26 Mar Major Home Office concession on NRPF policy

Our client was on the 5 year route to settlement, but lost her job as a result of the pandemic.  She had to apply for recourse to public funds, but the Home Office insisted that the consequence of this was that she would be moved on to the 10 year route to settlement.  She has successfully challenged that decision, so she will remain on the 5 year route and have recourse to public funds.

The ‘no recourse to public funds’ policy, as it is known, was introduced in 2012 as part of the ‘hostile environment’.  It has been subject to challenge on a number of bases, most recently in a case brought by another client of ours  in which judgment is awaited.

Another pernicious element of the NRPF policy is the Home Office’s practice of moving people from the 5 year route to settlement to the 10 year route to settlement simply because they have been forced to apply to have the NRPF condition lifted from their leave to remain.

This happened to a client of ours, who had limited leave to remain in the UK as the sole carer of a British child, and had been supporting herself and her children by working as a carer.  She was unable to continue working due to the pandemic, so she had to apply to have the NRPF condition so as to enable her to access public funds (ie Universal Credit) in order to avoid destitution and homelessness.  In response to the application the Home Office told her that if she continued with it she would be moved from the 5 year route to settlement to the 10 year route to settlement.  Not only that, but if she then became able to support her family again without recourse to public funds she would have to restart the 5 year route.

Our client had no choice but to proceed with the application – it was that or destitution – but in doing so she asked the Home Office to exercise its discretion not to move her on to the 10 year route.   The Home Office refused, claiming that it had no such discretion, and that in any event the policy underpinning that decision was justified and proportionate.

Our client therefore applied for judicial review of the decision, on the grounds that the Home Office had fettered its discretion as there was no such requirement in the Immigration Rules themselves; and that in the circumstances of the case the decision was disproportionate and a breach of s55 Borders, Citizenship & Immigration Act 2009.  One of the main thrusts of the argument was that the pandemic had caused the need for recourse to public funds, so penalising our client for this was contrary to the many promises made by the government (including the Prime Minister) in the early days of the pandemic, that nobody would have their immigration status adversely affected by the pandemic.  Moreover, our client’s reasons for requiring recourse to public funds had no connection to the government’s stated purpose of the policy (to promote integration and economic self-sufficiency).

After proceedings were issued, the Home Office conceded the claim and agreed that the Claimant would remain on the 5 year route to settlement despite having recourse to public funds.  The final order is awaited, but the obvious implication is that the Home Office now accepts that it has discretion not to move people on to the 10 year route solely because they have had recourse to public funds.

Although this is a very welcome development, and gives hope to others in our client’s situation, it is unsatisfactory that the existence of this discretion is not clear in Home Office guidance/policy, and that it is unclear in what circumstances that discretion might be exercised.  The Unity Project tried to continue with our client’s case by applying to replace her as the Claimant and pursue the claim as a policy challenge , but the Court refused that application.  Other individuals will therefore have to press their individual cases in order to secure recourse to public funds whilst remaining on the 5 year route.

The barrister instructed in this claim was Ben Amunwa of the 36 Group , instructed by DPG partners Adam Hundt and Ugo Hayter who were assisted by trainee Althia Stephens  and paralegal Bryony Goodesmith.

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