The Home Office has conceded the latest in an increasingly long line of cases challenging the operation of the no recourse to public funds policy. This challenge was to the refusal to lift the no recourse condition from a person with section 3C leave as a student dependant. The case is PA & Anor, R (on the application of) v Secretary of State for the Home Department [2023] EWHC 2476 (Admin).

Background

The claimant came to the UK as the dependant of her husband who was in the UK as a student. After her marriage broke down, the claimant gave birth to her daughter, on 15 December 2021.

The claimant then made an application for limited leave to remain as a parent, following the grant of a fee waiver on 21 October 2022. As the application had been made in time, this meant that she had section 3C leave while it was being considered.

On 13 February 2023 the claimant made a change of conditions application, asking the Home Office to lift the no recourse to public funds restriction from her section 3C leave. As no decision had been made by the Home Office, six weeks later the claimant started receiving section 17 support on the basis of the council’s duty to safeguard and promote the welfare of her child.

Four months after the application had been made, the Home Office refused it, stating that the no recourse to public funds condition could not be lifted from the claimant’s type of leave. The letter stated that the condition could only be lifted from leave granted on the basis of family and private life (note that this is incorrect, the policy at that time provided for it to also be lifted from Hong Kong BN(O) leave).

The judicial review

An application for judicial review was lodged on 19 June 2023 challenging that decision as well as the immigration rules and guidance that were applied in making it. Lang J expedited the hearing because of the conditions that the claimant and her baby were living in.

The hearing started on 4 October 2023 and on the first day the Home Secretary filed and served a new internal operational policy instruction ‘OPI 1415: Change of conditions – discretion in applications outside of family life, private life or Hong Kong BN(O)’. This is appended to the judgment and states that “no change of conditions applications should be considered void” because of the immigration route the person is on.

After the second day of the hearing, late on 5 October 2023, the Home Secretary lifted the no recourse to public funds condition from the claimant’s section 3C leave. The parties then agreed an order to conclude the judicial review, which included the following declarations, approved by the judge:

a. The Defendant retains a discretion under section 3(1)(c)(ii) of the Immigration Act 1971 to lift (or not impose) the NRPF condition in relation to a grant of limited leave to remain, including in the case of migrants granted limited leave to remain other than on the family, private life and British national (overseas) routes;

b. the Defendant’s failure to adequately identify for caseworkers the statutory discretion in relation to change of conditions applications to lift NRPF for those granted Student leave was unlawful

The judgment concludes by commending The Unity Project and Project 17 for the substantial assistance they provided to the claimant as well as to the court.

New guidance

Late on 5 October 2023, the Home Office published a new version of their guidance on public funds. This states:

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:

• in any application involving a child the best interests of that child must be considered as a primary, although not the only consideration
• where an applicant, or their dependant 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 dependant 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 lifted

It seems from this that the Home Office may take the view in some, if not many, cases that a person should return to their country of origin rather than have access to public funds. However it is difficult to see how the Home Office can rely on this as a reason to reject a change of conditions application where they have not decided an outstanding application for further leave to remain, as was the case when PA had her change of conditions application refused.

Conclusion

It is getting difficult to come up with new headlines describing yet another successful challenge to the no recourse to public funds policy. People’s circumstances can and do change after they arrive in the UK and the Home Office must be prepared to exercise its discretion and act appropriately when this happens.

This challenge was brought by Adam Hundt’s team at Deighton Pierce Glynn, along with Alex Goodman KC of Landmark Chambers and Ben Amunwa of The 36 Group, who are on a truly extraordinary run with their work on this important issue.