High Court challenge to the ‘No Recourse to Public Funds’ policy

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High Court challenge to the ‘No Recourse to Public Funds’ policy

'Hostile environment' policies introduced by Theresa May

Today and tomorrow the High Court will hear a challenge to the Home Office’s policy of imposing a ‘No Recourse to Public Funds’ condition on migrants who are on the 10-year family/private life route to settlement. The case is being brought by Deighton Pierce Glynn on behalf of a family affected by the policy and is supported by The Unity Project. The organisation I work for, Project 17, which works to improve access to local authority support for destitute migrant families, is intervening in the case.

The ‘No Recourse to Public Funds’ (NRPF) condition denies people who are ‘subject to immigration control’ access to social housing and most welfare benefits, including Universal Credit, child tax credits and child benefit, as well as support that is tied to benefits, such as free school meals. It affects undocumented migrants and most migrants granted limited leave to remain in the UK.

In 2012, as part of the government’s ‘hostile environment’ measures, the Home Office began automatically applying the NRPF condition to people granted leave to remain on family or private life grounds. Research has found that being denied benefits and housing assistance has a disproportionate impact on women, low-income families, disabled people, and black and minority ethnic (BAME) children.

Without access to social security, people with NRPF have no safety net to fall back on. As such, they are at high risk of destitution, exploitation and abuse. This issue has been brought into sharp relief by the Covid-19 pandemic, which has generalised insecurity and exacerbated poverty.

The claimant in the case argues that the Home Office’s policy of applying the NRPF condition is discriminatory, and that it is incompatible with Article 3 of the European Convention on Human Rights (ECHR) because it forces people into destitution. While individuals with leave to remain can apply to the Home Office to have the NRPF condition lifted (this is known as a ‘Change of Conditions’ application), the claimant argues that this is an inadequate protection.

The Home Office policy stipulates that the NRPF condition can only be lifted in cases where individuals are destitute, where there are particularly compelling reasons relating to the welfare of a child on account of very low income, or where there are exceptional circumstances in a person’s case relating to their financial circumstances. This means that in most cases a person must first become destitute before they will be given access to public funds. As such, it is argued, the mechanism is an insufficient protection against breaches of Article 3. Research conducted by The Unity Project has also found that procedural barriers to making a ‘Change of Conditions’ application, including the complexity of the application form and the lack of legal aid, effectively act to prolong destitution.

Project 17, represented by the Public Law Project and Amanda Weston QC, is intervening in the case. Our intervention seeks to support and strengthen the challenge against the NRPF policy by offering evidence on the availability and adequacy of support under section 17 of the Children Act 1989.

Section 17 places a duty on local authorities to safeguard and promote the welfare of children ‘in need’ in their area. Under this legislation, some families with NRPF can access accommodation and limited financial support. The government has used the existence of section 17 support to justify the NRPF policy. But our experience of supporting families with NRPF has shown us that the ‘safety net’ of section 17 support is severely broken. The pressures of austerity and cuts to local authority budgets make it extremely difficult for families to access such support. All too often, parents are wrongly told they are not entitled to support. In some cases, threats are made to take children into care.

Six in 10 families who try to access section 17 support are refused. Those who do manage to access support are provided with very little. In some cases, the level of financial support is as low as £1.70 per person per day. These issues are having a detrimental impact on children, with many families being left street homeless or without enough money to eat or get to school. Our own research has shown that children whose parents have NRPF experience high levels of anxiety, social isolation and stress owing to not having enough to live on. A young person we interviewed, Miriam, age 17, described it as ‘just like living a life without being alive’.

The High Court case being heard today is not the first attempt to challenge the NRPF policy. Six years ago, in the case of R (Khadija BA Fakih) v Secretary of State for the Home Department (IJR) [2014], it was argued that the policy was unlawful because it should have been subject to parliamentary scrutiny and the Home Office had failed to consider its public sector equality duties set out in the Equality Act 2010. Although that case succeeded, the

Home Office subsequently reintroduced the policy via the correct legal means.

The present legal challenge is limited in scope to people with leave to remain on the ten-year-route to settlement. We hope it will secure justice for at least some of those who have been forced into destitution by the Home Office’s policies. Win or lose, we will continue to fight for the abolition of the NRPF condition for all, regardless of immigration status.