May 2021 - No Recourse to Public Funds Policy Unlawful Rules High Court
In a new judgment, the High Court has ruled that the No Recourse to Public Funds (NRPF) policy unlawfully fails to safeguard and promote the welfare of children.
The claimants (a South Africa Citizen and the mother of a child who was a British Citizen) challenged the decision to impose a condition of NRPF on the grant of limited leave to remain (LLR) in the UK and the NRPF scheme.
The main grounds of challenge concerned the fees payable for registering a child as a British citizen – specifically that the Secretary of State did not treat the best interests of the child as a primary consideration contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act).
Further it was argued that the design of the NRPF scheme, and its operation in practice fails to provide effective protection to the best interests of children and decisions taken under it unlawfully deprive British citizen children and their parents of statutory entitlements to benefits which are designed to safeguard fundamental human rights. This last ground was not successful but the first two succeeded.
The claimants also raised challenges relating to unlawful discrimination in breach of the Equality Act 2010.
The Court found that the NRPF scheme as laid out in Paragraph GEN.1.11A does not refer to the best interests of a relevant child nor reflect the approach to the best interests of a child encouraged in the guidance (which refers to [ZH (Tanzania) v Secretary of State for the Home Department). Instead, while it refers to a child, it imposes a different, more stringent and narrower test and consequently it was determined that the scheme does not expressly comply with section 55. Nor does it achieve substantial compliance, because it substitutes for the requirements of section 55 a test which does not have the same effect.
However, the claim for discrimination was dismissed as the Court found that the discrimination related to the immigration status of the claimant not their race or nationality.
While dismissing the other grounds of challenge, Lady Justice Laing decided that the decision to impose a NRPF restriction should be quashed and that the NRPF scheme does not comply with section 55 of the 2009 Act.
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