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Duncan Lewis challenge the legality of the SSHD’s decision to make the Claimant^s leave to remain in the UK subject to a No Recourse to Public Funds condition (12 August 2014)

Date: 12/08/2014
Duncan Lewis, Public Law Solicitors, Duncan Lewis challenge the legality of the SSHD’s decision to make the Claimant^s leave to remain in the UK subject to a No Recourse to Public Funds condition

NS & Ors, R (On the Application Of) v Secretary of State for Home Department [2014] EWHC 1971 (Admin)

The case of NS and others sought to challenge the legality of the Secretary of State's decision to make the first Claimant's leave to remain in the UK subject to a No Recourse to Public Funds (NRPF) condition, and most importantly, also sought to challenge the legality of the presumption of imposing a NRPF condition in the Immigration Rules, as well as seeking to challenge the legality of the accompany policy outside of the Immigration Rules by which the Secretary of State decides whether to disapply such a condition.

In light of the challenge to the legality of the NRPF condition in the Immigration Rules and the accompanying policy outside of the Rules, this is a case which raises issues of general public importance likely to affect the lives of many children and adults.

Although the Administrative Court's judgment rejected all three challenges, there were a number of significant issues which the judgment failed to address.

Most importantly, the Administrative Court failed have regard to the judgment in the recent case of R (ota Refugee Action) v SSHD [2014] EWHC 1033 (Admin). In this case, is was held that the level at which s.95 IAA 1999 support is set is unlawful and therefore as a consequence, it is arguable that the Secretary of State's policy of treating the s.95 threshold as the definition of what constitutes "destitution" is correspondingly unlawful.

In addition, the Administrative Court's finding that the default presumption in the Immigration Rules of NRPF failed to take account of the fact that the Rules failed to differentiate between adults and children, and accordingly, it is arguably flawed to assert that reasons of public policy outweigh the best interests of children.

The Court's ruling additionally failed to have regard to the fact that the default imposition of a NRPF condition results in British children being deprived of rights they would otherwise be entitled to if their British parent is violent towards their non-British parent and leaves the family home, as was the exceedingly unfortunate outcome for the Claimants in this case.

The Court's ruling also failed to take into account that in imposing a default condition of NRPF on the pretext that this saves public funds, the SSHD failed to provide any evidence in support of their assertion that any savings are made by depriving single parent families with British children of access to public funds. In addition, the SSHD failed to provide any evidence of how many British children in this country would be adversely affected by their NRPF policy.

Accordingly, it remains arguable that the SSHD's manifest failure to undertake any form of assessment of the impact on children's welfare their NRPF condition would have is incompatible with both s.55 of the BCIA 2009 and Article 3(1) of the UNCRC. By association, it also remains arguable that any rule which presumes that a child must fall into destitution before being entitled to access to public funds must inevitably incompatible with the SSHD's s.55 duty, and in adversely treating British children also breaches the principle of non-discrimination in Article 2 of the UNCRC.

In addition, the SSHD's policy outside of the rules which deals with when the NRPF will be disapplied, is plainly incompatible with the Alvi/Munir principles, as the SSHD's policy lays down a rigid set of essential requirements which ought to have been laid before Parliament. It is significant that the Alvi/Munir principles are completely absent from the Administrative Court's judgment, in spite of these principles being expressly relied upon during the course of the 2 day hearing.

In view of the evident breach of the Alvi/Munir principles, there has been no Parliamentary scrutiny whatsoever regarding the potential adverse impact on children of the introduction of the NRPF policy. It remains our contention that there should have been an intensive Parliamentary review prior to the introduction of this policy. As things currently stand, the SSHD has failed to provide any evidence that competing policy considerations relating to child welfare were taken into account, contrary to principles in the case of SG.

Notwithstanding the Administrative Court's recent refusal decision, as this claim continues to gives rise to arguable grounds raising serious and compelling issues of wider significance and public importance, an application has been submitted to take this case to the Court of Appeal, which is currently awaiting consideration.

About the Author

Trevor Hatton joined Duncan Lewis’ Immigration Department in November 2012 as a Director/Head of Department and specialises in Immigration Judicial Review Claims. Trevor has been a practising immigration lawyer for a continuous period of more than eleven years, since 1 October 2001, originally graduating from the University of Warwick with a law degree in the year 1996, and subsequently passing the Legal Practice Course with a commendation at London Guildhall University, in 1999


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