Home Office policy on ‘No recourse to public funds’ in Article 8 cases declared unlawful

21.11.14 | |

The Upper Tribunal (Immigration and Asylum Chamber) has declared unlawful the Home Secretary's policy as to the criteria for imposing a No Recourse to Public Funds (NRPF) condition on people granted leave under Article 8. Claimants granted Article 8 leave on an exceptional basis are likely to be disproportionately vulnerable. The NRPF condition prevents such persons accessing public funds,  including disability benefits. It is the first occasion on which the UT(IAC) has exercised its judicial review powers by granting a declaration to the effect that a policy rather than an individual decision was unlawful.

 

Having adjourned the case to enable the Home Secretary to file further evidence in an effort to establish that she had complied with her Public Sector Equality Duties (PSED) in respect of disability, the UT concluded that she had not done so. It “declared that the Defendant’s policy issued in October 2013 as to the criteria for imposing a condition of No Recourse to Public Funds, as set out in Part 8.0 of the chapter on Appendix FM of the Immigration Directorate Instructions, is unlawful by reason of the Defendant’s failure to discharge her Public Sector Equality Duties under s.149 of the Equality Act 2010.”

 

It also quashed the decision to impose the condition on the Claimant, stating that “the Respondent's policy [being] unlawful for failure to have due regard to the PSED, then a decision made in reliance on the terms of such unlawful policy must of itself be unlawful.” The decision opens the way to others granted Article 8 leave with a NRPF condition seeking to have it quashed on the basis that the policy was unlawful.

 

It further held that the Home Secretary had failed to discharge her Public Sector Equality Duties in respect of her treatment of the Claimant's case by failing to make sufficient enquiries in order to determine whether the Claimant met the statutory definition of disability.

 

It made a second declaration that the policy amounted to a rule that the Home Secretary had unlawfully implemented without having laid it before Parliament. It rejected the Home Secretary's case that "The stipulation of “exceptional circumstances” in the Respondent’s policy [as to the criteria for imposing a NRPF condition] is amply flexible and therefore the Policy is not in the nature of a rule." The UT concluded on the contrary that under the policy "exceptional circumstances" were limited to "whether an applicant is destitute or whether there are particularly compelling reasons for allowing recourse to public funds relating to the welfare of a child of a parent in receipt of a very low income." It therefore held that "the Respondent’s policy cannot be said to be advisory in character...  - it lacks any flexibility and constrains a decision-maker to imposing a NRPF condition if an applicant has not met identifiable and specific criteria". The UT “declared that the Defendant’s policy ...  is unlawful insofar as it contained a rule applying to persons granted leave outside of the Immigration Rules that had not been laid before Parliament.”

 

Mark Henderson, instructed by Adam Hundt at Deighton Pierce Glynn, acted for the Claimant in the case, R (Fakih) v Secretary of State for the Home Department IJR [2014] UKUT 513 (IAC). The judgment is published here.

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