Part of the Home Office’s ‘no recourse to public funds’ policy ruled unlawful
Published: by Guest blog
This blog has been written by Eve Dickson from our friends at Project 17, who we often work with to support people. The blog focuses on a recent High Court ruling on the no recourse to public funds (NRPF) regime.
Many of Shelter’s clients are affected by the NRPF regime, which has significant impacts on their housing and finances. Shelter, Project 17 and many other organisations have been campaigning for it to end.
Last month, the High Court finally ruled that part of the Home Office’s NRPF policy was unlawful.
The NRPF condition is imposed on undocumented migrants and most migrants with time-limited leave to remain in the UK (visas that allow you to enter and stay in the UK for a specified period of time), including those who are on a route to settlement. It prohibits them from accessing statutory homelessness assistance and most welfare benefits, such as Universal Credit and child tax credits.
Research has found that without the welfare safety net to fall back on, many people with NRPF experience hunger, homelessness, and debt. They are also at higher risk of exploitation and abuse. Women, low-income families, individuals with disabilities, and black and minority ethnic people are disproportionately impacted.[1]
Project 17 is campaigning for an end to NRPF and for everyone to have a home and enough to eat, regardless of immigration status. We intervened in the High Court case to highlight the difficulties facd by the families we work with.
Below we explore what the recent judgment means in practice for people with NRPF.
Inadequate protection from destitution
Although the government may claim that there are adequate protections for people with NRPF who experience destitution, the reality is very different.
In theory, families with NRPF who become destitute should be able to access local authority support under section 17 of the Children Act 1989. Under this legislation, some families with NRPF are able to access accommodation and limited financial support.
Project 17 works with families to improve their access to section 17 support. Our data shows that 6 in 10 families who try to access support are refused. All too often parents are wrongly told that they are not entitled to support. Some families we’ve worked with have been threatened that their children will be taken into care. And those who do manage to access support are provided with very little. In some cases, the level of financial support is as low as £1.70 per person, per day.
In some cases, it is also possible for people who have been granted a limited leave to remain on human rights grounds to apply for the NRPF condition to be lifted. [But the application is complex, often slow, and is not covered by legal aid.](http://static1.squarespace.com/static/590060b0893fc01f949b1c8a/t/5d0bb6100099f70001faad9c/1561048725178/Access+Denied+-+the+cost+of+the+No+Recourse+to+Public+Funds+policy.+The+Unity+Project.+June+2019.pdf(opens in a new tab)) [2]
The High Court case
Last month’s case was brought by an eight-year old boy and his mother, who was granted ‘limited leave to remain’ and, like many others, is on a 10-year route to settlement. This means that it will take 10 years for her to be eligible to apply for settlement (also known as ‘indefinite leave to remain’). During this time, she must renew her visa every two and half years, at a cost of £2,033 each time.
Families on the 10-year route are normally subject to the NRPF condition.
Prior to the judgment, Home Office policy stated that NRPF would ‘normally’ be imposed upon those granted leave to remain as a partner, child or parent. Some exceptions to this were made, for example if the applicant could show that they were destitute.
In this particular case, the NRPF condition had been imposed multiple times since 2013. This led to the family experiencing long periods of destitution, street homelessness, and instability. The child had to move school five times before he was eight years old. The family argued that the Home Office’s policy of applying the NRPF condition was incompatible with Article 3 of the European Convention on Human Rights (ECHR) because it forces people into destitution.
The eight-year old’s legal representatives argued that the rules required an applicant to become destitute before the NRPF condition could be lifted. The only mention of cases where an applicant was at risk of destitution was in the guidance for caseworkers. This guidance implied that in such cases, individual decision-makers had a ‘discretion’ rather than a legal obligation not to impose, or to lift, the NRPF condition.
The judgment found that, taken together, the Immigration Rules and the guidance for caseworkers were unlawful as they failed to uphold the Secretary of State’s legal obligation to take proactive steps to prevent destitution.
The judges thought that these documents had the ‘potential to mislead caseworkers in a critical respect’, which gave ‘rise to a real risk of unlawful decisions in a significant, and certainly more than minimal, number of cases’.
As a result, the court ordered the Home Office to publish revised guidance within seven days. The judges also suggested that it may be desirable to amend the immigration rules, but left it to the Secretary of State to decide whether to do so.
The changes that were made
Following the judgment, the Home Office updated its guidance on imposing the NRPF condition on people granted leave to remain on family or private life grounds. The guidance now makes clear to caseworkers that 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’.
In practice, this should mean that more people are granted access to public funds if they are experiencing, or are at imminent risk of, destitution. This means that people should be able to have their NRPF condition lifted at an earlier stage. Although, how ‘imminent risk’ will be interpreted by caseworkers remains to be seen and we will need to monitor the extent to which the changes in guidance work in practice.
Next steps
The outcome of this case is significant. But we are concerned that it does not go far enough. The NRPF policy still largely remains intact, and the issues that led up to the case have not gone away.
This case will not change things for the many undocumented people living in the UK, who, as well as having NRPF, are prohibited from working. Nor will it help people with NRPF who are on other visas, such as those on student or work visas. Many people on these visas will have found themselves newly destitute as a result of the Covid-19 pandemic.
We need to build on the success of this case by continuing to highlight the negative effects of the NRPF policy and asking for it to be scrapped in its entirety. Everybody should have the right to a home and enough to eat, regardless of their immigration status.
[1]See:
M. O’Neill, U. Erel, E. Kaptani & T. Reynolds. Borders, risk and belonging: Challenges for arts-based research in understanding the lives of women asylum seekers and migrants ‘at the borders of humanity’
J. Price & S. Spencer. Safeguarding children from destitution: Local authority responses to families with ‘no recourse to public funds’
[2] The Unity Project have compiled a list of organisations that offer help with these applications here: https://www.unity-project.org.uk/otherhelp