Khadija Ba Fakih v The Secretary of State for the Home Department

A policy which mandates a no-recourse-to-public-funds condition unless specified criteria are met is a rule concerning conditions of leave. It must be laid before Parliament under section 3(2) of the Immigration Act 1971. A residual discretion outside the policy does not make an otherwise mandatory policy sufficiently flexible.

In formulating and applying such a policy, the Secretary of State must comply with the public sector equality duty. Where evidence raises a real possibility of disability relevant to destitution, the decision-maker must make appropriate enquiries and give adequate reasons on that issue.

The applicant, a Yemeni national living with and dependent upon her British citizen daughter, was granted 30 months’ leave outside the Immigration Rules on Article 8 grounds. The Secretary of State attached a condition prohibiting recourse to public funds and, after reconsideration, refused to remove it.

The applicant sought judicial review of the decisions of 8 October 2013 and 28 February 2014. She contended that the policy governing the condition was an unlaid immigration rule, that its formulation and application breached the public sector equality duty, and that the destitution assessment was unlawful.

The central issues were whether the policy was a rule requiring parliamentary laying and whether the Secretary of State had lawfully addressed the applicant’s disability, destitution and evidence.

1. The claim succeeded. The decisions imposing and maintaining the no-recourse-to-public-funds condition were quashed.

2. The policy applied to leave granted outside the Immigration Rules was not merely advisory guidance. Properly construed, it required a condition prohibiting recourse to public funds unless the applicant established destitution or particularly compelling child-welfare reasons. The residual discretion to depart from the policy did not supply the flexibility needed to prevent the policy from being a rule.

3. Rules concerning conditions attached to limited leave fall within section 3(2) of the Immigration Act 1971. Applying R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208, R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192, and R (New London College) v SSHD [2013] 1 WLR 2358, the Tribunal held that the policy had to be laid before Parliament. Its non-statutory form and the fact that Parliament might have approved it did not cure that defect.

4. The Secretary of State had not demonstrated rigorous, evidence-based consideration of the effect on disabled persons granted leave exceptionally outside the Rules. This breached section 149 of the Equality Act 2010 in formulating the policy.

5. On the individual decisions, the evidence raised a real possibility that the applicant had a disability relevant to her essential living needs and ability to obtain support. The decision letters neither addressed that evidence nor explained its relevance to destitution. The Secretary of State should have made further enquiries and provided sufficient reasons. The decisions were therefore independently unlawful.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review allowed; the Secretary of State’s decisions of 8 October 2013 and 28 February 2014 were quashed.
• First-tier Tribunal: The applicant’s earlier appeal against refusal of leave was dismissed on 19 October 2012. Permission to appeal was later refused by the First-tier Tribunal and Upper Tribunal.
• Administrative Court: The applicant then challenged the Upper Tribunal’s refusal of permission to appeal. While that claim was ongoing, the Secretary of State reconsidered the application and granted leave outside the Immigration Rules.