BSC v Secretary of State for the Home Department - eVisa Fettering Discretion

The High Court (Eyre J) has held that the adoption of a fixed rule by the Home Secretary that she would only issue eVisas, and not physical documents, as proof of immigration status does not constitute an unlawful fettering of discretion.

The judge held that the public law rule against fettering discretion can only apply to statutory powers which legislation requires an authority to exercise, ie powers which are impermissible for an authority to abdicate. I will call this the “non-abdicable power” test. In this case, the power to consider issuing a biometric immigration document was a non-abdicable power, but the power to issue such document in a particular form (eg physical) was not. This is an important case restricting the application of the rule against fettering discretion.

The case is R (BSC and another) v Secretary of State for the Home Department [2026] EWHC 705 (Admin).

Factual Background

The two claimants were, respectively, a single parent and recognised trafficking victim (BSC) and refugee, and single parent with leave to remain (Miss Suarez). Both faced serious practical difficulties due to errors in the eVisas they were issued. BSC faced prolonged errors in her eVisa, including incorrect name and date of birth, which led to concerns regarding her access to benefits, employment and housing under established rules relating to the “hostile environment” ([56]-[57]). Miss Suarez’s eVisa wrongly recorded the was subject to a “no recourse to public funds” condition, causing delays to her entitlement to universal credit and child benefit ([60]-[61]).

The claimants challenged the Home Secretary’s policy of not providing an alternative (physical) form of confirmation of immigration status, following her decision to shift to a fully digital system, on two grounds. First, the policy of declining to issue biometric immigration documents (BIDs) in a physical form or in an alternative electronic form even in exceptional circumstances unlawfully fettered her discretion to issue BIDs in forms other than by way of an eVisa system, under Regulations 13 and 13A of the Immigration (Biometric Registration) Regulations 2008.

Second, considering the hardship which can flow from an inability to properly access the eVisa system, the policy which does not permit any exceptions was irrational.

I will concentrate in this post solely on the court’s consideration of the first ground (fettering discretion).

The judge’s analysis on the fettering discretion ground

The claimant’s central argument was that the Home Secretary unlawfully fettered her discretion to issue BIDs in physical or electronic form. By adopting a fixed/rigid policy of only issuing eVisas, she failed to exercise this discretion.

The judge first ruled on some preliminary issues raised by the Home Secretary. First, he held that there was indeed a fixed/rigid rule in the Home Secretary’s policy, namely that she would only issue eVisas ([71]). The fact that the Home Secretary asserted she “has not closed her mind” did not reflect “the reality of the position”, in circumstances that her assertion is immediately followed by the statement that she “will not issue physical proof to anyone” in the “circumstances pertaining at the current time” ([71]). Second, the judge rejected the Home Secretary’s argument that the rule against fettering discretion cannot apply where the discretion was contained in secondary legislation which was made the decision-maker themselves ([73]). The purpose of the rule is to ensure a body entrusted with a discretion will exercise it; the fact that it is secondary legislation giving such a power does not affect that principle ([74]).

Coming to the central issue, the judge considered it was necessary to “return to the terms of regulation 13 and to first principles” ([79]).

The nature of the rule against fettering discretion requires the court to first “identify the power in question and then to assess whether the relevant legislation requires the holder of the power to exercise it with the consequence that it is impermissible for that person or body to surrender, abandon, or release the power” ([87]). It is “not appropriate to adopt a mechanistic process in which, first, a particular power is characterised as a discretion; then it is said that a discretion cannot be fettered; then a particular course is characterised as a fettering of the discretion in question; and then from those steps the conclusion that the course in question is unlawful is reached” ([81]). This is because the “mischief” the rule seeks to address is “the abdication of the power, and the making of an inflexible rule is an illustration of one form of abdication” ([87]).

Applying this to the present case, there were two relevant discretionary powers in play.

First, the power to issue a BID. As provided in regulations 13(1) and 13A(1), where certain pre-conditions are met by an applicant, the Home Secretary “may issue a biometric immigration document”.

Second, the power to issue a BID in a particular (electronic) form. As regulations 13(1A) and 13A(1A) – on which the claimant’s argument on ground 1 predominantly relied – state: “The reference to the issue of a biometric immigration document in paragraph (1) includes allowing the person to view their biometric immigration document electronically”.

