ST & Anor v Secretary of State for the Home Department

A published policy guiding a broad statutory discretion is not unlawful merely because it affects statutory benefit entitlement where primary legislation authorises both the benefit exclusion and an immigration condition restricting public funds. But the policy framework must comply with the statutory duty to safeguard children’s welfare. A general statement in the Immigration Rules is insufficient where the operative no recourse to public funds test substitutes a narrower test for treating best interests as a primary consideration. Indirect discrimination fails where the claimant is not the person to whom the PCP is applied, and any disadvantage was in any event justified. The equality duty was satisfied by conscientious inquiry and review. The amended guidance met the systemic Article 3 standard, and no investigative duty arose.

VW and her British-citizen son ST brought judicial review proceedings against the Secretary of State for the Home Department. They challenged a 22 November 2019 decision imposing a no recourse to public funds condition on VW’s limited leave to remain and the wider NRPF scheme in Appendix FM to the Immigration Rules and associated guidance.

The condition was lifted prospectively, and the Secretary of State conceded that the individual decision was incorrect. The Court considered whether the challenge remained live, whether the scheme unlawfully restricted benefit entitlement, failed to comply with the duty to safeguard children’s welfare, discriminated unlawfully, breached the public sector equality duty, or was incompatible with Articles 3, 8 or 14 of the Convention.

Outcome. The Court granted permission to challenge the individual decision and quashed it. It held that the NRPF scheme did not comply with the duty imposed by section 55 of the Borders, Citizenship and Immigration Act 2009. The remaining grounds were dismissed.

1. Statutory construction. The Welfare Reform Act 2012 expressly amended section 115 of the Immigration and Asylum Act 1999 to address universal credit for persons subject to immigration control. Section 3 of the Immigration Act 1971 independently authorised leave subject to an NRPF condition. A published policy governing a broad statutory discretion was therefore not unlawful merely because it affected benefit entitlement, although it remained open to substantive challenge.
2. Section 55. Applying the reasoning of MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10, the question was whether Appendix FM and the guidance required compliance with section 55 when deciding whether to impose or lift an NRPF condition. Paragraph GEN.1.11A imposed a narrower test based on destitution or particularly compelling child-welfare reasons. It did not substantially comply with the section 55 duty. The guidance could not cure the defect because its NRPF provisions repeated that narrower test, while its general references to section 55 concerned decisions whether to grant leave.
3. Equality Act 2010. The NRPF condition was applied to VW, not ST. An indirect discrimination claim by ST could not therefore proceed. The proposed comparator also ignored the material difference created by VW’s immigration status. Any disadvantage linked to colour was objectively justified by the legitimate aims of financial independence, integration and protection of the public purse, together with the ability to work and seek removal of the condition.
4. Other grounds. The Policy Equality Statements showed reasonable inquiry, consultation and consideration of equality impacts, satisfying section 149. The Article 14 difference was based on immigration status and the NRPF condition, not nationality, and was justified. Following R (W) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin), the amended guidance met the systemic Article 3 standard. The circumstances did not trigger an investigative duty of the kind considered in R (MA and BB) v Secretary of State for the Home Department [2019] EWHC 1523 (Admin).

The Court reserved consequential matters for written submissions.

This was a first-instance judicial review. The judgment records interim relief granted by Freedman J on 23 December 2019 and a consent order granting permission to challenge the NRPF scheme on 16 December 2020. No appeal is described.