This article is written not for the well-seasoned immigration lawyer but for the migrant, being the parent of a British or settled child, who is either in a low paid job or has no job at all but has the sole responsibility of the child, and who has been given leave to remain in the UK due to the particular circumstances of their case, under the 10-year route, but forbidden due to Home Office policy to claim financial assistance from the government. So what the Home Office gives with one had it takes away with the other! This policy is a breach of the migrant’s human rights under article 3 of the ECHR incorporated in the Human Rights Act 1998.
No recourse to public funds policy
Usually, such a person will have been granted permission to remain under the 10-year route (because they have not satisfied all the requirements of the immigration rules, for example, they might be here illegally or as overstayers), which means they must renew their stay here, and pay the home office fees and NHS surcharge in order to renew their status in the UK every 2.5 years until they have completed ten years here before applying for settlement.
During this time, they cannot ask for public funds unless they can show that they are destitute. This ‘no recourse of public funds’ condition (NRPF), and the legal regime under which the government has imposed it, was challenged by judicial review in the name of the child W. He is an 8-year-old boy supported by his migrant mother. The charity ‘ project 17’ took up his High Court challenge. The High court ruled that the Home Office should either not invoke this policy or if they have invoked it, should lift it, in the case of a migrant who although not destitute, risks immediately becoming so, without access to public funds. The judgement refers to those who have been given leave to remain (or are applying for such leave), as a parent under Appendix FM of the immigration rules.
The High court has ordered the Home Office to publish a revised policy instruction, and one hopes that the policy changes will be broader and will deal with family situations across the board, and not only limited to those granted leave to remain under the parent category.
Fees remission policy
Furthermore, in the matter of Liggison v SSHD, JR / 2249/ 2019, the upper tribunal held that the Government policy of a home office fee remission as well as the NHS surcharge only for those who are destitute was unlawful as the remission should apply more broadly to all those who are not destitute but cannot genuinely pay these fees. The Home office has been granted leave to appeal to the court of appeal.
It is hoped that the Home Office, by changing their policy on the no recourse to public funds( NRPF) and remission on fees ( hopefully the Home Office will withdraw its appeal to the Court of Appeal regarding the latter), will move away from what many regard as a hostile environment towards migrants in the UK.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.