On 15 February 2023, the High Court yet again found that the Secretary of State’s policy prohibiting migrants from accessing mainstream welfare benefits was unlawful. The policy, known as the no recourse to public funds (NRPF) condition, was the target of two judicial review claims brought on behalf of destitute claimants living with disabilities. As recently covered by Sky News, several weeks ahead of the expedited trial, the parties agreed a consent order settling the claims. The cases are R (HAA) v SSHD (CO/308/2023) & R (Ali) v SSHD (CO/3425/2022).

Background

Since Appendix FM of the immigration rules was introduced in July 2012, the vast majority of family migrants who are granted limited leave to remain in the UK are subject to the NRPF condition, barring them from mainstream welfare benefits, such as Universal Credit, Personal Independence Payments and Disability Living Allowance. This reflects the broader emphasis on self-sufficiency in Appendix FM, as reinforced by sections 117A to 117B of the Nationality Immigration and Asylum Act 2002.

The Immigration Rules currently provide for two narrow exceptions to the general policy. GEN.1.11A states the NRPF condition “will be” imposed unless the decision-maker is satisfied that:

“(i) the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or at risk of imminent destitution; or

(ii) there are child welfare reasons that outweigh the rationale for imposing the NRPF condition.”

The Rules are supplemented by guidance Family life (as a partner or parent), private life and exceptional circumstances version 18.0. Curiously, the guidance adds a further exception in cases of “exceptional financial circumstances”. This provision is not replicated in the rules. The guidance explains that the additional exception “relates only to the applicant’s financial circumstances” rather than any broader matters.

The Secretary of State produced an updated policy equality statement on the NRPF condition in April 2022. It acknowledged that some disabled persons subject to the NRPF condition may require access to benefits even if they were not destitute, as defined. This would seem to follow because some disability-related benefits are not means-tested. However, once again, this exception is not reflected in the rules themselves.

In practice, many applicants struggle to satisfy the destitution test due to the Home Office frequently requiring 6 months’ worth of detailed financial and other evidence regarding accommodation and support networks. Disabled applicants often encounter particular difficulties providing evidence of their destitution or imminent destitution, as acknowledged by the policy equality statement. Delayed decision-making is also commonplace. For example, the average waiting time for decisions in the second quarter of 2022 was 45 days, and this only decreased to 39 days by last quarter.

The claims

The claimants HAA and Ms Ali were two unrelated migrants who the Secretary of State had granted limited leave to remain subject to NRPF conditions. Having fallen on hard times, they requested the Secretary of State lift the NRPF condition from their leave due to their destitution and disabilities. In each case, the decision-maker refused to lift the condition and gave little or no consideration to the claimants’ disabilities. Urgent judicial review proceedings ensued.

The grounds of challenge were, in summary, that the NRPF policy, comprised of both the rules and guidance mentioned above, failed to reflect the Secretary of State’s broad statutory discretion (in section 3(1)(c)(ii) of the Immigration Act 1971) as to whether or not such a condition should be imposed on a person’s limited leave to remain in the UK. They also failed to reflect her equality duties, to make reasonable adjustments for disabled applicants; to take account of their needs; and to take steps to meet their differential needs (by sections 6, 20, 29(7) and Schedules 1 and 2 of the Equality Act 2010).

The court’s order

Although settlement means we do not have the benefit of a reasoned judgment from the High Court, the sealed order agreed between the parties clarifies that the rules and guidance are:

“…unlawful for their failure to instruct caseworkers adequately in relation to exceptional circumstances and/or disability as grounds for potentially requiring recourse to public funds to be granted to applicants who may not be destitute or imminently destitute”

and

“…where an application has been made for non-imposition, or lifting, of the no recourse to public funds (‘NRPF’) condition, the Defendant retains a discretion not to impose or to lift the NRPF condition on the grounds that although the applicant is not destitute (or imminently destitute), the effect of their disability may create exceptional circumstances that require them to be permitted to have recourse to public funds”.

What happens next?

The rules and guidance are likely to remain unlawful unless and until the policy is amended in a way that complies with the Secretary of State’s duties to disabled applicants.

As a result of this litigation, further amendments to the NRPF policy are anticipated in Autumn 2023. Until then, individuals who are subject to the NRPF condition and (i) are affected by disability, including as carers of a disabled person; or (ii) face other exceptional circumstances, may rely on the court’s order in HAA to request recourse to public funds where necessary.

Refusal decisions or decision-making procedures that fail to take into account an applicant’s disability or exceptional circumstances may be vulnerable to public law challenge.

Addendum: an amendment was made in the latest Statement of Changes to the immigration rules recognises a third exception to the NRPF condition:

“GEN.1.11A. Where entry clearance or leave to remain as a partner, child or parent is granted under D-ECP.1.2., D-LTRP.1.2., DECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D LTRPT.1.2., if the decision maker is satisfied that:
(a) the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or is at risk of imminent destitution; or
(b) there are reasons relating to the welfare of a relevant child which outweigh the considerations for imposing or maintaining the condition (treating the best interests of a relevant child as a primary consideration); or
(c) the applicant is facing exceptional circumstances affecting their income or expenditure then the applicant will not be subject to a condition of no access to public funds. If the decision maker is not so satisfied, the applicant will be subject to a condition of no access to public funds.”

While the amendment might be seen as a quick turn around it also appears to be inconsistent with the terms of the Secretary of State’s own equality assessment and, arguably with the terms of the declaration that has been granted by the High Court.

It remains to be seen how this third exception will operate in practice, however, the reference to ‘income or expenditure’ may be liable to drag caseworker consideration back to the destitute test, giving rise to potential unlawfulness.

The author acted for the claimants in this case and has acted for a number of other clients in similar matters in recent years.

The claimants in this case were represented by Adam Hundt of Deighton Pierce Glynn, instructing Ben Amunwa of The 36 Group. The claimants were supported by charities and partner organisations, The Unity Project (‘TUP’), Refugee and Migrants Forum of Essex & London (‘RAMFEL’) and  Impact: Law for Social Justice.