The High Court has determined that there are no damages available for people who were subject to the no recourse to public funds (NRPF) policy in the case of Home Office v ASY [2023] EWHC 196 (KB). The policy was declared to be unlawful in R (W, a child by his litigation friend J) v Secretary of state for the Home Department [2020] EWHC 1299 because it did not ensure that an NRPF condition would be lifted where someone would be at imminent risk of becoming destitute, thereafter experiencing a breach of Article 3 of the European Convention on Human Rights.

The case concerned people who made change of condition applications to have the NRPF condition removed from their leave to remain once they had actually become destitute. None of the claimants actually experience a breach of Article 3 due to becoming homeless, but the judge described how “the witness statements of the claimants all speak of their states of anguish, worry and desperation which would be consistent with the financial straits the Claimants were in”.

In the County Court, the claimants successfully established an entitlement to damages for breach of Article 3 based on the Home Office’s failure to implement an Article 3 compliant system for dealing with NRPF applications. Damages were awarded and the Home Office appealed to the High Court.

Unfortunately, the High Court determined that there was no breach of Article 3 leading to a right to damages in respect of particular individuals subject to the unlawful policy. The judge concluded:

“In the case of persons subject to a [no recourse to public funds] condition it is open to them to apply to the SSHD to lift that condition, as the Claimants did here. On the basis of the court’s finding in W it would be unlawful if the SSHD were to refuse an application in circumstances where a person was at imminent risk of destitution, or to delay unreasonably in lifting the condition in those circumstances, but that is not the way in which the case has been advanced by these Claimants on this preliminary issue. Unless or until a Claimant can show that their CoC application has been wrongly refused, or that there has been unreasonable delay in lifting the NRPF condition, there is no relevant violation giving rise to harm, thus no basis for just satisfaction under section 8 of the 1998 Act and the Claimants are not victims of the particular unlawfulness identified in W.

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For the reasons I have given I do not consider that, by operating a scheme found to be unlawful for the reasons given in W, the SSHD was in breach of a systems duty owed to persons subject to an NRPF condition of their LLTR. There is thus no causal link between the damages claimed and a violation. It has to be remembered that the purpose of Article 3 of the Convention is to protect persons against ill-usage of a very high degree of severity. At no stage did these Claimants suffer destitution to the point of IDT [inhuman or degrading treatment] and when they applied to have the condition lifted, their requests were granted.”

This case ended up in the High Court on appeal from a trial of a preliminary issue in the County Court. There is no information in the judgment on how the case will proceed from here, but it is possible that the claimants might argue that, in their particular cases, support would have been granted earlier but for the existence of the unlawful policy.