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Leave To Remain Does Not Automatically Mean ‘No Public Funds’

Posted by: Gherson Immigration

Under normal circumstances, the so-called ‘no recourse to public funds regime’ (“NRPF regime”) represents one of the default conditions for a grant of leave to remain in the UK (“LTR”).

The High Court has recently ruled, however, that in certain circumstances, where the consequences of such a regime result in the applicant suffering inhumane or degrading treatment, the application of this condition by the Home Office may be unlawful.

The Claimant in the case that came before the High Court was a British citizen child, whose mother had LTR on the 10-year route to settlement and was subject to the NRPF regime. The mother had been employed as a carer for disabled people and earned a relatively low salary. The imposition of the NRPF condition therefore led her and her child to endure periods of destitution and resulted in the family being homeless for some time. They were rehomed by a local authority, but were required to relocate frequently, which severely disrupted the child’s education.

Prior to her most recent application, the Claimant’s mother provided evidence to show that she would be left destitute if the NRPF condition was imposed on her. Nevertheless, the Home Office disregarded her plea and the condition was enforced. A claim was therefore prepared arguing that the NRPF condition was unlawful. As a result of the pre-action correspondence, the condition was lifted by the Home Office before the case was able to come before the Court. However, this measure had no retrospective effect and did not allow the Claimant’s mother to take advantage of access to housing benefit and tax credits for the whole period of time during which the family had been subject to destitution. A judicial review application was subsequently filed to challenge the Home Office’s decision to impose the NRPF condition, and to seek wider accountability for the repercussions of the legal basis under which the NRPF condition is enforced.

The Claimant’s lawyers provided the Court with a number of arguments but succeeded on only one of them: namely, the Court decided that the Home Office had failed to ensure that the imposition of such a condition would not result in inhumane treatment contrary to the provisions of the European Convention of Human Rights and the Human Rights Act 1998. Among the arguments which failed were alleged discrimination on origin or ethnicity grounds, and the arbitrary nature of the decision-making process in cases concerning the NRPF regime.

The relief granted to the Claimant included a declaration by the Home Office that the relevant Immigration Rules, appendices and policies do not adequately give effect to the Home Office’s legal obligation not to impose the NRPF regime when the applicant will imminently “suffer inhuman or degrading treatment without recourse to public funds”, as well as an order that the Home Office publish the relevant instruction to its caseworkers. However, the Court emphasised that it remains up to the Home Office to decide whether the provisions of the Immigration Rules and policies themselves should be amended.

This case nevertheless represents a significant development in defending the rights of economically disadvantaged migrants and sets out the position regarding access to public funds for the future.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020

 

Elena Vaina 

  Elena Vaina

  Paralegal in our Complex Case team

 

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