Blog post by Nadia O'Mara of the Garden Court Chambers Immigration and Community Care Law Teams.
Following judicial review proceedings brought by a destitute woman and her one-year-old daughter who were denied access to public funds, the Home Office has published a new policy instruction setting out the circumstances in which no recourse to public funds (‘NRPF’) conditions will be lifted for those on student leave.
The decision is the most recent in a series of test cases over recent years which have seen the NRPF policy progressively reformed and is a positive step toward dismantling this cruel policy for good.
The First Claimant is a national of Ghana, who entered the UK on 16 October 2021, with leave to remain as the married dependent of an international student until 3 February 2023. Her visa (‘SLTR’) was subject to various conditions, including a standard no recourse to public funds (‘NRPF’) condition. The First Claimant was, however, entitled to work.
The First Claimant’s position was that on arrival to the UK, her husband abandoned her at the airport, the marriage broke down and they divorced. On 15 December 2021, the First Claimant gave birth to her daughter, the Second Claimant. It was the First Claimant’s case that the Second Claimant’s father is a man she met in Ghana. In July 2022, Her Majesty’s Passport Office (‘HMPO’) issued the Second Claimant with a British passport, on the assumption that the baby’s father was British.
On 21 October 2022, the SSHD granted the First Claimant a fee waiver for an application to switch her SLTR to a five-year parent route (based on her parental relationship to the Second Claimant). By operation of section 3C of the Immigration Act 1971, the First Claimant’s SLTR was extended pending the outcome of the family life application.
On 13 February 2023, the First Claimant applied to have the NRPF condition lifted so she could access state benefits.
On 18 May 2023, the SSHD refused the application, reasoning that conditions of leave could only be changed for those with leave to remain based on their family or private life under Appendix FM or paragraph 276ADE of the Immigration Rules, or with leave outside the rules. The implication was that the SSHD did not have to consider any exercise of discretion to lift the NRPF condition.
On 19 June 2023, the Claimants issued judicial review proceedings challenging the legality of that decision and the Immigration Rules and guidance said to have been applied in reaching the decision. The SSHD, in her summary grounds, conceded the decision was flawed and withdrew it. The Claimants were nevertheless granted permission to challenge the withdrawn decision and the underlying policies, Lang J accepting that the claim was not academic.
In July, HMPO revoked the Second Claimant’s British passport, and then in August, the SSHD refused the family life application and the application to lift the NRPF condition. The Claimants lodged an appeal in the First-tier Tribunal (IAC) challenging the refusal of the family life application and HMPO agreed to consider further evidence and reconsider the Second Claimant’s entitlement to a passport without charging a further fee. Further procedural developments followed, and the matter came before the High Court for a substantive hearing in October.
A substantive judicial review hearing in the case began on 4 October 2023. However, following the agreement of a consent order between the parties including declaratory relief, the proceedings were compromised on 6 October 2023 partway through.
That agreement followed the SSHD filing and serving of an amended policy instruction, with the Court and the Claimants agreeing to make a fresh request to the SSHD to have the NRPF condition lifted. The SSHD then granted the First Claimant recourse to public funds, accepting that she was destitute and that her circumstances justified the lifting of the NRPF condition, pending the outcome of her appeal, enabling her to provide sufficient maintenance and accommodation for her baby daughter.
Saini J approved the terms of the declarations and the agreed order, giving a short judgment setting out his reasons for so doing. At , the Judge states that the SSHD was correct to concede that the May decision refusing to lift the NRPF condition was unlawful because “the Defendant has a statutory discretion to consider lifting or not imposing the NRPF condition on the LLTR of those granted leave to remain including students and dependents”. The SSHD’s failure to consider exercising that discretion was unlawful on classic public law grounds, either as a misdirection of law or a fettering of discretion.
The amended policy instruction (OPI 1415) is appended to the judgment and identifies the existence of a discretion to remove the NRPF condition in student cases and includes the matters considered relevant in deciding to remove (or not impose) such a condition.
Under the header ‘Exercising discretion’, the new policy instruction states:
“This OPI is to highlight that section 3(1)(c)(ii) of the 1971 Immigration Act provides the Secretary of State power to exercise discretion in considering whether to vary the conditions of any leave granted, including the lifting of NRPF from permission granted in all immigration routes.
In considering whether to lift (or not impose) a NRPF condition on someone present in the UK there is a wide discretion which requires all relevant matters to be taken into account. In particular, the following must be taken into account:
- in any application involving a child the best interests of that child must be considered as a primary, although not the only consideration Section 55 Guidance
- where an applicant, or their dependent children, cannot reasonably be expected to return to their home country NRPF must be lifted if it is established that they are destitute, or at imminent risk of destitution or there are other particularly compelling reasons relating to the welfare of the child or other matters.
- where an applicant, or their dependent children, can reasonably be expected to return to their home country the expectation is that they should do so. Particularly compelling circumstances will need to be established to require the NRPF condition to be limited”.
Saini J concluded his decision at  with well-deserved recognition and commendation of the Unity Project and Project 17 for the substantial assistance provided to the First Claimant and her baby daughter, and evidence provided to the Court, which identified the real challenges faced by those who may find themselves destitute as a result of conditions limiting their access to public assistance.