Jurisdiction(s):
United Kingdom

Non-fettering reaffirmed in Windrush ILR: Court of Appeal in R (Hippolyte) v SSHD; Home Office discretion, form flexibility, and stringent SCA 1981 s31(2A) threshold (England and Wales)

Published on: 12 January 2026

Published by a LexisNexis Immigration expert

Legal News

Article summary

What are the practical implications of this case?

Under the non-fettering principle, Home Office caseworkers must remain open to exercising discretion when deciding immigration applications, even where an applicant does not satisfy the Immigration Rules or sit within a policy concession.
Where exceptional circumstances arise, applicants should include detailed representations and supporting evidence, make a clear request for the use of discretion, and remind the Home Office of its duty not to fetter that discretion.
Any decision should explicitly show that the possibility of exercising discretion was properly and sufficiently considered; failure to do so may provide a platform for challenging a refusal.
However, the obligation is to consider discretion, not to deploy it. After genuine consideration, the decision-maker may still lawfully refuse the application.
If a refusal does not confirm that discretion was taken into account, or if it asserts that discretion was considered but does not...

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