The High Court has declared that Home Office policy on allowing migrants to have access to public funds is unlawful for failing to take account of the best interests of children, or of a previous judgment along similar lines. The case is R (AB & ors) v Secretary of State for the Home Department [2022] EWHC 1524 (Admin). 

Background

It is almost a decade since the introduction of the ten-year route to settlement for people granted permission to stay in the UK on the basis of their family or private life, and the application of the no recourse to public funds (NRPF) restriction to grants of permission on the ten-year route. Since then, there have been numerous challenges to the no-benefits policy.

It was most recently held to be unlawful in May 2020 and April 2021, while litigation has also extracted concessions without the need for a full hearing. These challenges have been brought by Adam Hundt’s team at Deighton Pierce Glynn, instructing Alex Goodman of Landmark Chambers and Ben Amunwa of The 36 Group, with the support of The Unity Project, all of whom should be commended for their determination to continually chip away at this grim policy, particularly as it affects children.

The claimant in this latest case, AB, has two children; the judgment otherwise gives little information about the family’s circumstances. She initially challenged a February 2022 decision refusing to lift her NRPF restriction, and the subsequent administrative review decision. The Home Office conceded that the decisions had been unlawfully made and withdrew them, arguing that the judicial review was now academic as a result. On 16 May 2022 — two days before the hearing — another refusal was issued, then withdrawn, and another decision to refuse. The court gave AB permission to amend her grounds to challenge those decisions instead.

In doing so, Mr Justice Lane reiterated that such amendments must not be permitted to circumvent the judicial review process. But in this case the fact that a rolled-up hearing had been listed, and that it involved a general challenge to the rules and guidance, was relevant. The judge decided to tackle the general challenge in this judgment; if AB succeeded at this stage, that would be determinative of her case, whereas if the Secretary of State won there would be another hearing on the remaining arguments. This is a sensible approach against a background where the Secretary of State will often seek to rid herself of policy challenges by withdrawing the underlying decision, making it difficult to get these challenges to a full hearing.

Failure to change unlawful NRPF rules

Ground one of the challenge focussed on the Family life policy (version 16.0) and paragraph GEN1.11A of Appendix FM. AB argued that both provisions unlawfully failed to reflect the defendant’s obligations under section 55 of the Borders, Citizenship and Immigration Act 2009 (best interests of children).

GEN.1.11A had previously been held to be unlawful for this reason in R (ST and another) v Secretary of State for the Home Department [2021] EWHC 1085 (Admin). This was in April 2021, but a statement of changes amending GEN.1.11A in light of ST was only laid before Parliament in March 2022, to come into effect on 20 June 2022.

AB’s case was heard before the change took effect. She argued that “despite its unlawful nature, and despite the Divisional Court’s declaration following the judgment in ST, the defendant has continued to treat the present version of GEN.1.11A as if it were, in all respects, valid”.

The Secretary of State’s defence was that, although the unlawful wording remained in GEN.1.11A, in practice Home Office caseworkers were not using that paragraph of the Immigration Rules as written, but instead were “operating solely by reference to version 16.0 of the guidance”. The guidance, she argued, was compatible with both ST and the section 55 duty. Lane J fairly describes this position as “bizarre” (paragraph 48) in light of the fact that both the guidance and the decision letters in this case specifically cited GEN.1.11A. He held that it is

impossible to escape the conclusion that the combined effect of the present GEN.1.11A and version 16.0 of the guidance is to sanction or authorise unlawful conduct. 

Wording of the Family life guidance

There was a separate challenge to the guidance as being in breach of the section 55 best interests duty. This was on the basis that, in addition to considering the best interests of the child, caseworkers are directed to consider whether the NRPF restriction “would significantly impact on a child’s particular and essential needs”. Lane J held that this wording is unlawful:

The essential point… remains that in all cases where it would not be in the best interests of the child for the NRPF condition be maintained, the section 55 duty to make the child’s interest a primary consideration is operative. The present words tell caseworkers (wrongly) that this is not the position.

The offending words are still there in the latest version of the guidance, 17.0 (issued on the day of this decision). Given the previous delays in responding to court decisions, this may remain the case for some time. Anyone applying to have NRFP restrictions lifted should therefore include a reference to this case, as well as evidencing the impact on any affected children. The AB judgment moves the focus for change of conditions applications to where it should be: on the best interests of the child.