NRPF policy amended following legal challenge

19 June 2020

Grounds on which Home Office must grant recourse to public funds extended ​

The Home Office has extended the criteria for granting recourse to public funds to people who apply for leave to remain on the family or private li​fe routes, following a legal challenge brought by an eight year old British child in the case of R (W) v The Secretary of State for the Home Department & Anor [2020] EWHC 1299 (Admin)

In 2013, the child’s mother was granted leave to remain as a parent on the 10-year settlement route. Her leave was granted subject to the no recourse to public funds (NRPF) condition. She submitted evidence with her most recent further leave to remain application to show that the family would be destitute without access to public funds, but leave to remain was granted with the NRPF condition imposed. The mother worked as a carer, but the imposition of the condition led to the family enduring periods of destitution, including a period of street homelessness before they were provided with support by a local authority. They had moved house repeatedly and the child had changed school five times.
 
The Court found that the NRPF policy, as set out in the Immigration Rules and Home Office guidance, was unlawful as it breached Article 3 of the European Convention on Human Rights (the right not to be subject to inhuman or degrading treatment). ​The policy did not clearly specify that the Home Office is legally obliged not to impose, or lift, the NRPF condition when an applicant does not yet, but will imminently, suffer inhuman or degrading treatment without recourse to public funds.  

The Home Office guidance has now been amended to state that: 

‘In all cases where an applicant has been granted leave, or is seeking leave, under the family or private life routes the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution without recourse to public funds.’

Although it is now mandatory that recourse to public funds is granted when someone is destitute, or at imminent risk of becoming destitute, the Home Office guidance is clear that the onus remains on the applicant (in their leave to remain or change of conditions application) to show that they have:

  • provided evidence that they are destitute or at risk of becoming destitute imminently without recourse to public funds, 

  • provided evidence that there are particularly compelling reasons relating to the welfare of a child on account of the child’s parent’s very low income, or 

  • have established exceptional circumstances in their case relating to their financial circumstances which require the no recourse to public funds condition code not to be imposed or to be lifted.

Commentary
The circumstances of this family highlight the challenges that people living in the UK with leave to remain that is subject to the NRPF condition face when they are unable to earn enough from employment to support themselves and any dependants and cannot rely on the benefit system to top up their income or provide a safety-net when they are unable to work. In some instances, as was the case for this family, social services may provide accommodation and financial support to families in order to safeguard the welfare of children

Although it is welcome that people who are at risk of homelessness or destitution are now more likely to be granted recourse to public funds when they apply for leave to remain or a change of conditions, this policy change does not provide an adequate safeguard for everyone who has leave to remain with NRPF and finds themselves at risk of destitution. The policy only applies to those who are applying for, or who have, leave to remain on family or private life grounds, so will not help other people subject to the NRPF condition who are seeing a reduction in their income during the current public health crisis. When a person​ can apply for a change of conditions, the onus is on individuals to apply, fully evidence their situation and wait for a decision to be made about whether the condition will be lifted. Additionally, those who are on the five-year settlement route who apply for a change of conditions will be penalised by being moved onto the 10-year settlement route, a much longer path to obtaining indefinite leave to remain. 

The Local Government Association (LGA) has called for people with no recourse to public funds to be able to access the benefit safety-net in order to ensure that all residents can receive sufficient support and avoid falling into destitution whilst the Covid-19 pandemic is ongoing. This has also been recommended by the Home Affairs committee following a recent inquiry, to which we submitted evidence. As the Court points out in this case, ‘the expenditure of public funds with a view to avoiding destitution is...a matter for Parliament'. Unless the Government heeds these calls and implements wider legislative change, then whilst the pandemic is ongoing and throughout the subsequent recovery period, there will still be many families and individuals at risk of losing their income and becoming homeless, some of whom may require local authority support.