The judge held that, on proper analysis, the Home Secretary was only “required” by the 2008 Regulations to exercise the first power ([88]). She is required, where the pre-conditions are met, to consider issuing a BID. She “cannot abandon that power or fetter that discretion by saying that in all circumstances she will only issue a BID to such persons as satisfy an additional criterion which is not set out in those regulations” ([88]). There is no suggestion that the Home Secretary’s policy of issuing eVisas only constitutes a fetter of this power ([89]).

In contrast, the second power – which permits the Home Secretary to issue BIDs in electronic form – was not a power “which cannot be abandoned” ([90]). This latter power simply has the effect “that, having decided that a BID is to be issued to a particular person, the Defendant can then discharge the obligation to issue a BID in a number of ways” ([90]). The exercise of this power was still subject to public law challenge through the prism of rationality ([90]), but there could be no challenge based on fettering discretion.

The Home Secretary’s rigid eVisa policy was therefore not an abdication of a power she was required to exercise. It was simply an exercise of her power in a way permitted by the Regulations ([93]). The claimants’ argument “[ran] the risk of creating some form of continual regression”. The Home Secretary’s choice as to what form of BID to be used may be susceptible to a rationality challenge, but “it is not a proper reading of the 2008 Regulations nor a proper application of principle to see each choice as the exercise of a discretion which cannot be fettered and in respect of which the Defendant would have to be prepared to take a different approach in exceptional circumstances” ([93]).

The fettering discretion ground was therefore dismissed.

Comment

This is a significant decision restricting the scope of the rule against fettering discretion. Since British Oxygen, the rule has become a seemingly wide principle of general application in public law, requiring a “decision-maker to be willing to listen to and consider arguments for not acting in accordance with a rule or other established policy”: see (AB) v Secretary of State for the Home Department [2018] EWCA Civ 383 at [48]. There have been cases where the principle has been held to apply even in the context of common law (as opposed to statutory) discretions. For example, in Adath Yisroel Burial Society v HM Senior Coroner for Inner North London [2018] EWHC 969 (Admin), the Divisional Court (Singh LJ and Whipple J) held (at [85]-86]) that the rule applied to Coroners exercising common law powers.

The decision in BSC and another seeks not only to firmly constrain the rule against fettering discretion to the exercise of statutory powers (see also Karmakar at [80], on which we blogged here), but more significantly to powers which decision-makers are required to exercise, or which it would be impermissible for them to abdicate. This is the non-abdicable power test.

It is clear that Eyre J’s elucidation of the non-abdicable power test was motivated by an intention to restrain application of the rule against fettering discretion. The judge’s description of the claimants’ argument as “run[ning] the risk of creating some form of continual regression” ([93]) refers to the idea that, in this context, every policy choice about the form of BID could itself be characterised as a discretion that cannot be fettered, resulting in an endless chain of arguments requiring the Home Secretary to keep an open mind. This could involve not just asking why no physical documents are provided (as was the case here), but also eg why a particular balance is used in a hypothetical “mixed” system.

Nevertheless, the non-abdicable power test does not seem straightforward to apply. It is not easy to distinguish between powers which decision-makers are “required” to exercise, and those which they are not.  It is not as easy as asking whether, for example, a particular power must be exercised for a system to “properly function”, or whether the power in question is “trivial” or “important”.

This is because the questions of what it means for a system to “function” or whether a power is trivial/important, and similarly whether a power “requires” to be exercised such that it is “impermissible” for it to be “abdicated”, ultimately requires a degree of policy-based judgement. As observed by the judge himself, it is “ possible to describe” Regulation 15 of the 2008 Regulations – which lists items of information which a BID “may contain” – “as a discretion which the [Home Secretary] is required to exercise”, but “that would be a mischaracterisation of the provision” ([91]). With respect, the judge’s observation that this is a “mischaracterisation” can only be sustained by applying judgement based on policy and “principle” ([see [91]). This judgement aids in making the determination of whether the power is one which it is “impermissible” for the Home Secretary to abdicate, which acts as the conduit for the judge’s ultimate view that the Regulation 15 power is simply not the type of power to which the rule against fettering discretion should apply.

It will be interesting to see if the non-abdicable power test is adopted by future courts, and what further guidance the courts can give on its application.

Gabriel Tan

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