High Court finds Home Office’s delay in determining applications to lift NRPF conditions breaches Article 3 ECHR ‘systems’ duty

The High Court has found that the Home Secretary’s system for determining applications to lift conditions of no recourse to public funds (“NRPF”) for those with limited leave to remain in the UK was in breach of Article 3 of the European Convention on Human Rights (“ECHR”).

Background

When granting an individual limited leave to remain in the UK, the Home Secretary imposes a condition that the individual is excluded from mainstream welfare benefits unless (i) they are destitute or at imminent risk of destitution; (ii) the welfare of the individual’s child outweighs the considerations for the NRPF condition; and, (iii) there are exceptional circumstances affecting their income or expenditure.

The Home Secretary imposed an NRPF condition in each of the Claimants’ cases. The Claimants are three families with children (including two single-parent families) who were impacted by the NRPF condition and experiencing homelessness and hardship. 

The Claimants made Change of Conditions applications (supported by The Unity Project) asking the Defendant to lift the NRPF conditions in their case on the basis that they faced imminent destitution and that the welfare of the children required it. The Home Secretary refused their request to lift the NRPF condition. The Claimants challenged these refusals and the delays in the operation of the system for determining applications to lift NRPF conditions. 

By the date of the hearing, the Home Secretary had withdrawn all the decisions on the basis that they were unlawful. In two claims, the Home Secretary re-made the decision and maintained the imposition of the NRPF condition, some months after they had made their initial Change of Conditions application. The Defendant also provided evidence that, the average time taken to determine a request to lift a NRPF condition is 10 weeks.

Judgment

On 21 November 2024, Mr Justice Johnson found that the Home Secretary did not have an adequate system in place to reduce, to a reasonable and proportionate minimum, the risk of inhuman and degrading treatment and held that the Home Secretary was in breach of the “low-level systems duty” under Article 3 ECHR (§103, §118). He held that the Home Secretary’s evidence was “too vague” to show that her system was reduced to a reasonable minimum (§99) and that having a “case-by-case review” which allowed for expedition where thought necessary was insufficient to meet this duty (§102). The bare minimum required was that the system ensured that applications are considered, on a triage basis, sufficiently swiftly to enable case-by-case review and expedition (§102).

Mr Justice Johnson also allowed one of the Claimants’ claims on the basis that the refusal to lift the NRPF condition was unlawful and irrational (§86) and in breach of her statutory duty to have regard to the children’s best interests (§94).

The judgment is available here. 

The Claimants are represented by Donnchadh Greene, led by Ben Amunwa of 3PB and instructed by Adam Hundt, Bryony Goodesmith, and Nakita Hedges of Deighton Pierce Glynn. The Claimants were supported by The Unity Project.