R (W, A Child By His Litigation Friend J) v The Secretary of State for the Home Department & Anor

A no-recourse-to-public-funds regime must clearly identify the circumstances in which the Secretary of State is legally obliged not to impose, or to lift, the condition. That duty arises where, without access to public funds, a person is suffering or will imminently suffer inhuman or degrading treatment. It is prospective: an applicant need not wait until the Article 3 threshold has been crossed.

A challenge to immigration guidance succeeds where its terms create a real risk of unlawful outcomes in a significant or more than minimal number of cases. An Immigration Rule capable of lawful operation need not itself be invalid, but the linked regime is unlawful where its guidance misleadingly presents a legal duty as a discretionary decision.

The claimant was a British child whose Ghanaian mother held limited leave to remain on the ten-year route to settlement. Her leave had repeatedly been subject to a no-recourse-to-public-funds condition. The condition was lifted following pre-action correspondence, but the claim challenged both its imposition in her case and the wider regime in Appendix FM to the Immigration Rules and the Home Office instruction to caseworkers.

A Deputy High Court Judge had already allowed ground 1 and quashed the condition imposed on the mother. The Divisional Court heard ground 6 first, concerning the compatibility of the regime with Article 3 ECHR. The central issue was whether the regime adequately required caseworkers to prevent imminent inhuman or degrading treatment caused by the absence of public funds.

1. The claim succeeded on ground 6. The regime comprising paragraph GEN 1.11A of Appendix FM and the Instruction was unlawful to the extent that it failed clearly to require the non-imposition or lifting of a no-recourse-to-public-funds condition where an applicant would imminently suffer inhuman or degrading treatment without public funds.

2. Applying Limbuela v Secretary of State for the Home Department [2006] 1 AC 396, Article 3 is engaged only at a high threshold. Destitution under section 95 of the Immigration and Asylum Act 1999 does not necessarily meet that threshold. But the Secretary of State has a duty to act prospectively once there is an imminent prospect that the Article 3 threshold will be reached. The same conclusion followed at common law. Section 3(1)(c)(ii) of the Immigration Act 1971 confers a power, not a duty, to impose the condition, and contains no clear authority to maintain it in those circumstances.

3. The court held that the word “normally” in GEN 1.11A meant that the Rule was capable of lawful operation. The stringent test for invalidating subordinate legislation was therefore not met. However, the Rule and Instruction had to be assessed as a cohesive regime. Their language did not communicate a duty to act in cases of imminent harm. Instead, it conveyed that caseworkers retained a discretion. That was apt to mislead them and created a real risk of unlawful decisions in a significant number of cases.

4. The court granted a declaration in substantially the Secretary of State’s proposed terms. It also ordered the Secretary of State, within seven days, to publish an instruction requiring caseworkers dealing with the relevant Appendix FM applications not to impose, or to lift, the condition where the evidence showed an imminent risk of destitution without recourse to public funds. No order was made on grounds 2 to 5.

• High Court: Before the Divisional Court hearing, a Deputy High Court Judge allowed ground 1 and quashed the no-recourse-to-public-funds condition imposed on the claimant’s mother. The remaining grounds were adjourned.
• Divisional Court: The court allowed ground 6, declared the relevant Appendix FM and guidance regime unlawful to the identified extent, and required a corrective instruction to caseworkers. Grounds 2 to 5 were not determined.