- What is the legal basis for the “no recourse to public funds” condition?
- When do the immigration rules say the “no recourse to public funds” condition should be imposed?
- What is Home Office policy on when the “no recourse to public funds” condition will not be imposed or can be lifted?
- Who is affected?
- Have there been legal challenges to the “no recourse to public funds” condition?
- What public funds does the condition prevent access to?
- What services are still available?
The “no recourse to public funds” condition is imposed on grants of limited leave to enter or remain with the effect of prohibiting the person holding that leave from accessing certain defined public funds, set out at paragraph 6 of the immigration rules. A person who deliberately claims public funds despite such a condition is committing a criminal offence. There may well be future immigration consequences as well.
Section 115 of the Immigration and Asylum Act 1999 prevents people subject to immigration control from accessing a range of welfare benefits unless they fall into one of the exceptions.
It is possible to ask the Home Office to lift the condition from a person’s grant of leave, following which they can access benefits that they are eligible for.
What is the legal basis for the “no recourse to public funds” condition?
The current policy of imposing a “no recourse to public funds” requirement in human rights cases was introduced on 9 July 2012, initially via the immigration rules and later in primary legislation. Prior to that the policy had been to allow access to public funds in human rights cases.
When limited leave to enter or remain is granted to a person, the Immigration Act 1971 allows the Secretary of State to impose certain conditions on that leave. This power is conferred by section 3 of the Act. Among the possible conditions is one requiring the person “to maintain and accommodate himself, and any dependants of his, without recourse to public funds”.
This is a discretionary power. It does not have to be used. Decisions on when the various powers will and will not be used are guided by the immigration rules.
When do the immigration rules say the “no recourse to public funds” condition should be imposed?
In practice, the “no recourse to public funds” condition is imposed on almost everyone granted limited leave. For example, partners, spouses, children, parents of a child in the UK and adult dependent relatives all have the condition imposed on their leave in most cases.
There are some exceptions, these have been widened considerably over the past few years, predominantly as the result of strategic litigation. For example, if leave was granted on the basis of private life under Appendix Private Life then we look at paragraph PL 10.5 of the rules:
The grant of permission will be subject to the following conditions:
(c) if the decision maker is satisfied that:
(i) the applicant is destitute, as defined in section 95 of the Immigration and Asylum Act 1999, or is at risk of imminent destitution; or
(ii) 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
(iii) 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.
For family cases made under Appendix FM, identical wording is used at paragraph GEN.1.11A.
The general rule for these categories is therefore that the “no recourse to public funds” condition will normally be imposed but there is a discretion not to. As ever, it is important to then turn to Home Office guidance to see how the rules work in practice.
What is Home Office policy on when the “no recourse to public funds” condition will not be imposed or can be lifted?
Home Office policy on when a “no recourse to public funds” condition might not be imposed or can be lifted is set out in the Family life and exceptional circumstance guidance:
Access to public funds
In all cases where you are granting entry clearance or permission to stay as a parent on the 5-year route to settlement, you must grant with no access to public funds.
In all cases where you are granting entry clearance or permission to stay as a parent on the 10-year route to settlement, you must consider whether to grant access to public funds.
You must grant access to public funds where the applicant has provided satisfactory evidence that:
- they are destitute or at risk of imminent destitution
- there are reasons relating to the welfare of a relevant child which outweigh any reasons for not allowing access
- they are facing exceptional financial circumstances relating to their income or expenditure.
More detailed guidance on how these decisions are made is set out in ‘Access to public funds within family, private life and Hong Kong BN(O) routes’. This states that when granting leave under Appendix FM or Appendix Private Life, decision makers must consider whether there is evidence that the condition should not be applied. If already granted leave, those within Appendix FM, Appendix Private Life and the Hong Kong (BNO) route can apply to have the condition lifted.
Some common examples of where it may be necessary to have the condition lifted could include where there has been a relationship breakdown, or a new baby meaning the mother cannot work, or where someone has lost their job or is on a zero hours contract, or where ill health prevents the person from working.
The guidance is explicit that evidential flexibility applies with these applications. This means that a decision can be made without every piece of evidence or information required by the online application. This applies where the decision maker is satisfied that “clear and compelling” evidence of the applicant’s financial situation has been provided and demonstrates that they meet the criteria to have the condition lifted.
The guidance also provides for two requests for further evidence to be made before an application is rejected.
Where a local authority has assessed a person as destitute, the Home Office will nevertheless conduct its own assessment. However receipt of section 17 support is very strong evidence that the condition should be lifted.
