The Home Office has recently yielded to another in a series of ongoing challenges to the no recourse to public funds policy. This particular challenge involved the removal of the no recourse condition for an individual with section 3C leave as a student dependent. The case in question is PA & Anor, R (on the application of) v Secretary of State for the Home Department  EWHC 2476 (Admin).
Background of the Challenge
The claimant initially arrived in the UK as a dependent of her husband, who was a student in the country. Following the dissolution of her marriage, she gave birth to her daughter on December 15, 2021.
The claimant subsequently applied for limited leave to remain as a parent, which was supported by a fee waiver granted on October 21, 2022. Since her application was submitted in a timely manner, she held section 3C leave during the processing of her application.
On February 13, 2023, the claimant requested a change of conditions, seeking to have the no recourse to public funds restriction removed from her section 3C leave. Since the Home Office had not yet made a decision, six weeks later, the claimant began receiving section 17 support based on the council’s duty to safeguard and promote the welfare of her child.
Four months after her application, the Home Office rejected it, asserting that the no recourse to public funds condition couldn’t be lifted from the claimant’s type of leave. The letter incorrectly stated that the condition could only be lifted from leave granted on the basis of family and private life (it should be noted that, at the time, the policy allowed it to be lifted from Hong Kong BN(O) leave as well).
Judicial Review Proceedings
An application for judicial review was filed on June 19, 2023, challenging both the decision and the application of immigration rules and guidance. The hearing was expedited due to the living conditions of the claimant and her child, commencing on October 4, 2023. On the first day, the Home Secretary introduced a new internal operational policy instruction, ‘OPI 1415: Change of conditions – discretion in applications outside of family life, private life, or Hong Kong BN(O).’ This policy asserted that “no change of conditions applications should be considered void” based on the person’s immigration route.
On the evening of October 5, 2023, following the second day of the hearing, the Home Secretary lifted the no recourse to public funds condition from the claimant’s section 3C leave. The parties then reached an agreement to conclude the judicial review, which included the following declarations approved by the judge:
a. The Defendant retains a discretion under section 3(1)(c)(ii) of the Immigration Act 1971 to lift (or not impose) the NRPF condition in relation to a grant of limited leave to remain, including in the case of migrants granted limited leave to remain other than on the family, private life, and British national (overseas) routes;
b. The Defendant’s failure to adequately identify for caseworkers the statutory discretion in relation to change of conditions applications to lift NRPF for those granted Student leave was unlawful
The judgment commended The Unity Project and Project 17 for their substantial assistance to the claimant and the court.
An Important Policy Shift
On the same day, October 5, 2023, the Home Office released an updated version of their public funds guidance. This new guidance specifies that when considering whether to lift (or not impose) a no recourse to public funds condition on someone in the UK, a broad discretion is involved, taking into account relevant factors. Notably:
- In any application involving a child, the best interests of the child must be a primary, though not the sole, consideration.
- If an applicant or their dependent children cannot reasonably return to their home country and are destitute, at imminent risk of destitution, or there are other compelling welfare reasons, the no recourse to public funds condition must be lifted.
- If an applicant or their dependent children can reasonably return to their home country, it is expected that they should do so, unless particularly compelling circumstances necessitate lifting the no recourse to public funds condition.
It appears that the Home Office may advocate for individuals to return to their country of origin in some cases. However, it is challenging to justify this stance when the Home Office has not yet decided an outstanding application for further leave to remain, as was the situation when PA’s change of conditions application was rejected.
It’s increasingly challenging to craft new headlines for successful challenges to the no recourse to public funds policy. People’s circumstances often change after their arrival in the UK, and the Home Office must be ready to exercise its discretion and act accordingly.
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