Substantially Different? R (Hippolyte) v Secretary of State for the Home Department [2025] EWCA Civ 1493

Background

The Applicant, a national of St Lucia, made an application on 2 December 2022 for ILR under Category 4 of the Windrush Scheme. Her father was a member of the Windrush generation and entered the UK in 1956. He was granted British citizenship in 2018 [4]-[19].

To fall within Category 4, an applicant should satisfy the following criteria [7]:

1. A person in the UK,
2. who is a child of a Commonwealth citizen parent,
3. where the child was born in the UK or arrived in the UK before the age of 18,
4. and has been continuously resident in the UK since their birth or arrival,
5. and the parent was settled before 1 January 1973 or has the right of abode (or met these criteria but is now a British citizen).

Although the Applicant satisfied the other criteria, because of her repeated travel to St Lucia since arriving in the UK in August 2000, the Respondent refused her application on the basis that she failed to satisfy criterion (d) above [18]-[19].

The Applicant challenged the Respondent’s decision on two grounds [20]:

1. The Respondent had fettered her discretion in failing to give any consideration to whether to exercise her discretion to grant ILR despite the Applicant failing to satisfy the relevant criteria (see R (AB) v Secretary of State for the Home Department [2018] EWCA Civ 383 for the applicable principles).
2. The Respondent had discriminated against her under Articles 8 and 14 of the European Convention on Human Rights (“ECHR”).

At first instance, Sheldon J rejected the second ground of challenge but held the Respondent had fettered her discretion. Crucially, however, he found that it was highly likely that the outcome would not have been substantially different if the Respondent had not fettered her discretion [21]-[22]. He applied the statutory provision in s.31(2A) of the Senior Courts Act 1981, which states:

“The High Court –

(a) must refuse to grant relief on an application for judicial review, and

(b) may not make an award under subsection (4) [granting the High Court the power to award, damages, restitution or recovery of a sum due] on such an application

if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

Therefore, relief was refused.

Appeal

On appeal, the Applicant sought to challenge Sheldon J’s application of s.31(2A). Two grounds of appeal were advanced [30]:

1. There was no evidential basis for concluding that the Secretary of State would have been highly likely to conclude that the strength of the Appellant’s ties to the UK would only be considered as part of an application under Appendix FM to the Immigration Rules. In speculating as to how the Secretary of State might have exercised her discretion, the court strayed into the “forbidden territory” of second-guessing the exercise of discretion with which the Secretary of State alone is charged.
2. The judge was wrong to conclude that an absence of “historical injustice” made it highly likely that the Secretary of State would refuse to exercise her discretion in the Appellant’s favour.

It should also be noted that a Respondent’s Notice was also submitted. This advanced that the judge was wrong in his conclusions in relation to the non-fettering principle [47]-[68]. The Court of Appeal rejected the Respondent’s submissions and upheld Sheldon J’s conclusion. This point is not considered in detail in this article.  

S.31(2A)

The Court of Appeal overturned the judge’s conclusions in respect of s.31(2A). Singh LJ held that Sheldon J fell into error because he stepped into the shoes of the decision- maker and assessed the merits of the Respondent’s exercise of discretion [75]. Sheldon J at [64] of his judgment had held that the Respondent would have been highly likely to decide that the Applicant’s claim was not, in reality, equivalent to a Windrush scheme claim as she and her father had not suffered a historic injustice. Further, Sheldon J had held that there was no reason for the Secretary of State to make an exception to the Windrush scheme in the Applicant’s case.

In circumstances where there was no evidence as to what the Respondent would have done if she had not committed the error of law, and the judge had not considered in his judgment the Applicant’s core point that the continuous residence requirement is a proxy for ties to the UK considering the “spirit of the Windrush Scheme,” the judge fell into error on s.31(2A) [76]-[80].

The Court of Appeal has previously warned against such a determination. This can be seen in Bradbury v Brecon Beacons National Park Authority [2025] EWCA Civ 489 [72]-[74]. Lewis LJ’s judgment at [71] of Bradbury bears repeating:

“It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied.”

Comment

S.31(2A) arguments need to be properly supported by evidence. Hippolyte is not the first time that an appellate court has outlined this. The point was made forcefully by Singh LJ in R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA Civ 488 at [102]-[106]. Submissions by advocates or the court attempting to piece together various documents will not be sufficient. If a decision-maker sits on their hands and fails to evidence a submission that the outcome would not have been substantially different, there is a real risk the court will not invoke s.31(2A). This is simply the inevitable corollary of the principle that the court cannot step into the shoes of the decision-maker (see Gathercole v Suffolk [2020] EWCA Civ 1179; R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; Bradbury (above)). It needs some sufficient basis to invoke s.31(2A). That can only be provided by the decision-maker.

Therefore, decision-makers would be well-advised to properly evidence a submission on s.31(2A). This will help ensure the court has a sufficient basis to demonstrate that it “appears” to it that there would not have been a substantially different outcome. Failure to do so could lead to the judge at first instance being criticised on appeal for failing to have a sufficient basis, without stepping into the shoes of the decision-maker, to invoke s.31(2A), as in Hippolyte.

Equally, if a decision-maker seeks to rely on s.31(2A), they should do so at an early stage. One of the issues in Hippolyte was whether the Respondent could rely on fresh evidence not advanced at first instance in the form of a witness statement. The Court of Appeal considered Ladd v Marshall [1954] 1 WLR 1489 and refused the application as there was no good reason why the witness statement could not have been obtained and filed at first instance [88]. After Hippolyte,decision-makers may consider running arguments in the alternative at an early stage along the following lines:

• There is no public law error.
• Even if there is a public law error, the court should invoke s.31(2A) (with evidence, likely in the form of a witness statement, supporting this submission).

On the other hand, although applicants do not have the advantage of providing direct evidence, as the decision-maker does, they can still advance rebuttal against a s.31(2A) argument. Upon receipt of evidence from the decision-maker, witness statements and supporting documentation should be carefully analysed for any flaws. If a decision-maker has failed to provide evidence, this will provide an applicant with a strong basis for submitting that there is simply no basis for the court to invoke s.31(2A).

Matthew Leitch is a barrister at 1 Crown Office Row.