The Home Office also expects that evidence is provided with every application for further leave to remain, regardless of whether an applicant has previously been granted leave without a condition of no recourse to public funds.
People who were granted leave to enter and remain in the UK on the basis of their family and private life without recourse to public funds and who now wish to request removal of that condition can apply to the Home Office separately. This is called a change of conditions application.
Who is affected?
The Unity Project charity and law firm Deighton Pierce Glynn have published a report examining the disproportionate effect of the no recourse to public fund condition on women, low-income families, disabled people, pregnant women and black and ethnic minority British children.
One story which particularly stood out was that of a single mother called Sarah. Sarah had two children, one of which was British. Despite working full-time, Sarah’s rent was so high that she was forced to move into a single room where the three of them had to share a bed. Often, the family had to relieve themselves in the garden because of the lack of access to the shared toilets.
The statistics for the year ending June 2023 show that for the period April to June 2023, 868 change of conditions applications were made and 506 decisions made. Two thirds of the applications during this period were made by women. The overall success rate was 78% which demonstrates that these applications are worth doing. Despite this, many people still seem unaware that this is an option.
Have there been legal challenges to the “no recourse to public funds” condition?
Yes. The policy was initially challenged in R (Khadija BA Fakih) v Secretary of State for the Home Department IJR  UKUT 513 (IAC). In this case it was argued that the change of policy was not brought about in the right legal way. The case succeeded but the Home Office responded by reintroducing the change by the correct legal means.
A challenge to the legality of the no recourse to public funds policy was then due to be heard by the High Court in March 2019. Before the case went to trial the Home Office conceded that the policy should be reviewed and that the claimants should receive compensation.
Since then, strategic litigation in this area has continued at pace:
- May 2020: High Court rules against government on no recourse to public funds
- May 2020: Part of no recourse to public funds policy declared unlawful: full judgment out
- May 2020: Home Office softens no recourse to public funds policy following High Court defeat
- May 2021: Fresh blow to “no recourse to public funds” scheme
- February 2022: Home Office suspends ten-year route punishment for migrants granted public funds
- June 2022: Home Office policy on no recourse to public funds found unlawful, again
- February 2023: No damages for unlawful no recourse to public funds policy
- March 2023: No recourse to public funds policy found unlawful (again)
All of this litigation has been brought by Deighton Pierce Glynn on behalf of their clients, with the support of The Unity Project.
What public funds does the condition prevent access to?
There is a definitive list of what counts as “public funds” for the purposes of the Immigration Rules at paragraph 6:
- attendance allowance
- carers allowance
- child benefit
- child tax credit
- council tax benefit
- council tax reduction
- disability living allowance
- discretionary support payments by local authorities or devolved administrations in Scotland and Northern Ireland which replace the discretionary social fund
- housing and homelessness assistance
- housing benefit
- income-based jobseeker’s allowance
- income related employment & support allowance
- income support
- personal independence payment
- severe disablement allowance
- social fund payment
- state pension credit
- universal credit
- working tax credit
This list is to be significantly changed for those in Scotland from 5 October 2023, as set out in the most recent statement of changes.
There are some exceptions for nationals of Algeria, Croatia, Morocco, San Marino, Tunisia and Turkey, for example relating to tax credits.
In respect of child and working tax credits, it is important to highlight that if only one member of a couple is subject to immigration control, then for most tax credits purposes neither are treated as being subject to immigration control.
What services are still available?
Free school meals are available to those with no recourse to public funds, the full guidance is here.
Benefits and services not listed in paragraph 6 of the rules are still available. This includes contributory benefits, council tax discounts such as the sole occupancy discount and other services such as health and state funded schooling. There may be other obstacles to accessing those services, such as passport checks for NHS access and only certain people qualifying for home tuition fees or maintenance grants but these are not directly linked to the “no recourse to public funds” condition.
Benefits not within the definition of public funds include:
- Contribution based Jobseeker’s Allowance
- Guardian’s allowance
- Incapacity Benefit
- Contribution-based Employment and Support Allowance (ESA)
- Maternity allowance
- Retirement pension
- Statutory maternity pay
- Statutory sickness pay
- Widow’s benefit and bereavement benefit
Housing provided by a housing association does not count as access to public funds and there are other exceptions as well.
The Unity Project provides pro bono legal support to migrants facing homelessness or extreme poverty because of the no recourse to public funds condition: www.unity-project.org.uk.
This article was originally published in February 2017 and has been updated so that it is correct as of the new date of publication. Thanks to Bilaal Shabbir for his assistance with a previous update.