Court of Appeal rules on how a children’s best interests claim over eVisas was pleaded

The Court of Appeal's further judgment of 17 February 2026 deals with migrants on section 3C leave who have no status documents, and with how a claim about children's best interests against the Home Secretary was pleaded.

Background

The Court of Appeal (Civil Division) gave this judgment on 17 February 2026. Sir Nicholas Underhill wrote it, with Lord Justice Baker and Lady Justice Elisabeth Laing on the panel. It follows the court's judgment of 19 November 2025 in the same appeal, which came from a High Court decision by Mr Justice Cavanagh ([2024] EWHC 1374 (Admin)).

The claims were brought by the Refugee and Migrant Forum of Essex and London (RAMFEL) and Cecilia Adjei. They arise from the difficulties of some migrants who have section 3C leave but are given no documents showing that status to third parties. The problem is expected to disappear eventually as digital eVisas are gradually introduced. However, when the claim was issued and heard, that process had not yet begun to benefit anyone on section 3C leave. The plan does not provide for eVisas to be granted to people already on section 3C leave. eVisas were also introduced in phases for different categories of migrant over a two-year period.

The question

In November 2025 the court adjourned the second ground of appeal. That ground was the claimants' argument about section 55 of the Borders, Citizenship and Immigration Act 2009. They said the Home Secretary had not had regard to children's best interests, as section 55 requires, in carrying out the functions that led to this position. The claimants' primary complaint was that eVisas should have been granted at once to everyone on section 3C leave. They also complained about which categories of migrant were chosen to receive eVisas in the early stages.

The decision

Sir Nicholas Underhill concluded that the appeal must be allowed at least to some extent. He found that the High Court had decided the claim on a basis that had never been pleaded. The claim form and the statement of facts and grounds did not identify any particular decision under challenge, and the claim form referred only to "ongoing" breaches. He said identifying the decision is the correct starting point in any section 55 claim.

He then considered whether the ground should be dismissed outright or replaced with an order of the kind appropriate to a section 55 breach, such as one requiring the Home Secretary to retake the decision.

The reasoning

Sir Nicholas Underhill said the decision could have been identified from the New Plan for Immigration, published in May 2021, and the later details of its implementation. The failure to identify it led the Home Secretary to answer a case different from the one that emerged at the hearing.

He accepted that parties do not always get their case right first time, and that what matters is whether there was prejudice. In his view, the failure to plead the decision may have caused the Home Secretary real prejudice. On the evidence, it seemed unlikely to him that an explicit section 55 exercise would have led her to a different decision. Had the case been pleaded clearly, she would probably have relied on section 31(2A) of the 1981 Act and produced fuller evidence. He also noted that the eVisa programme had been in place for almost eighteen months when the High Court gave judgment in June 2024.

Sources

• Refugee and Migrant Forum of Essex and London & Anor v The Secretary of State for the Home Department, [2026] EWCA Civ 86, Court of Appeal (Civil Division), 17 February 2026: https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/86