The Divisional Court has upheld a judicial review challenge brought by a 5-year-old black British child and his mother against a Home Office policy that bars most British children from receiving welfare benefits if their parents are foreign nationals subject to immigration control (such as parents on the 10-year route to settlement under Appendix FM of the Immigration Rules).
In ST & Anor v Secretary of State for the Home Department [2021] EWHC 1085 (Admin), Lady Justice Laing and Mr Justice Lane found that the Immigration Rules failed to discharge the statutory duty to have regard to the need to safeguard and promote the welfare of children (under section 55 of the Borders, Citizenship and Immigration Act 2009). The Rules (in Appendix FM, paragraph GEN.1.11A and related guidance) did not comply with section 55. Instead, they imposed a ‘more stringent and narrower test’ and were unlawful for that reason (see the judgment at §§ 157 to 161 and 179).
A likely consequence of this finding is that the Secretary of State will be required to amend the Immigration Rules to comply with the section 55 duty. Such amendments would need to be laid before Parliament. The case has received coverage in the Guardian.
The Defendant admitted that the decision to impose a ‘no recourse to public funds’ (‘NRPF’) condition on the child’s mother was ‘incorrect’. Nevertheless, the Defendant argued that the issue was ‘academic’ and there was no point in quashing the individual decision. The Court disagreed. It found that the Secretary of State’s decision to impose a NRPF condition was unlawful and should be quashed to protect the child’s mother from any adverse consequences (see the judgment at §§ 20 to 21 and 179).
The Court dismissed the remaining 5 grounds of challenge (including arguments under the Equality Act 2010 and the Human Rights Act 1998).
Background
The anonymised Claimants were ST, a 5-year-old black British child, and his mother (and litigation friend), VW, a national of South Africa. VW is on the 10-year ‘parent’ route to settlement under Appendix FM. When she applied to renew her leave to remain in 2019, the Home Office granted her 30 months’ leave to remain subject to a NRPF condition.
The NRPF condition was imposed on VW even though the Home Office had previously permitted her access to public funds because she was destitute and could not meet her son’s essential living needs. As a result of the Defendant imposing the NRPF condition in 2019, the Claimants were pushed back into destitution and could not afford their rent or living expenses. Breaching the NRPF condition is a criminal offence, so any benefits that they received in breach of the NRPF condition could result in criminal prosecution and/or adverse immigration consequences.
This case follows the judgment of the Divisional Court in R (W) v SSHD [2020] EWHC 1299 (Admin) where the Court found that the Defendant’s NRPF policy was unlawful due to its failure to prevent the risk of imminent breaches of the right not to be subject to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights (‘ECHR’).
ST and VW’s case was supported by detailed evidence and research by The Unity Project, one of the only NGOs in the UK focusing exclusively on the impact of NRPF and assisting affected individuals and families.
Representation
The Claimants were represented by Ben Amunwa of The 36 Group, led by Alex Goodman of Landmark Chambers and both are instructed by Adam Hundt and Ugo Hayter of Deighton Pierce Glynn Solicitors (‘DPG’) supported by Bryony Goodesmith (paralegal) at DPG.
Further information
For more information from the employment-civil team, contact clerks@36civil.co.uk
Involving