R (W) v Secretary of State for the Home Department

The Divisional Court held that the NRPF regime, comprising paragraph GEN 1.11A of Appendix FM to the Immigration Rules and the Home Office Instruction, fails to recognise and give effect to the Secretary of State’s duty not to impose, or to lift, a no recourse to public funds condition where an applicant would, without access to public funds, imminently suffer inhuman or degrading treatment contrary to Article 3 ECHR and the duty in section 6 of the Human Rights Act 1998. The court applied the principles in Limbuela and the principle of legality, and considered the Immigration Act 1971 (s.3) and the cross-reference to the definition of destitution in section 95 of the Immigration and Asylum Act 1999.

Although GEN 1.11A and the Instruction permit departure from the NRPF default in certain circumstances (for example where an applicant "is" destitute or there are particularly compelling child-welfare reasons), read together they convey to caseworkers that decision-making in cases of imminent risk of destitution is discretionary rather than imposing a duty to act. That misunderstanding gives rise to a real risk of unlawful decisions in a significant number of cases, rendering the regime unlawful to that extent. The court therefore granted declaratory and mandatory relief to ensure caseworkers are instructed to comply with the Limbuela duty in imminent destitution cases. The court made no order on the claimant's other grounds (grounds 2–5).

This is a judicial review by a British child (by his litigation friend) challenging the imposition of a condition of no recourse to public funds (NRPF) on the leave to remain of his non-British parent (J) and the legality of the NRPF regime. The claim attacked both the decision in J’s case and the legal regime made up of s.3 of the Immigration Act 1971, the Immigration Rules (Appendix FM) and an Instruction to caseworkers (the "Instruction"). The claimant advanced multiple grounds including that the NRPF condition was irrational and breached the child’s best interests (s.55 Borders, Citizenship and Immigration Act 1999 as cited), that the regime breached the Equality Act 2010, Article 14 read with Article 8 ECHR, was overbroad and imprecise, was repugnant to statute, and failed to prevent inhuman treatment contrary to Article 3 ECHR (ground 6).

The matter reached the Divisional Court after initial permission and a prior hearing before a Deputy High Court Judge who quashed the condition in J’s case on ground 1 and adjourned other grounds pending a Home Office review. The substantive hearing before the Divisional Court was listed for 6–7 May 2020 and, by agreement of the parties, the court first considered ground 6 (Article 3 / Limbuela issue). The Secretary of State conceded that a regime requiring applicants to be actually destitute before relief could be granted would be unlawful under Limbuela. The court therefore focused on whether the Immigration Rules and Instruction adequately required caseworkers to act prospectively to avoid imminent breaches of Article 3.

The court analysed the statutory and policy framework: s.3 Immigration Act 1971 (power to impose conditions), GEN 1.11A in Appendix FM, cross-reference to the definition of "destitute" in s.95 Immigration and Asylum Act 1999, and the Instruction versions. It applied authorities on interpretation and the limits of subordinate guidance (Mahad; Alvi; Munir) and on when guidance is unlawful because it creates a real risk of unlawful outcomes (Bibi; BF (Eritrea); JCWI 2). The court concluded that, while GEN 1.11A and the Instruction permit departure from the NRPF default in limited circumstances, they do not clearly identify the Secretary of State’s duty not to impose, or to lift, NRPF where an applicant would imminently face inhuman or degrading treatment. The Instruction’s language suggests discretionary caseworker decision-making even in imminent risk cases and the rules do not require a prospective protective approach as mandated by Limbuela.

Remedy: the court granted declaratory relief reflecting that the regime does not adequately reflect the Limbuela duty and made a mandatory order requiring the Secretary of State to publish an instruction within seven days that caseworkers are under a duty not to impose or to lift NRPF where, on the evidence available, an applicant is at imminent risk of destitution without recourse to public funds. The court approved a £3,000 settlement paid by the defendant and ordered that the defendant pay the claimant’s costs and make an interim costs payment of £50,000. The court made no order on grounds 2–5.

The claim succeeded on ground 6. The court held that the NRPF regime (paragraph GEN 1.11A of Appendix FM and the Instruction), read together, do not adequately identify or give effect to the Secretary of State’s duty not to impose, or to lift, an NRPF condition where an applicant would, without recourse to public funds, imminently face inhuman or degrading treatment contrary to Article 3 ECHR and section 6 of the Human Rights Act 1998. The regime presents the relevant decisions as discretionary and thus risks unlawful outcomes in a significant number of cases. The court granted declaratory relief and made a mandatory order requiring publication of an instruction to caseworkers to give immediate effect to the Limbuela duty in imminent risk cases. No order was made on grounds 2–5.

Permission for judicial review was granted by Judge Evans-Gordon. The substantive hearing was initially listed before Clare Montgomery QC (Deputy High Court Judge) on 4 December 2019; she allowed the claim on ground 1 and quashed the NRPF condition in J’s case and adjourned further grounds pending a Home Office review. The adjourned hearing was relisted and the Divisional Court (Bean LJ and Chamberlain J) heard the claim on 6–7 May 2020 and determined ground 6 in favour of the claimant.