No recourse to public funds (NRPF) is a not a new thing for migrants in the UK, and always appears on their BRPs. For those with ‘No Public Funds’ on their BRP, they have no recourse to public funds and are not able to claim most benefits, tax credits or housing assistance that are paid by the state.
Previously, the Home Office approach had been to only consider lifting the NRPF condition in family life, private life and British National overseas (‘BNO’) cases. However, benefits remain unavailable to the majority of migrants, including the large numbers of students who come to the UK. Since many of them are likely to be on unstable low incomes, the lack of welfare and housing support makes living in the UK difficult for them.
However, that restriction no longer persists. The Home Office has recently released a new policy directive detailing the circumstances in which NRPF conditions will be lifted for those in the UK on student leave or as dependants of students, based on a fresh judgement by the High Court.
Let’s take a look at the case in question, and why the court made their judgment.
Background
PA, a Ghanaian national, arrived in the UK as a dependent on her ex-husband’s student visa but was subsequently abandoned by him. She later gave birth to NA, whose father was not PA’s ex-husband. Since NA’s father had settled status in the UK at the time of NA’s birth, NA was granted a British passport.
PA supported herself and NA as a single mother through work, but they faced financial difficulties. The defendant initially granted PA a fee waiver to apply for a visa under the family life route based on her relationship with NA. While this application was pending, their circumstances worsened. PA promptly applied to remove the NRPF condition from her student dependant visa. However, the Home Office initially refused to consider PA’s NRPF application, citing an inability to alter the conditions of her leave. PA issued judicial review proceedings against this decision and the related policies.
After obtaining permission for judicial review and expediting the claim, the Secretary of State for the Home Department (SSHD) made several crucial decisions. These included revoking NA’s British passport, refusing PA’s family life application because NA was no longer recognized as a British citizen, and maintaining the NRPF condition. PA appealed the family life refusal and applied to amend their grounds for judicial review to target the most recent NRPF refusal decision.
Section 3 of Immigration Act 1971
Section 3(1) of the Immigration Act 1971 (IA 1971) empowers the Secretary of State to grant limited leave to enter or remain in the UK to persons who require it. IA 1971, Section 3(2)(c)(ii) provides that the Secretary of State may grant limited leave to enter or remain subject to the NRPF condition. However, this statute does not state the circumstances in which the NRPF condition applies.
While the Immigration Rules provide that the NRPF condition should be lifted where (i) the person is destitute or imminently destitute; (ii) there are significant child welfare considerations; or (iii) there are other exceptional circumstances, presently, those exceptions only apply to persons on family, private life or BNO visas.
Court opinion
During the substantive judicial review, the judgement approved two declarations that were agreed by both sides. Firstly, the Secretary of State retains a discretion to lift or not impose the NRPF condition on a person’s grant of limited leave to remain. Secondly, it was unlawful for the Secretary of State to fail to adequately identify for caseworkers the statutory discretion to lift the NRPF condition for those on student visas.
The court held the following in relation to some of the declarations presented by claimants:
1. The Secretary of State retains a discretion to lift or not impose the NRPF condition on a person’s grant of limited leave to remain, including for persons with leave other than on family, private life and BNO routes.
2. The Secretary of State’s initial decision refusing to consider PA’s application to lift the NRPF condition was unlawful because it did not recognise the statutory discretion which applies irrespective of an applicants’ visa type.
3. Thirdly, the Secretary of State’s failure to adequately identify for caseworkers the statutory discretion to lift the NRPF condition for those on student visas was unlawful.
4. Even if the Immigration Rules do not refer to the Secretary of State’s discretion to lift the NRPF condition from a grant of limited leave to remain (as with the student visa provisions), the Secretary of State nevertheless retains the statutory discretion to lift or not impose the NRPF condition and she must consider requests to lift the NRPF condition from applicants on any type of visa.
The above is a summary of the court’s judgement.
Lastly, the court noted the claimants’ other challenges were superseded by the Secretary of State ‘s issuing of the new policy, according to which, the Secretary of State promptly granted NS access to public funds.
In the end, the Secretary of State agreed to reconsider NA’s application for a British passport. On the second day of the hearing, the Secretary of State granted NA access to public funds and the parties reached a settlement.
Our comments
The approval of this case is definitely good news for immigrants who need more support from the public funds, opening up the possibility for more visa holders to apply to lift the NRPF condition from their leave to remain. What’s truly remarkable is that this opportunity isn’t limited to specific visa types; even immigrants with student visas can benefit from it.
The judgment also underscores the government’s responsibility, calling on them to provide clear policy guidance to ensure that statutory rights are correctly applied. Following the judgement, the Secretary of State to publish a new interim policy, ‘OPI 1415’, outlining how such applications should be considered, by reference to child welfare, destitution and whether applicants can be reasonably expected to return to their home country.
The approval of this case is a significant step forward in securing the rights for immigrants in the UK, offering them a long-awaited opportunity to improve their lives and visa conditions.
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