Court Opinion Summary (Anonymised)

Factual and Procedural Background

The Appellant applied for indefinite leave to remain (ILR) in the UK under the Windrush Scheme. The Respondent refused the application. The Appellant sought judicial review of that refusal; Judge Sheldon dismissed the claim on 20 November 2024. Judge Sheldon held that the Respondent had unlawfully failed to consider whether to exercise discretion under section 3(1)(b) of the Immigration Act 1971 to waive the continuous residence requirement, breaching the non-fettering principle. Nonetheless, Judge Sheldon refused relief under section 31(2A) of the Senior Courts Act 1981 on the basis that it was highly likely the outcome would not have been substantially different. The Appellant obtained permission to appeal to this Court. An anonymity order for the Appellant's two children was continued by this Court at the Appellant's request, with no objection.

Legal Issues Presented

1. Whether the Respondent unlawfully failed to consider exercising discretion under section 3(1)(b) of the Immigration Act 1971 in respect of the Appellant's Windrush Scheme application (i.e. breach of the non-fettering principle).
2. Whether relief should have been refused under section 31(2A) of the Senior Courts Act 1981 because it was highly likely the outcome would not have been substantially different had the Respondent lawfully considered discretion.
3. Whether the Respondent could require the Appellant to use a particular application form or published LOTR procedure before treating a request for discretionary leave outside the Immigration Rules as valid.

Arguments of the Parties

Appellant's Arguments

• The Respondent failed to consider whether to exercise discretion to disapply the continuous residence requirement under section 3(1)(b) of the 1971 Act, contrary to the non-fettering principle.
• The Appellant contended that she has strong and subsisting ties to the UK and that the continuous residence requirement operates as a proxy for those ties; therefore, the discretion should be open to consideration even where strict continuous residence is not met.
• The Appellant argued there was no requirement of "historical injustice" to justify an exercise of discretion and that the Judge erred in treating historical injustice as decisive.
• It was submitted that there was no evidential basis for concluding it was "highly likely" the outcome would have been the same, so refusal of relief under section 31(2A) was inappropriate.

Respondent's Arguments

• By Respondent's Notice the Respondent advanced three alternative grounds for upholding Judge Sheldon's refusal of relief: (1) the Appellant ought to have applied using the formal LOTR procedure (e.g. Appendix FM or Form SET(O)); (2) the letter before claim did not amount to a valid request for discretionary LOTR; and (3) alternatively, the Respondent did consider discretion and reached the view that published Windrush Scheme terms should apply.
• The Respondent relied on administrative efficiency and published LOTR guidance to justify requiring application by a specified form.
• In the High Court the Respondent relied on material suggesting that the Appellant's immigration history differed from siblings who had been granted ILR, to argue that it was highly likely the same outcome would have been reached.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Munir) v Secretary of State for the Home Department [2012] UKSC 32	Source of the Secretary of State's wide discretionary power under the Immigration Act 1971 to grant leave outside the Immigration Rules.	The court relied on Munir to explain that the Secretary of State has broad statutory discretion to grant leave outside the Rules, subject to public law constraints.
R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33	Where a code or policy imposes requirements that lead to refusal if not met, it is in substance a rule within s.3(2) of the 1971 Act.	The court cited Alvi to distinguish between rules that must be laid before Parliament and policies outside the Rules; certain requirements must be in the Immigration Rules.
R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12	The non-fettering principle: a policy may be lawful but decision-makers must be willing to depart from it where circumstances warrant.	The court relied on Lumba to emphasise that the Respondent must bring discretion to bear in individual cases and not fetter it by rigid policy application.
R (West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441	The non-fettering principle concerns substance (willingness to entertain exceptions), not merely policy wording.	The court applied West Berkshire to show that unqualified wording does not necessarily indicate fettering if in reality exceptions are entertained.
R (KA) v Secretary of State for the Home Department [2022] EWHC 2473	Illustrative example where counsel conceded willingness to waive a procedural requirement, consistent with non-fettering.	The court cited KA to support the proposition that procedural requirements may be waived and that the non-fettering principle allows consideration of exceptions.
R (AB) v Secretary of State for the Home Department [2018] EWCA Civ 383	Summary of non-fettering principle in immigration context and relation to leading authorities (British Oxygen; Ali (Iraq)).	The court used AB to summarise the legal position: policies may be lawful but decision-makers must listen to claims outside them; the Rules coexist with residual discretion.
Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60	The Immigration Rules are administrative practice laid before Parliament but are not themselves subject to the non-fettering principle in the usual sense; residual discretion remains.	The court invoked Ali (Iraq) to explain the constitutional status of the Rules and that residual discretion outside the Rules is subject to non-fettering.
British Oxygen Co Ltd v Minister of Technology [1971] AC 610	Leading authority that those who exercise statutory discretion must not "shut their ears" to individual cases; must be willing to listen to exceptions.	The court relied on British Oxygen as a classic statement of the non-fettering principle.
R (Sayaniya) v Upper Tribunal [2016] EWCA Civ 85	The Immigration Rules are not subject to non-fettering; mandatory Rules operate as intended, but residual discretion remains.	The court cited Sayaniya to confirm the coexistence of mandatory Rules and a residual discretion subject to non-fettering.
Patel v Secretary of State for the Home Department [2013] UKSC 72	There is no "near miss" principle in immigration law in the Article 8 context; distinguishes Article 8 decisions from discretionary LOTR.	The court accepted Patel's principle but explained it does not negate the duty to consider discretionary LOTR outside the Rules.
R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214	Interpretation and application guidance for section 31(2A) of the Senior Courts Act 1981; modifies the old Simplex test.	The court relied on Plan B Earth for guidance on the high threshold in s.31(2A) and the caution against second-guessing merits.
Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] (cited)	Earlier formulation that a claimant need not show that the authority would have reached a different conclusion, only that it would not "necessarily" have reached the same decision.	The court described how the Simplex test was modified by the 2015 amendment to s.31, as explained in Plan B Earth.
R (Public and Commercial Services Union) v Minister for the Cabinet Office [2018] ICR 269	Observation that the threshold under the amended s.31 remains high.	The court cited this authority to reinforce that s.31(2A) sets a high threshold before relief may be refused.
R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489	Further guidance on s.31(2A): focus on the impact of the error on the decision-making process; caution against predicting merits.	The court relied on Bradbury to stress that courts should not try to predict what a decision-maker would have done and that the focus is on process impact.
R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA Civ 488	Reiterates high threshold of s.31(2A); emphasises need for clear evidence of decision-making process where s.31(2A) is relied upon.	The court cited Greenfields for the proposition that the public authority should provide clear witness evidence if relying on s.31(2A).
Ladd v Marshall [1954] 1 WLR 1489	Criteria for admitting fresh evidence on appeal.	The court referenced Ladd v Marshall in considering whether late-produced Home Office documents should be admitted on appeal.

