Date: Feb 18, 2026

Section 55 BCIA 2009 Claims Must Identify the Impugned Decision: The Duty Is Procedural and Relief Must Not Predetermine the Outcome

1. Introduction

This Court of Appeal judgment in Refugee And Migrant Forum of Essex And London & Anor, R (On the Application Of) v Secretary of State for the Home Department concerns difficulties faced by migrants who are on “section 3C leave” (leave extended by statute while an in-time application/appeal remains pending) but lack documentation to prove that status to third parties. The issue arose during the Home Office’s phased move to digital proof of status (“eVisas”).

The appeal followed an earlier Court of Appeal judgment dated 19 November 2025 (“the November judgment”), which adjourned the second ground of appeal for further submissions. The adjourned ground alleged breach of the statutory duty in section 55 of the Borders, Citizenship and Immigration Act 2009 (the duty to have regard to the need to safeguard and promote the welfare of children in the UK) when the Secretary of State implemented eVisas in a way that did not provide immediate digital proof to those already on section 3C leave and which prioritised other groups first.

The key procedural controversy was that the claim as pleaded did not identify the specific “decision” (or policy decision) said to trigger section 55; and the relief granted at first instance framed unlawfulness as the substantive failure to provide digital documentation, rather than as a flaw in the decision-making process.

2. Summary of the Judgment

The Court of Appeal allowed the Secretary of State’s appeal on ground 2 (the section 55 ground).
It held that the first instance order was defective because it treated breach of section 55 as unlawfulness of the outcome (“failing to provide the said digital document”), whereas section 55 imposes a process duty only.
The Court declined to salvage the section 55 claim by substituting a properly framed process-focused order (e.g., requiring re-taking of the relevant decision), because the claimants’ failure to identify the impugned decision in their pleadings caused real prejudice to the Secretary of State, including in relation to potential reliance on section 31(2A) of the Senior Courts Act 1981 and discretionary refusal of relief.
The Court emphasised that failure to identify the decision will not always be fatal in section 55 claims, but it was fatal on the facts here.

3. Analysis

3.1. Precedents Cited

(a) The “November judgment” (Court of Appeal, 19 November 2025)

The present judgment is expressly an adjunct to the November judgment. Two aspects of the November judgment were particularly influential:

Analytical starting point for section 55: the Court reiterated that identifying the specific exercise of functions (the “decision”) that attracts section 55 is foundational (the present judgment refers to this as “the correct analytical starting-point”).
Context of rationality and practicability: the Court relied on findings previously made about the practical difficulties of instant mass rollout of digital status to hundreds of thousands of people and on the mitigation measures the Secretary of State said were in place. Those findings fed into the Court’s assessment of prejudice and the likely “no substantial difference” arguments.

(b) R (DM) v Secretary of State for the Home Department [2025] EWCA Civ 1273, [2026] 1 WLR 351

The respondents expressly disavowed reliance on an argument discussed in R (DM) v Secretary of State for the Home Department [2025] EWCA Civ 1273, [2026] 1 WLR 351, namely that section 55 could be triggered by “the operation of a system” without an identifiable decision. This mattered because it narrowed the case: the respondents accepted they had to point to an actual discharge of functions (a decision/policy choice), making their pleading failure more acute.

(c) “Every Child Matters” (guidance)

The Court referenced the possibility (not ultimately argued through) that if a decision was taken by officials rather than ministers, the Secretary of State might contend that her section 55 obligation was met by promulgating guidance such as Every Child Matters. Although the point did not determine the outcome, it illustrated why identifying “what was decided, by whom, and when” is practically important: those facts can shape whether the duty is met and what evidence is required.

(d) Wednesbury and section 31(2A) Senior Courts Act 1981

Although the irrationality finding had been reversed in the earlier appeal stage, this judgment used that conclusion as part of the landscape: if the policy was not irrational, it becomes harder (though not impossible) to show that a section 55-compliant process would have produced a different decision. That, in turn, connects to:

Section 31(2A) Senior Courts Act 1981: the “no substantial difference” principle, allowing refusal of relief where it appears highly likely that the outcome for the claimant would not have been substantially different even if the legal error had not occurred.

3.2. Legal Reasoning

(i) Section 55 is a process duty; the remedy must reflect that

The Court treated as decisive the mismatch between (a) what section 55 requires and (b) what the declaration effectively compelled. Section 55 requires the decision-maker to discharge immigration functions “having regard” to children’s welfare. That is a procedural obligation—an obligation to take account of a mandatory consideration—rather than a duty to reach any particular substantive outcome.

On that basis, the Court held the first instance order was defective because it declared unlawfulness as a continuing failure to provide digital documentation, which practically assumed that a lawful section 55 process would necessarily produce the result “provide eVisas immediately to all on section 3C leave”. That is not what a section 55 finding entails: a lawful remedy would ordinarily quash the decision or declare it unlawful, requiring the decision to be retaken lawfully, without predetermining what the outcome must be.

