Court of Appeal finds no legal duty on Home Secretary to provide people on 3C leave proof of their immigration status, despite the harm this causes

In June 2024, the High Court ruled that the Home Secretary’s failure to provide people on ‘3C leave’ – an automatic form of immigration status when a person applies in-time to extend their visa –  with the digital means to prove their immigration status was unlawful. The judge specifically held that the Home Secretary had long been on notice about the problems people on 3C leave faced in being wrongly caught up in the hostile environment measures and was acting irrationally by not providing immediate proof of their immigration status and ensuing rights.

In September 2022, RAMFEL published a report estimating that 40,000 people a year on 3C leave could be wrongly suspended from or denied access to employment. Despite this, the Home Secretary took no steps to address the problem. Ms Adjei, a former RAMFEL client who had twice been suspended from her job as a social care assistant whilst on 3C leave, and RAMFEL issued judicial review proceedings to challenge this failure and compel the SSHD to take action. The High Court agreed with them, concluding that:
 
“this is a case in which the SSHD can take a straightforward step to avoid hardship for a substantial number of people, with no negative consequences for the Home Office or for the immigration regime.” [211]
 
The consequence was that the Home Secretary would now have to provide people on 3C leave with digital proof of their status.

Regrettably, rather than introduce this modest amendment that would protect thousands of people on 3C leave, the government applied to suspend the effect of the High Court judgment and appealed to the Court of Appeal. It was argued that even if existing mechanisms designed to assist people on 3C leave prove their immigration status are not working effectively, it is the Home Office’s decision alone whether to change them and there is no legal obligation to change their current plans for a gradual roll out of eVisas.

In June 2025, the Court of Appeal hearing took place. Judgment will be in two parts. The first part of the judgment was handed down today. The 3-judge panel ultimately overturned the High Court’s conclusion on irrationality, finding there was no legal duty on the Home Secretary to issue digital proof of status to people on 3C leave. The Court though expressly stated that they “do not for a moment question the evidence that in a substantial number of cases migrants on section 3C leave suffer real harm from not being able to demonstrate their status immediately.” [67] The Court also agreed with RAMFEL that people on 3C leave “should have an effective means of demonstrating that entitlement to third parties” [56] and:
 
“it would be better to provide a means of verification which was straightforward and immediate than one that depended on having to make enquiries with the Home Office”. [58]
 
Ultimately, the Court held that the Home Office’s assertion of practical difficulties in providing digital proof of status to those on section 3C leave straight away, was enough to mean it was rational and lawful not to do so yet.

Despite its findings on the obligation to provide proof to everyone on section 3C leave, the Court of Appeal clearly acknowledged the serious harm that can occur as a result of this system with people wrongly denied work, accommodation, student loans, university places and disability benefits, which the Home Secretary herself did not dispute. Individuals in that position can continue to request that proof from the Home Office and challenge delay and refusals to do so. 

The government’s approach shows that they, like their predecessors, have learned little from the Windrush scandal, with it primarily people on lower incomes from Africa, south Asia and the Caribbean who are likely to suffer detriment whilst on 3C leave. As with many other aspects of the “hostile environment”, the intersection between racism, and classism is clear and particularly for women, with children, in insecure employment. Ms Adeji had two children and was employed by a care agency when her shifts were stopped, becoming dependent upon food banks and charity from friends and her church.  

Whilst some people on 3C leave have now been issued with proof of their status, it is a sad indictment of successive government’s approaches to immigration, that this has not been made available to all. It is hoped that the Home Secretary will now provide an effective means for all people on 3C leave to prove their status to protect them from being wrongly trapped by the hostile environment. Following this week’s announcement that refugees will now face having to renew their leave to remain 8 times over 20 years before qualifying for permanent immigration status, thus spending significant periods on 3C leave, these modest changes to ensure immigration status can be promptly established are more crucial than ever. As the judge in the High Court pointed out – it is a question of implementing what the government itself had agreed to do.  That it has chosen not to prioritise those most at risk of hardship, particularly children, is still to be considered by the Court. 

The Court has requested further information from RAMFEL and the Home Secretary in relation to this second ground of appeal, which concerns the Home Secretary’s duty to consider the best interests and welfare of the child in decision making (section 55 of the Borders, Citizenship and Immigration Act 2009). A further judgment is expected in relation to that issue in the New Year.
 
RAMFEL’s Head of Campaigning, Nick Beales, stated:

“Whilst this verdict is disappointing, what is clear is that the Court recognised the harm and hardship being caused by the government’s continued refusal to give everyone on 3C leave proof of their immigration status. Though, according to the Court, the government is not  under a legal duty to provide these people immediate proof of status, this does not mean they should just continue ignoring this issue as they know the harm and very real hardship it is causing.

 

The government’s determination to continue fighting this case in the courts at great public expense, rather than investigating and resolving it, shows that the harm being caused to workers, students, carers and children up and down the country is simply not a priority to them.

Regardless of this outcome, as a matter of policy the government must start issuing all people on 3C leave proof of their immigration status. They must also scrap the hostile environment framework, as it has been shown time and time again that it fails to distinguish between people who do and who do not hold leave to remain in the UK. It acts to disrupt and undermine the lives of those with immigration status who are contributing to their communities in the UK.”

NOTE TO EDITORS:
RAMFEL is a legal charity that supports vulnerable migrants living, providing casework support, on a range of legal issues, including immigration and asylum, destitution support, and crisis intervention services.

Ms Adjei is an individual who was adversely impacted by the SSHD’s failure to issue her with any means to prove her legal immigration status and right to work whilst she was on 3C leave, suffering periods of suspension from employment which caused real hardship to her and her two children.
RAMFEL and Ms Adjei were represented by Janet Farrell and Christina Bodenes of Bhatt Murphy solicitors, instructing Stephanie Harrison KC of Garden Court Chambers and Shu Shin Luh of Doughty Street Chambers.

For media queries, please email Nick Beales at nick.beales@ramfel.org.uk.