Deighton Pierce Glynn reports GEN 1.11A of Appendix FM of Immigration Rules is declared unlawful in High Court order
Deighton Pierce Glynn (DPG) solicitors reported today that the Government's 'no recourse to public funds' (NRPF) policy has again been found to be unlawful by the High Court.
Image credit: WikipediaDPG was representing two clients in cases arguing that access to public funds was needed for a person who could not earn enough as a result of their or their family members' disabilities.
Ben Amunwa, barrister at The 36 Group, noted on Twitter that two judicial review claims were brought. Both involved serious disabilities where the clients struggled to provide evidence of destitution as required to satisfy the exception in paragraph GEN 1.11A of Appendix FM of the Immigration Rules. Amunwa said the Home Office had paid scant attention to disability when barring the clients from receiving benefits.
The Secretary of State conceded in the case before the hearing. DPG says it was accepted that the Immigration Rules and associated guidance are unlawful for a failure to comply with the Equality Act 2010 and a failure to make clear that the NRPF condition can be lifted even if a person is not destitute or imminently destitute should they require recourse to public funds because of a disability or other exceptional circumstance.
In a court order made in February, Mrs Justice Collins stated: "It is declared that paragraph GEN 1.11A of Appendix FM of the Immigration Rules and the accompanying Policy Guidance are unlawful for their failure to instruct caseworkers adequately in relation to exceptional circumstances and/or disability as grounds for potentially requiring recourse to public funds to be granted to applicants who may not be destitute or imminently destitute, so as to ensure that the Defendant properly exercises her statutory discretion under section 3 of the Immigration Act 1971 and acts compatibly with her obligations under sections 6, 29, 149 and Schedules 1 and 2 of the Equality Act 2010."
Explaining the order, DPG noted: "The Immigration Rule (GEN 1.11A) and associated guidance must now be amended. Until that happens, if anyone with limited leave to remain under the family route who requires public funds because of a disability (not necessarily theirs – it could be for example that their ability to work as many hours as they need is curtailed by caring responsibilities) is told by the Home Office that they cannot access public funds, that decision is likely to be unlawful. Similarly, applicants seeking the lifting of the NRPF condition from their limited leave to remain because they require recourse to public funds due to a disability should not be required to demonstrate that they are destitute or imminently destitute."
Sky News has more on the case in a video report here.
DPG notes it is the fifth time in five years that NRPF has been found unlawful.