there exists a better policy option. Claimants must show that the government’s actual choice is outside the bounds of reasonableness, considering feasibility, resources and competing priorities.
Padfield is cabined – The Court firmly locates Padfield in the domain of specific statutory discretions. The temptation to treat Padfield as a general “statutory purpose” control against which all governmental policies can be measured is resisted. Instead:
- Implied or ancillary powers are generally controlled by Wednesbury irrationality and by direct legality constraints (consistency with statutes and rules) and rights/equality duties.
Section 55 is becoming more structured – Although unresolved here, the Court’s reference to DM and its invitation for further submissions indicate:
- a demand for clear identification of the decision being attacked; and
- a degree of scepticism towards attempts to deploy section 55 against the mere ongoing state of affairs, as opposed to the making and revising of specific policies or decisions.

7.4 Litigation Strategy in Systemic Immigration Cases

For NGOs and strategic litigators, this judgment offers some practical lessons:

Plead concrete alternatives – If the challenge is to system design, it is not enough to say “X causes harm and Y would obviously be better”. The claim should:
- identify a specific alternative system or timetable, and
- explain why it is realistically implementable within administrative and resource constraints.
Choose the legal vehicle carefully – Where the complaint is about the impact on children, discrimination, or rights under the ECHR, remedies may be more tractable via section 55, the Equality Act or Convention rights rather than via pure Wednesbury.
Pinpoint decisions for section 55 – Following PRCBC, DM and this case, any section 55 argument should:
- specify which policy decision(s) (e.g. to phase eVisa roll-out in a particular way) are impugned;
- show that children’s best interests were a primary consideration that was either overlooked or clearly outweighed without adequate justification; and
- demonstrate what a lawful section 55 analysis would likely have changed in practice.

8. Conclusion

Refugee and Migrant Forum of Essex and London v SSHD is a significant decision at the intersection of immigration control, digital status, and public law standards of review.

On the facts, the Court of Appeal accepts that many migrants on section 3C leave face real, sometimes severe, hardships in navigating the hostile environment without immediate proof of lawful status. Yet it nevertheless concludes that:

The Secretary of State’s decision not to provide immediate eVisas (or similar digital documentation) to all those currently on section 3C leave was within the range of reasonable policy choices, given the staged plan for digitalisation and the existence of mitigation mechanisms like ECS and LCS;
The Padfield principle does not extend to reviewing such uses of broad implied administrative powers, and in any event there was no frustration of statutory purpose; and
The alleged breach of section 55 BCIA 2009 requires more precise analysis of the decision(s) at issue in light of DM, and is therefore held over for further submissions.

In doctrinal terms, the case:

reinforces the stringency of Wednesbury irrationality in system design challenges;
confines Padfield to its proper sphere of specific statutory discretions, resisting its use as a general-purpose tool for reshaping administrative policy; and
points towards a more decision-focused and nuanced use of section 55 in future systemic immigration litigation.

In policy terms, the moral pressure remains clear: the hostile environment makes documentation of lawful status practically indispensable, and the evidence shows that many on section 3C leave continue to suffer avoidable hardship. But the Court of Appeal’s message is that the route to addressing those injustices will lie primarily in political decision-making and careful rights-based argument, rather than in stretching the doctrine of irrationality to compel the immediate universal provision of digital proof.