(ii) A section 55 claim must identify (or at least properly plead) the impugned decision

The Court’s central procedural holding is that the claimants’ pleadings did not identify the decision/policy said to engage section 55. The claim form described only “ongoing breaches” and the SFG asserted a general failure to provide status documentation, without specifying the relevant exercise of functions. This drove two cascading consequences:

The Secretary of State reasonably understood the case as challenging purported decisions in individual cases when migrants moved onto section 3C leave, and responded on the basis that section 3C leave arises automatically by operation of law.
The case then shifted at the hearing when counsel for the Secretary of State conceded that a broader administrative “decision not to provide documentary proof to all those on section 3C leave” could be treated as an exercise of functions engaging section 55. The Court treated this as an unpleaded pivot.

(iii) Prejudice and the Court’s refusal to “repair” the claim at the appellate stage

Having found the order defective, the Court considered whether it should nevertheless substitute an appropriate section 55 remedy (i.e., one directed at retaking the relevant decision). It refused, primarily due to prejudice caused by defective pleading:

Section 31(2A) prejudice: had the relevant decision been clearly pleaded (immediate eVisas for all on section 3C leave and/or prioritisation for groups with dependent children), the Secretary of State would likely have advanced a fuller “no substantial difference” case and adduced fuller evidence.
Discretionary relief prejudice: by June 2024 the rollout was already well underway and due to complete by end 2024. Clear pleading would likely have prompted arguments (and evidence) that altering rollout midstream was impracticable and that relief should be refused or tailored.
Other potentially available defences: promptness/limitation and who made the decision (minister/official) might have been argued differently if the challenged decision had been properly identified from the outset.

The Court was careful to confine its reasoning: it did not adopt a rigid rule that failure to identify the decision is always fatal. It accepted that some section 55 claims may involve genuine uncertainty about what was decided, when, and by whom; in such cases pleading may proceed by inference and by seeking further information. But here, the Court held there was no good reason the decision could not have been pleaded (given public materials like the New Plan for Immigration and subsequent rollout details), and the pleading failure had concrete forensic consequences.

3.3. Impact

Pleading discipline in section 55 challenges: Claimants must identify the impugned “decision” or policy (or plead a coherent basis for inferring one) rather than plead a free-standing “ongoing breach” framed around an unfortunate state of affairs. This is likely to tighten case-management expectations in immigration judicial reviews involving section 55.
Remedial discipline: Courts should avoid declarations that effectively compel a substantive outcome under section 55. Relief should be framed to correct process error (retake the decision lawfully), leaving the decision-maker free to reach the same outcome if justified after proper consideration.
Greater role for section 31(2A): The judgment signals that where operational constraints and mitigation measures are evidenced, section 31(2A) may be a serious obstacle to obtaining relief for section 55 errors—particularly when the challenged policy is not irrational and the counterfactual (different outcome) is implausible.
Systemic-policy litigation: Challenges to phased digitalisation programmes (or other large public IT/administrative programmes) will likely need careful articulation of (i) what the legally relevant decision is (initial programme design, later prioritisation choices, or both) and (ii) what a lawful retake could realistically change.

4. Complex Concepts Simplified

Section 3C leave: A statutory extension of a person’s existing immigration leave while an in-time application (and any appeal/administrative review) is pending. It arises automatically by law.
eVisa / digital proof of status: An online record used to prove immigration status to employers, landlords, and others. The dispute concerned phased rollout and the lack of immediate coverage for people already on section 3C leave.
Section 55 Borders, Citizenship and Immigration Act 2009: A duty requiring the Secretary of State to have regard to the need to safeguard and promote the welfare of children when discharging immigration functions. It is about how decisions are made (considering children’s best interests), not guaranteeing a child-favourable outcome.
Process duty vs outcome duty: A process duty requires a lawful decision-making method (e.g., considering relevant factors). An outcome duty requires a particular result. Section 55 is a process duty.
Wednesbury unreasonableness: A high threshold for challenging decisions as irrational. The first instance irrationality finding had been reversed, shaping the Court’s view of whether a lawful process would likely change the outcome.
Section 31(2A) Senior Courts Act 1981: Even if a legal error is shown, the court may refuse relief if it appears highly likely the outcome would not have been substantially different without the error.
Respondent’s Notice: A procedural step used to uphold a judgment on different grounds. The absence of a Respondent’s Notice mattered to attempts to reframe the impugned decision on appeal.

5. Conclusion

The judgment establishes (and strongly reinforces) two practical propositions for section 55 litigation: first, section 55 claims must be anchored to a properly identified impugned decision (or a properly pleaded basis for inferring one), because otherwise the court and the public authority cannot fairly address evidence, timing, and relief; and second, because section 55 is a procedural duty, remedies must target defective decision-making processes and must not hardwire the substantive outcome.

While the Court acknowledged the importance of children’s welfare considerations in immigration administration, it refused to convert section 55 into a vehicle for substantive compulsion—particularly where the litigation was pleaded in a way that caused real forensic prejudice and where it was doubtful that a lawful section 55 process would have produced a different policy outcome.