High Court finds no lawful system in place for expediting change of conditions applications

The High Court has found that the Home Secretary does not have an adequate system in place for processing change of conditions application to reduce, to a reasonable and proportionate minimum, the risk of inhuman and degrading treatment caused by the “no recourse to public funds” (“NRPF”) condition. The case is SAG & Ors v Secretary of State for The Home Department [2024] EWHC 2984 (Admin).

Background

There were eight claimants in total, across three families.

SAG, MA, HF and NF: challenge to reimposition of NRPF condition

In November 2023 SAG applied to extend her leave to remain. When that further leave was granted on 5 February 2024 the NRPF condition was re-imposed. I will note here, as I have pointed out previously, that Home Office decision makers unlawfully doing this is a common problem which should be challenged when it arises. On 13 May 2024 the NRPF condition was removed, however the family continued to be paid benefits during the period they had the condition attached.

As I always emphasise when I run my NRPF workshops, this is why it is crucial in cases of reimposition to get the initial decision to reimpose NRPF withdrawn rather than just having the condition lifted going forward. This ensures lawful entitlement to public funds throughout. Do read on though as the court makes an important point to note about these types of challenges.

LG and KG

LG is a Nepalese national who is the single mother of KG, born in the UK in 2019 and who is stateless. I am setting out the background here in some detail as this is a fairly common, incredibly frustrating, situation for people making change of conditions applications to be in.

On 24 March 2023 LG was granted leave to remain on the grounds of her family life, in the ten year route to settlement with no recourse to public funds. On 4 December 2023 LG applied for the NRPF condition to be lifted as her income of £855.73 per month was not enough for her to rent adequate accommodation as well as pay for her and KG’s other essential needs. LG was only able to work part-time because of childcare needs.

LG’s family member BT had been supporting LG and KG who had been living with them since leaving section 95 asylum accommodation in 2021. BT provided a letter for the Home Office explaining the size and number of people living in her home and that she could no longer support LG. BT said that she was not prepared to disclose her personal finances to the Home Office as this was private information.

Inevitably, the Home Office responded to this with a request for “six months of bank statements for all household accounts, including BT’s bank statements”. The letter also asked for evidence that the household was overcrowded “such as a report from a local authority”. A response was sent referring to the letter that had already been provided by BT and pointing out that evidence of overcrowding was irrelevant given LG had been asked to move out.

The Home Office then responded by asking when BT had stopped providing accommodation. A further letter from BT dated 26 January 2024 was provided where she explained that she was not going to make her family members street homeless but wanted them to move out immediately. The change of conditions application was then rejected on 7 February 2024 and that decision was upheld on 28 February 2024 following an administrative review.

After permission was granted in the judicial review, the Home Secretary withdrew the two decisions and offered to make a new one within three months. On 3 October 2024 a further refusal decision was made.

The letter said that BT had not explained the reasons she wanted LG and her daughter to leave her home and BT’s wish for more space for her immediate family did not mean that the accommodation was inadequate for LG and her daughter. The lack of “independent documentary evidence” to show that the property was overcrowded was also criticised, the decision maker suggesting evidence from “a health visitor, social worker or other health and social care professional” could have been provided.

The decision maker also said that the lengthy period BT had provided LG with accommodation before the application meant that the accommodation was not temporary and BT had said that she would not make LG street homeless, so there was no real risk of their needs not being met. The decision maker also said that six months of bank statements for all members of the household would need to be provided, with explanations of all major and regular incoming and outgoing payments explained.

LG applied to amend her judicial review and on 1 November 2024 the Home Secretary filed proposed amended detailed ground of defence.

BPB

LPB is a Ghanaian national who came to the UK in June 2012 and overstayed. She has two children, BPB and APB. LPB was granted leave to remain on family life grounds, subject to the NRPF condition, on 8 June 2022. APB moved back to Ghana in November 2023 to live with her grandmother.

On 8 March 2024 LPB made a change of conditions application, stating that she and BPB were soon to become homeless as her sister and partner were accommodating them on a temporary basis only, for four months. LPB also said that BPB would shortly be turning ten and so it would be appropriate for them to be in a two bedroom property (in line with section 325 of the Housing Act 1985).

LBP’s sister provided a letter saying that they had allowed the family to stay on an emergency temporary basis but had been clear that they could not support them for longer than four months. A photograph of the small bedroom they were staying in was also provided as evidence, along with letters from BPB’s school explaining that his ability to progress in school was dependent on his living situation improving.

