In the recent case of R(on the application of Hippolyte) v Secretary of State for the Home Department [0] EWCA Civ 1493, the Court of Appeal allowed an appeal against a decision of Sheldon J dismissing Ms Hippolyte’s claim for judicial review. While the Judge had rightly found that the Secretary of State for the Home Department (SSHD) had failed to exercise her discretion when refusing the appellant’s application under the Windrush Scheme, he had wrongly refused relief in reliance on Section 31(2A) of the Senior Courts Act 1981.

The appellant had made numerous applications for leave to remain (“LTR”). Her most recent application had been made under the Windrush Scheme and was refused because she did not meet one of the mandatory requirements of that Scheme – being continuously resident in the UK for a specified period. In its response to the appellant’s Pre-Action Protocol letter, which included an allegation of a failure to exercise discretion, the SSHD stated that it had not been considered appropriate to apply discretion in the appellant’s case because one of the mandatory requirements had not been met. The High Court found that this approach constituted an unlawful fettering of discretion pursuant to the non-fettering principle of public law but went on to refuse to grant relief on the basis that it was highly likely that the outcome of the appellant’s application would not have been substantially different if the error of law identified had not occurred. The Court of Appeal allowed the appeal against that decision. Its judgment contains a restatement of the non-fettering principle in public law, making clear that:

• The principle means that there can be no factors that the decision maker can close their ears to. It requires the decision maker to at least be willing to consider whatever an applicant wishes to say. 
• Decision makers are entitled to have a policy on how applications seeking the exercise of discretion should be made (here the SSHD had a ‘Leave Outside the Immigration Rules’ policy that allowed LTR to be granted outside any of the established Rules or Schemes) but that policy cannot itself be rigid and inflexible, such as by introducing a requirement that only applications made using a particular form would be considered. Such a policy would itself offend against the principle.

The Court of Appeal held that discretion conferred by Parliament must be capable of being exercised in a holistic way, having regard to all the circumstances of an individual applicant. Undue insistence on a particular form being used gave rise to a significant risk that sight would be lost of that approach and those circumstances. The Court of Appeal held that the Judge had wrongly applied the S31(2A) test in refusing relief, as he had stepped into the “forbidden territory” of seeking to assess the merits/outcome of an exercise of discretion by the SSHD rather than simply evaluating the impact of the failure on the decision- making process. Referring to the recent decision in R(Bradbury) v Brecon Beacons National Park Authority [0] EWCA Civ 489, the Court restated the need for caution in the application of S31(2A), especially in cases where the legal error that had been identified was that there had been a failure to exercise discretion. In those cases, the normal course would be to quash the decision in question and remit the matter to the decision maker.

Summary

This judgment provides a helpful reminder of the need to ensure that policies relating to the exercise of statutory discretion are not so tightly drafted or so rigidly applied that discretion is effectively excluded and a ‘computer says no’ approach is allowed to dominate. This does not mean that policy criteria cannot be applied – the Court of Appeal acknowledged that Ms Hippolyte’s application may well be refused – but it is important that decisions are made as a result of the exercise of discretion and not the application of a blanket rule.

What to take away

The strength and relevance of fundamental public law principles are never lost by their restatement, and the rule against the fettering of discretion is one such rule. The advancement of AI is likely to lead to increased automation in decision-making and care must be taken to ensure that, in seeking to make efficiency savings and streamline processes, the ability to exercise discretion is not lost. Care is also needed not to state or imply in correspondence that a discretion ‘does not apply’, as it will save where expressly excluded by Parliament when conferring decision making powers.

How Capsticks can help 

Our public law specialists have significant experience of policy drafting, advising on powers and responding to actual and threatened judicial review claims. 

If you have any queries about the content of this article, and the impact on your organisation, please speak to Ros Foster, a partner in our Regulatory division, to find out more about how Capsticks can help.