The “highly likely” test under s.31(2A) of the Senior Courts Act
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The Court of Appeal has emphasised the limits of “highly likely” under s.31(2A) of the Senior Courts Act 1981. Natasha Jackson looks at the lessons for public law practitioners.
The Court of Appeal in R (Hippolyte) v Secretary of State for the Home Department [2025] EWCA Civ 1493 has provided important guidance on (i) the Secretary of State’s residual discretion under s.3(1)(b) of the Immigration Act 1971, (ii) the application of the non-fettering principle in the immigration context, and (iii) the proper approach to the “highly likely” test in s.31(2A) of the Senior Courts Act 1981.
This case is particularly notable as it marks the first appellate reversal of an Administrative Court decision to refuse relief (pursuant to the duty in s.31(2A)) on the basis that it was highly likely that the outcome would not have been substantially different had the conduct complained of not occurred.
The issue
Ms Hippolyte, the daughter of a member of the Windrush generation, applied for Indefinite Leave to Remain (“ILR”) under Category 4 of the Windrush Scheme. Her application was refused because she did not meet the Scheme’s requirement of continuous residence since arrival in the UK.
In the High Court, Sheldon J accepted that the Secretary of State had acted unlawfully by failing to consider whether to exercise her residual discretion to waive that requirement. The decision was therefore unlawful because it contravened the “non-fettering” principle of public law. However, relief was refused under s.31(2A) on the basis that it was “highly likely” the outcome would not have been substantially different had the error not occurred.
The central question for the Court of Appeal was whether the High Court had been entitled to refuse relief on the “highly likely” basis, notwithstanding the accepted breach of the non-fettering principle.
The Court of Appeal’s decision
1. A failure to consider discretion is a paradigmatic breach of public law
Singh LJ (with Andrews LJ and the President agreeing) held that the Secretary of State had plainly failed to consider the exercise of her residual discretion under s.3(1)(b) of the Immigration Act 1971. The correspondence showed that discretion had been rejected because the mandatory requirements of the Windrush Scheme were not met. This was precisely the form of unlawful self-fettering identified in British Oxygen Co Ltd v Minister of Technology [1971] AC 610 and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12.
The Court rejected the Secretary of State’s arguments, raised by Respondent’s Notice, that the claimant’s pre-action letter was not a valid request for “leave outside the rules” or that the wrong form had been used. The non-fettering principle requires flexibility in procedural requirements: insisting on a rigid system of forms risked undermining Parliament’s conferral of a broad discretionary power.
2. The High Court strayed into the “forbidden territory” under s.31(2A)
Crucially, the Secretary of State had filed no evidence explaining how discretion would have been exercised had it been considered. In those circumstances, the High Court’s conclusion that refusal was “highly likely” involved the court impermissibly speculating about the merits of a discretionary decision that had never been taken.
Singh LJ emphasised the line of recent authorities (R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489 and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA Civ 488) warning against courts attempting to reconstruct, without evidence, what a public decision-maker “would have done”. The statutory bar on relief remains a “high test”. It will “often be difficult or impossible” to satisfy where a discretionary power has simply not been exercised at all.
On that basis, the High Court’s application of s.31(2A) could not stand.
3. Historical injustice is not a prerequisite under the Windrush Scheme
The High Court had relied in part on the absence of “historic injustice” in the Claimant’s case to conclude that it was highly likely that the Secretary of State would refuse to exercise her discretion in his favour.
The Court of Appeal rejected the idea that this could be determinative: the Windrush Scheme does not require historical injustice, nor could such a requirement be read into the discretionary power. The Claimant’s argument that the continuous residence requirement is a proxy for “strong and subsisting ties”, which she met through other factors, was a relevant point the Secretary of State was required to consider.
4. Fresh evidence
The Secretary of State sought to rely on additional internal emails relating to the treatment of the claimant’s siblings’ applications. Although Singh LJ was doubtful that the Ladd v Marshall criteria were met, he held that in any event the material did not affect the outcome: it did not show that a discretionary refusal was “highly likely”.
Key takeaways
The Court of Appeal’s judgment provides three significant takeaways for public law practitioners:
- Residual discretion must genuinely be considered. Even in schemes designed to operate according to defined criteria, such as the Windrush Scheme, the Secretary of State must remain willing to consider exceptions.
- Procedural rigidity cannot defeat the non-fettering principle. A request to exercise discretion cannot generally be invalid merely because it is not made on the “right” form.
- Section 31(2A) remains difficult to satisfy in discretion cases. Where the public authority has entirely failed to exercise a discretionary power, a court will seldom be able to conclude that the same outcome is “highly likely”. Especially if there is no evidence to support what the decision would have been.
Natasha Jackson is a barrister at Landmark Chambers.
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