The Secretary of State’s policy prohibiting migrants from receiving mainstream welfare benefits was found to be illegal by the High Court once more on February 15, 2023. Two judicial review cases were filed on behalf of destitute claimants with disabilities who were the target of the policy, also known as the no recourse to public funds (NRPF) condition. A consent order settling the claims was reached by the parties several weeks prior to the expedited trial, as was recently reported by Sky News. R (HAA) v. SSHD (CO/308/2023) and R (Ali) v. SSHD (CO/3425/2022) are the cases.
Background
Since the adoption of Appendix FM to the immigration regulations in July 2012, the vast majority of family migrants who are given temporary permission to stay in the UK are subject to the NRPF condition, which prevents them from receiving common welfare benefits like Universal Credit, Personal Independence Payments, and Disability Living Allowance. This reflects the Appendix FM’s greater focus on independence, which is supported by sections 117A to 117B of the Nationality Immigration and Asylum Act 2002.
The Immigration Rules currently provide for two narrow exceptions to the general policy. GEN.1.11A states the NRPF condition “will be” imposed unless the decision-maker is satisfied that:
“(i) the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or at risk of imminent destitution; or
(ii) there are child welfare reasons that outweigh the rationale for imposing the NRPF condition.”
Since the Home Office frequently requests 6 months’ worth of specific financial and other evidence regarding housing and support networks, many applicants struggle to pass the destitution test in practice. The policy equality statement acknowledges that it is particularly challenging for disabled applicants to demonstrate their financial need or impending destitution. Making decisions slowly is also typical. For instance, the typical wait time for decisions was 45 days in the second quarter of 2022 and only 39 days in the third.
The claims
The Secretary of State had granted the claimants HAA and Ms. Ali limited leave to remain subject to NRPF requirements. They were two unrelated migrants. Due to their hardship and disabilities, they asked the Secretary of State to remove the NRPF condition from their leave after falling on hard times. Each time, the decision-maker rejected the claimant’s request to have the condition lifted and gave their disabilities little to no thought. Legal review cases were quickly filed.
The main argument against the NRPF policy was that it failed to take into account the Secretary of State’s broad statutory discretion (found in section 3(1)(c)(ii) of the Immigration Act 1971) regarding whether or not to impose such a condition on a person’s limited leave to remain in the UK. Additionally, they violated her obligations under the Equality Act 2010’s sections 6, 20, and 29(7), as well as Schedules 1 and 2, to take steps to meet the needs of applicants who are disabled and to make reasonable accommodations for them.
The court’s order
Although settlement means we do not have the benefit of a reasoned judgment from the High Court, the sealed order agreed between the parties clarifies that the rules and guidance are:
“…unlawful for their failure to instruct caseworkers adequately in relation to exceptional circumstances and/or disability as grounds for potentially requiring recourse to public funds to be granted to applicants who may not be destitute or imminently destitute”
and
“…where an application has been made for non-imposition, or lifting, of the no recourse to public funds (‘NRPF’) condition, the Defendant retains a discretion not to impose or to lift the NRPF condition on the grounds that although the applicant is not destitute (or imminently destitute), the effect of their disability may create exceptional circumstances that require them to be permitted to have recourse to public funds”.
Cases where the NRPF policy has been found unlawful (in full)
R (A&M) v SSHD (CO/4615/2018): the Defendant failed to conduct a public sector equality duty compliant review of the NRPF policy.
R (W, a Child by his Litigation Friend J) v SSHD [2020] EWHC 1299 (Admin): the NRPF policy at that time required applicants to demonstrate destitution before caseworkers would lift or not impose the condition. The divisional court held that the policy failed to make clear to caseworkers that they had to lift or not impose the condition where a person was at imminent risk of destitution and/or inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights and/or its common law analogue. The Defendant amended the policy to refer to ‘imminent’ destitution following the case. You can read about the case in more detail here.
SSHD v. ST & Others [2021] EWHC 1085 (Admin): The Divisional Court determined that at the time, the NRPF policy did not require caseworkers to adhere to the duty to consider the best interests of children in Section 55 of the Borders Citizenship and Immigration Act 2009. More information on this case can be found here.
R (AB & Others) v SSHD [2022] EWHC 1524 (Admin): despite ST, the Defendant had failed to make any or any sufficient amendments to the NRPF policy to require caseworkers to comply with her duty under section 55 of the 2009 Act.
R (HAA) v SSHD (CO/308/2023) & R (Ali) v SSHD (CO/3425/2022): the NRPF policy was declared unlawful for failing to reflect the Defendant’s broad discretion to lift or not impose the condition in cases of exceptional circumstances and/or disability, irrespective of whether an applicant is or may be destitute or imminently destitute.
What happens next?
Unless and until the policy is changed in a way that complies with the Secretary of State’s obligations to applicants with disabilities, the rules and instructions will probably continue to be illegal.
Further modifications to the NRPF policy are anticipated in the fall of 2023 as a result of this litigation. Until then, those who fall under the NRPF condition and (i) are affected by disability, including as caregivers of a disabled person; or (ii) experience other exceptional circumstances, may rely on the court’s order in HAA to request recourse to public funds when necessary.
Refusal decisions or decision-making procedures that fail to take into account an applicant’s disability or exceptional circumstances may be vulnerable to public law challenge.
Addendum: an amendment was made in the latest Statement of Changes to the immigration rules recognises a third exception to the NRPF condition.
Although it is unclear how this third exception will work in practice, the phrase “income or expenditure” may cause caseworkers to revert to using the destitute test, which could be illegal.