Court's Reasoning and Analysis

The Court conducted a structured analysis:

1. Acceptance of the High Court finding on unlawfulness: The Court agreed with Judge Sheldon that the Respondent had failed to consider exercising her residual discretion under section 3(1)(b) of the 1971 Act, thereby breaching the non-fettering principle. This conclusion was based on a fair reading of the correspondence between the parties, notably a reply which stated that "discretion was not considered appropriate to apply as mandatory requirements have not been met," which the Court read as a causal statement indicating failure to consider discretion.
2. Respondent's Notice points (grounds (2) and (3)): The Court rejected the Respondent's alternative arguments that (a) the letter before claim was not a request to consider discretion, and (b) the Respondent had in fact considered discretion and decided to apply the published Scheme. The Court held the correspondence demonstrated the Appellant had invited consideration of discretion and that the Respondent's reply did not show an exercise of discretion.
3. Form and procedure requirement (ground (1) in Respondent's Notice): The Respondent argued that requests for discretion must be made by particular forms (e.g. Appendix FM or Form SET(O)) under LOTR guidance. The Court analysed the LOTR guidance and the Windrush Scheme documents. It concluded that while the Respondent may have legitimate procedural expectations, rigid insistence on a particular form would offend the non-fettering principle. The Windrush Scheme itself operates outside the Rules and prescribes its own application form and no fee; the Court accepted that the Appellant had used the Windrush application form that most closely matched her circumstances and that procedural formality cannot be applied inflexibly so as to preclude consideration of discretion.
4. Section 31(2A) analysis and refusal of relief below: The Court reviewed the statutory test in s.31(2A) and authoritative guidance (Plan B Earth, Bradbury, Greenfields). The Court emphasised that s.31(2A) requires a high threshold and cautions against courts venturing into "forbidden territory" of second-guessing merits. The Court found Judge Sheldon erred in applying s.31(2A) because he effectively speculated about how the Respondent would have exercised discretion, without proper evidential basis (no Home Office witness evidence on how discretion would have been exercised). The Court concluded the High Court had fallen into the error of assessing merits rather than confining itself to lawfulness of the decision-making process and its consequences.
5. Application to fresh evidence: The Respondent sought to adduce additional internal Home Office emails produced after the High Court hearing. The Court expressed doubt about admitting them (citing Ladd v Marshall) because they could have been obtained earlier and the Appellant had requested relevant material; further, the Court was not persuaded that the new material established that it was highly likely the outcome would have been the same.

Holding and Implications

APPEAL ALLOWED

Holding: The Court allowed the appeal. It agreed that the Respondent had unlawfully failed to consider exercising discretion under section 3(1)(b) of the Immigration Act 1971 (breach of the non-fettering principle) and held that the High Court was wrong to refuse relief under section 31(2A) of the Senior Courts Act 1981.

Implications:

• The High Court decision refusing relief under s.31(2A) is overturned and the matter is remitted for lawful reconsideration by the Respondent (i.e. quash and remit). The Court emphasised that it is not pre-judging the merits of any reconsideration; the Respondent may lawfully maintain the view that the Appellant does not qualify under the Windrush Scheme or other rules.
• The decision reinforces that policies and procedural requirements (including LOTR forms and guidance) must not operate so rigidly as to fetter the residual statutory discretion: decision-makers must be willing to consider exceptions and must give proper consideration to representations that an applicant falls within the spirit of a concessionary scheme.
• No new precedent beyond application of established principles was created; the Court applied existing authorities on non-fettering and on the high threshold in s.31(2A), stressing the need for proper evidential basis if a public authority seeks to rely on s.31(2A) to refuse relief.

Disposition

The appeal was allowed. The Appellant's challenge to the Respondent's refusal was upheld in part — specifically on the ground of failure to consider exercising discretion — and the previous decision was quashed and remitted for reconsideration in accordance with law.

Administrative Notes

This summary is based exclusively on the provided opinion. All personal names and other identifying details in the source have been anonymised to conform with the required format.