The change of conditions application was refused on 3 July 2024 and the refusal maintained on 3 September 2024 following an administrative review. They applied for judicial review on 2 October 2024 and the claim was linked with the other two cases.

The Home Secretary withdrew the decisions and made a fresh refusal on 1 November 2024, again complaining about the lack of financial evidence from the third party, LBP’s sister. The decision maker suggested that “electoral roll records, letters from official sources addressed to other occupants, or statements from schools or GPs confirming the addresses of any children” were provided. The letter went on to say “It is your responsibility to supply independent evidence of your living conditions and such documentary evidence is easy to obtain”.

It was acknowledged that the sister had privacy concerns, yet those concerns were then immediately dismissed on the basis that she was a close family member who had provided support for 11 months. The section 55 duty was considered and it was decided that “I do not consider that the reasons provided relating to the children outweigh the reasons for maintaining the NRPF condition because, as stated above, you have failed to provide evidence”. The letter about the child receiving SEND support was dismissed on the grounds that no formal diagnosis had been made.

The judicial review

The claimants submitted that in cases where a change of conditions is made based on the withdrawal of support from a third party, it is wrong for the Home Secretary to insist that evidence of that person’s finances and accommodation are provided. The evidence asked for is irrelevant and the person has an absolute right to withdraw support.

The claimants also submitted that there was a failure to comply with the section 55 duty to act in the best interests of the child. This was because of the insistence on specific evidence being provided before the assessment of the child’s best interests is carried out. The claimants also said that the delays were not in the children’s best interests.

It was also argued that the Home Secretary was required to put in place administrative measures to reduce the risk of inhuman and degrading treatment to a reasonable minimum and that she was in breach of that duty because of the failure to process change of conditions applications with sufficient urgency.

On 30 August 2024 the Home Office served a witness statement saying that waiting times for change of conditions applications were approximately ten weeks and that any representations made were carefully reviewed and cases expedited where appropriate. The claimants’ solicitors then asked for further details of the expedition process.

The Home Office response was that:

cases are not routinely monitored for expedition, but monitoring does take place on a case-by-case basis depending on the nature of the reasons that might justify expedition, and that requests for expedition are dealt with on a case by case basis, and there is no list of criteria for deciding when expedition is appropriate.

The High Court noted that nothing in the Home Office’s evidence “suggests that there has been any form of unexpected spike in applications, or any increased workload, which might explain what appears to have been a steady increase in the average time it takes to determine applications.”

In SAG’s case, although her NRPF condition had been lifted, because she had continued to be in received of public funds it was submitted that she was “at risk of criminal proceedings, recoupment of the public funds paid, and an adverse future decision on leave to remain”. She therefore sought an order quashing the decision of 5 February 2024 to reimpose the NRPF condition. This would mean that the position was as though the NRPF condition had never been reimposed, which would then mean that she maintained her entitlement to claim public funds throughout. The Home Secretary did not oppose the quashing order but said that it was unnecessary.

The High Court’s decision

The High Court said at paragraph 77 that the Home Secretary is “not entitled to adopt a “who blinks first” or “wait and see” approach, that is to refuse to remove a NRPF condition unless or until the applicant is rendered street homeless”. This is because there is no need to prove actual destitution, as an imminent risk of destitution will also engage the obligation to lift the NPRF condition.

However the court also said [at 79]:

There is not therefore anything unlawful or irrational or irrelevant in asking for further evidence from the third-party supporter, albeit they cannot be forced to provide evidence. If they choose not to provide evidence then a decision must be made on such evidence as is available, as the guidance makes clear. That may mean that there is a less compelling case that the applicant is at imminent risk of destitution than would be the case if there were positive evidence that the third-party was unable to continue providing support.

The court went on to find that the decision in LG’s case relating to the provision of third party support being available on an ongoing basis was one that was open to the Home Secretary on the evidence. The decision in BPB’s case was found to be unlawful, as the decision had focussed on adequacy of accommodation rather than the assertion that LPB’s sister was unable to continue providing support, which was not addressed and should have been.

On the section 55 point, the High Court said that the decision maker had addressed the question of the child’s best interests in both LG and BPB’s cases and that there was no evidence that the children were unsettled or otherwise disadvantaged by delay and uncertainty. The court said that while there were:

some aspects of the reasoning in the decisions which can, in isolation, be read as imposing unrealistic evidential expectations. However, when the decisions are read fairly, and as a whole, in each case the decision maker considered the child’s best interests with some care and did not simply refuse to engage in the process because of a missing piece of evidence.

