This week the Divisional Court (Laing LJ and Lane J) heard a claim for judicial review against the Home Secretary’s scheme, known as the no recourse to public funds or NRPF scheme, restricting access to public funds by migrants on the ten-year route to settlement under Appendix FM of the Immigration Rules. The claim was brought by a five-year-old black British boy (ST) and his mother (VW) against the imposition of a NRPF condition on the mother’s leave to remain. The claim challenges both the imposition of the condition in that case as well as the wider operation of the relevant provisions of the Immigration Rules and Home Office guidance.
The claim raises six grounds:
- The NRPF scheme, by its design and practical operation, fails to provide effective protection of the best interests of children and thereby breaches the Home Secretary’s 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 NRPF scheme and the decisions taken under it unlawfully deprive British citizen children and their parents of statutory entitlements to benefits such as Universal Credit that are designed to safeguard fundamental rights to be free from homelessness, hunger, destitution and inhuman treatment.
- The imposition of the NRPF condition in this individual case unlawfully indirectly discriminated against ST in relation to colour contrary to the Equality Act 2010; and the condition and the NRPF scheme as a whole unlawfully discriminates against ST on grounds of race and/or national origin in breach of Article 14 read with Article 8 and/or Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR).
- The Home Secretary has not satisfied the public sector equality duty contrary to section 149 of the Equality Act 2010 in her formulation and operation of the NRPF scheme.
- The NRPF scheme takes insufficient account of and is incompatible with Article 3 ECHR in that it fails to ensure that imposing the NRPF condition will not result in inhuman treatment.
- Following 8 years of the NRPF scheme operating without respect to Article 3 rights, the Home Secretary has failed to discharge her positive obligation under Article 3 ECHR to conduct an effective inquiry to identify the full facts into the breaches.
This claim follows the decision of the Divisional Court (Bean LJ and Chamberlain J) in R (W) v SSHD  1 WLR 4420 last year which held that the NRPF scheme was unlawful because it gave rise to a real risk of unlawful decision-making in a significant number of cases in that it failed to make clear to caseworkers their duty to act prospectively to avoid a breach of a person’s rights under Article 3 ECHR.
Alex Goodman acts for ST and VW, leading Ben Amunwa of The 36 Group, instructed by Adam Hundt of Deighton Pierce Glynn. Alex previously acted for W in the Divisional Court last year.