Esmail v Secretary of State for the Home Department

Factual and Procedural Background

The appellant is a naturalised British national residing in Belfast who sought entry visas for several family members living in Sudan, aiming for their reunification in the United Kingdom. The family members included the appellant's parents, sister, sister's children, and initially a brother-in-law who later relocated to Northern Ireland. The appellant's solicitors wrote to the Secretary of State requesting visas "outside the Immigration Rules" (LOTR) on compassionate and compelling grounds. The Secretary of State refused this request, stating that such applications must be made using the appropriate forms and fee payments, and that certain claims could not be made from outside the UK. The appellant challenged this refusal by judicial review, which was dismissed by the High Court. The appellant subsequently appealed to the Court of Appeal.

Legal Issues Presented

1. Whether the Secretary of State unlawfully fettered the discretion under section 3(2) of the Immigration Act 1971 by refusing to consider the appellant's request for leave outside the Immigration Rules (LOTR) for family reunification.
2. Whether the Secretary of State was required to consider waiving procedural requirements such as use of application forms, biometric enrolment, visa application centre attendance, and fee payments before considering the substantive LOTR request.
3. Whether the refusal letter and related decisions constituted an unlawful fetter on the Secretary of State’s discretion by treating the request as impossible to consider.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State has a discretion regarding the form in which applications for leave outside the Immigration Rules may be made.
• The impugned decision failed to recognise this discretion and unlawfully fettered it by refusing to consider the appellant’s request submitted by letter.
• The refusal to consider the request was unreasonable and failed to exercise discretion in a lawful manner.

Respondent's Arguments

• The appellant sought LOTR by letter rather than the appropriate application form as required by policy and legislation.
• The Secretary of State acknowledged the discretion to depart from procedural requirements and to grant LOTR but was entitled to require the normal application process to be followed.
• The refusal was lawful because the appellant did not request waivers of procedural requirements or submit a valid application; thus, no unlawful fetter of discretion occurred.
• The High Court’s decision was correct and no legal error was identified by the appellant.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the foundational public law principle from British Oxygen that statutory discretion must not be fettered by rigid policies or refusal to consider applications. The court then examined the appellant’s request, which was made solely by letter seeking visas outside the Immigration Rules without completing the required application forms, biometric enrolment, fee payment, or attendance at Visa Application Centres. The Secretary of State’s refusal letter correctly identified that such applications must be made via the prescribed procedures and that claims such as asylum or protection cannot be made from outside the UK.

The court found that while the Secretary of State possesses discretion to waive procedural requirements and to grant leave outside the Immigration Rules, this discretion is triggered only upon receipt of a valid application or request that complies with procedural rules or is accompanied by a request for waiver supported by evidence. In this case, no such request or evidence was provided before or with the letter seeking LOTR. The Secretary of State was therefore entitled to require the formal application process to be followed before exercising discretion on the substantive merits.

The court rejected the appellant’s argument that the refusal letter unlawfully fettered discretion, noting that the letter did not preclude the exercise of discretion but rather indicated that the procedural preconditions for its exercise had not been met. The court also endorsed the legal principle from R(AB) that the Secretary of State is not required to consider acting outside the Immigration Rules on the public authority’s own motion absent a specific request.

The court further emphasized the importance of the immigration system’s need for formal, structured, and orderly application processes to ensure fairness, consistency, and administrative efficiency. The appellant’s failure to comply with or seek waiver of these requirements meant that the Secretary of State was not obliged to consider the substantive LOTR request.

Finally, the court noted that the appellant’s solicitors’ letter was the sole request made and that the Secretary of State’s response was appropriate and proportionate in the context of the established immigration framework. The absence of any compelling exceptional facts or factors to justify departure from procedural requirements was also highlighted.

Holding and Implications

The court DISMISSED the appeal and affirmed the judgment and consequential order of the High Court.

The direct effect of this decision is that the Secretary of State’s refusal to consider the appellant’s LOTR request made by letter without compliance with procedural requirements was lawful and did not constitute an unlawful fetter of discretion. The ruling reinforces the principle that discretion to grant leave outside the Immigration Rules is contingent upon a valid application or request that meets procedural prerequisites or is accompanied by a proper request for waiver. No new precedent was established; rather, the decision affirms established public law and immigration principles emphasizing procedural formality and discretion exercised in accordance with statutory and policy frameworks.