The court considered that there had not been enough explanation of why the current situation was not in KG’s best interests. In BPB’s case evidence had been provided and it was not reasonable for the decision maker to have concluded that it was in his interests to maintain the NRPF condition.

On the final point, the “low-level systems duty” argument, the court referred to ASY v Secretary of State for the Home Department [2024] EWCA Civ 373 in which it was said that timescales of two to four months did not “sit properly with dealing with an application from someone who is at immediate risk of falling into such a state of extreme destitution that their rights under article 3 are about to be breached”. The Home Office’s evidence was that the average time take to decide the applications is ten weeks which is obviously too long where a person is at immediate risk of inhuman and degrading treatment.

The court said that there is a need for a sufficient system to ensure that cases are expedited where needed and the evidence from the Home Office did not show that this was the case. The court rejected the assertion by a Home Office official that the ability to make a complaint or send a pre action letter was enough.

While accepting that the court should not impose a disproportionate or unrealistic burden on the Home Office, it stated that the current system does not even do the bare minimum, which is “if the average time to determine an application is as long as 70-days, the system needs to ensure that applications are considered, on a triage basis, sufficiently swiftly to enable case-by-case review and expedition to be effective in reducing the risk.” The court concluded that there was a breach of the low-level systems duty and the claims succeeded on this point.

In SAG’s case, the court declined to quash the decision to reimpose the NRPF condition because the Home Secretary had directly accepted that the decision was unlawful and as a result the court did not consider that the risks identified were likely to materialise. The court said that “It is in the interests of good administration that where such mistakes are made they are corrected quickly without recourse (or continuing recourse) to resource intensive, time consuming and public fund draining litigation”.

It was of course entirely within the remit of the Home Secretary to have withdrawn the decision that she accepted had been made unlawfully, which would have entirely removed the risk to SAG and ended the proceedings.

In summary, the individual challenges were dismissed for SAG and LG. BPB was successful on the section 55 ground, and the challenge to the system as a whole was successful and a declaration granted.

Practical implications of the decision

The court’s decision in SAG should certainly not dissuade anyone from bringing judicial review challenges to cases where the NRPF condition has been reimposed. However the strong indication here is that a concession by the Home Secretary that the decision was unlawful should be enough to avoid the numerous potential negative consequences of a person who continued to receive public funds during the period the NPRF was unlawfully imposed.

There are some general points here that practitioners should ensure are addressed when making change of conditions applications, for example making sure that the best interests of the child are explicitly addressed and the impact that any delays in deciding the application will have on them. Where the statutory definition of overcrowding is met, this should be made explicit and evidence provided (for example sometimes property details can be found online).

I think the Home Office is being entirely unrealistic in expecting people to be able to get a letter from a local authority, a health visitor, social worker or other health and social care professional evidencing overcrowding in cases where there is not already involvement with these people or organisations. If the Home Office continues to insist on evidence such as this then it may be necessary to approach them to get a formal written “no we won’t do that” and then submitting that. An excellent use of everyone’s time.

Even getting that “no” may not be possible and many families may, entirely reasonably, be reluctant to get social services involved in their lives. Despite what the court has said, it is unreasonable to insist on this sort of evidence and it just creates more work for everyone, and more delays for those affected by NRPF.

It is perfectly reasonable for someone to not want to have the Home Office pore over their finances but it is unclear from this decision in what circumstances they will be permitted to refuse and a change of conditions application still succeed. The court did say that if the third party does “choose not to provide evidence then a decision must be made on such evidence as is available, as the guidance makes clear” [at 79]. There will be cases that can still succeed without third party evidence, or without providing as much as the Home Office is asking for, but this will be fact specific. Those who have provided support for longer will likely need to provide more evidence that it cannot continue than those who have only supported for a short period of time.

To state the obvious, increasing the evidential burden on people, and in particular the practice of making unnecessary requests for further information, will only increase processing times for these applications. The Home Office may want to consider revising their position accordingly.

On delays, the Home Office will either need to reduce processing times as a whole or put in place a process for expedition. I can’t see them doing the former, and I can see the latter quickly also becoming overwhelmed given the level of need and difficult conditions of those subject to the NRPF condition. The better response is obviously to get rid of the condition, at a minimum from being imposed on those in the ten year route to settlement in one of the human rights routes as this is the biggest group applying to have the condition lifted.