No recourse to public funds in the time of Coronavirus

Anyone working in the field of social welfare law will be familiar with the term “no recourse to public funds”. A significant proportion of migrants in the UK who have leave to remain, will have such subject to a condition that they have no recourse to public funds (“NRPF”).

Persons who are subject to immigration control (meaning they need a visa to enter or remain in the UK) are generally restricted from accessing public funds, although they are often permitted to work in the UK. Common examples of migrants who are subject to the NRPF condition are as follows:

• Unaccompanied Asylum Seeing Children (UASC) Care Leavers. These are UASC who have reached 18 but are yet to receive a determination of immigration status in their favour.
• ‘Zambrano’ carers. These are primary carers of British citizen children, where the primary carer is not an EU or European Economic Area (“EEA”) national.
• People in the UK on a spousal visa, student visa, or who have limited leave granted under family or private life rules.

It should be noted that the entire NRPF regime is currently the subject of a legal challenge in the High Court. A final hearing is listed for 6-7 May 2020.

What are Public Funds?

The definition of what are public funds is set out under s115 of the Immigration and Asylum Act 1999 and paragraph 6 of the Immigration Rules in an exhaustive list. Public funds include the following:

• Disability benefits, including Personal Independent Payments, Disability Living Allowance, and Attendance Allowance.
• Child Benefit
• Housing Benefit
• Social Fund payments
• Tax Credits
• Income-based Jobseeker’s Allowance
• Income-based Employment and Support Allowance
• Income Support
• Council Tax Reduction
• State Pension Credit
• Universal Credit
• Access to homeless assistance under Part VII of the Housing Act 1996
• Access to social housing (either with a local authority or a housing association) under Part VI of the Housing Act 1996

For a comprehensive list see paragraph 6 of the Immigration Rules.

What are not Public Funds?

The simple answer is that any publicly funded service that is not on the list referred to in paragraph 6 of the Immigration Rules can be accessed by a person with NRPF without breaching their immigration conditions. Common examples include:

• Support under s17 of the Children Act 1989. This places a duty on local authorities to provide support in the form of accommodation and subsistence payments when necessary to safeguard the welfare of a child in need. This is not restricted simply because a person is subject to a NRPF condition.
• State School education. Children with NRPF can receive a state education whilst they are of compulsory school age.
• Free school meals in reception, year 1, and year 2.
• Legal aid
• NHS Treatment
• Social services assistance

Change of conditions

The Immigration Rules provide that where leave to remain has been granted in various different scenarios, and would normally be subject to a NRPF condition, the Home Office has a discretion to not to apply that condition, or to subsequently vary it.

Home Office guidance confirms that the discretion not to impose, or to lift, the NRPF condition will apply where the applicant:

• has provided satisfactory evidence that they are destitute, or there is satisfactory evidence that they would be rendered destitute without recourse to public funds; or
• has provided satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child on account of the child’s parent’s very low income; or
• has established exceptional circumstances in their case relating to their financial circumstances which require the no recourse to public funds condition code not to be imposed or to be lifted”

Impact of Coronavirus Crisis

The Home Office guidance emphasises that it is the responsibility of the person seeking to lift the NRPF condition to prove that they meet the relevant test. However, since the Coronavirus Crisis the Home Office has provided further guidance on applications for a change of conditions, which allows Home Office officials to exercise flexibility in requiring further additional evidence.

The Home Office recognises that in the current crisis repeated requests for further evidence could result in people having to endure potentially long periods of destitution. Decision makers can therefore grant a change of conditions request without seeking further additional evidence or documentation if satisfied that reasonable evidence has been provided in the round.

Examples of types of cases where this might apply include, single parents who cannot work due to childcare, people who are at risk of eviction or have been evicted, a parent who is the primary carer of a child unable to attend school due to COVID-19 restrictions and is eligible for free school meals, or where there is evidence of vulnerability.

Challenging Home Office decisions

If the Home Office refuse an application to lift a NRPF condition it may be possible to challenge that decision by way of an application for Judicial Review at court. In this scenario it is worth seeking legal advice on the options open to you.

This article was written by William Ford, a partner in the Housing and Social Care department and head of strategic litigation.