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Public-and-human-rights News

Black British child’s legal challenge to Home Office restrictions on welfare benefits to be heard by Divisional Court

17th March 2021

This week the Divisional Court will hear a judicial review challenge brought by a 5-year-old black British child and his mother against the Secretary of State for the Home Department’s policy which 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).

Background

The anonymised Claimants are 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 subject to a condition that she have ‘no recourse to public funds’ (‘NRPF’).

The NRPF condition was imposed on VW despite the fact that 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, the Claimants were pushed back into destitution and could not afford their rent or living expenses. As breaching the NRPF condition is a criminal offence, any benefits that they received the NRPF condition was imposed could result in criminal prosecution and/or adverse immigration consequences.

The Defendant admits that the NRPF condition was imposed incorrectly here. The evidence suggests a wider, structural problem since the Home Office tend to impose the NRPF condition in most cases without properly considering an applicant’s circumstances and the welfare of affected children.

The arguments

The Claimants allege, among other things, that the Home Office’s policy fails to effectively safeguard and promote the welfare of children and indirectly discriminates on grounds of race, due to its disproportionate impact on black (and non-white) British children and black (or non-white) single mothers. Once the NRPF condition is imposed, the Defendant’s process for lifting the is requires an online application, but the process is beset by delays and structurally inadequate for averting urgent destitution. The Defendant denies the claim and asserts that any indirect discrimination against black British children is justified, apparently, in the interests of immigration control.

This claim follows the judgment of the Divisional Court in R (W) v SSHD [2020] 1 WLR 4420 where it 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’). The claim draws on 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 are represented by Ben Amunwa, of The 36 Group, led by Alex Goodman of Landmark Chambers and both are instructed by Deighton Pierce Glynn Solicitors.


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