R (ST and VW) v Secretary of State for the Home Department

The claim concerned the Secretary of State's decision of 22 November 2019 to impose a condition of no recourse to public funds (NRPF) on limited leave to remain granted to the mother (C2) of a British child (C1), and a broader challenge to the NRPF scheme in Appendix FM (in particular paragraph GEN.1.11A) and the related Guidance. The court quashed the Decision because the Secretary of State accepted it was incorrect and quashing was necessary to remove the legal consequences of the challenged decision.

The court held that paragraph GEN.1.11A of Appendix FM, read with the Rules, does not comply with the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children. GEN.1.11A substitutes a narrower test (satisfactory evidence of destitution or particularly compelling welfare reasons) which does not, in express or substantial terms, require the decision-maker to treat the best interests of a child as a primary consideration when deciding whether to impose or lift an NRPF condition.

The Guidance, although containing repeated references to children and to section 55, does not cure that defect as to the NRPF condition because the Rule provision itself (GEN.1.11A) and the parts of the Guidance that address NRPF operate to impose a different, more confined test. The court therefore concluded the NRPF scheme fails to comply with section 55.

The court dismissed the claimants' remaining grounds: challenges under the Equality Act 2010 (including s.149) and article 14 ECHR (alleged indirect discrimination on grounds of colour/national origin) were rejected because the PCP targeted the parent’s immigration status, not the child’s colour, and any indirect discriminatory effect was objectively justified; article 3 investigative and systemic grounds were rejected on the facts and law. The court found the revised Guidance addressed earlier article 3 concerns arising in R (W).

This was a first instance judicial review in which a British child (C1), by his litigation friend, and his mother (C2) challenged (i) the Secretary of State's decision of 22 November 2019 to attach an NRPF condition to C2's limited leave to remain, and (ii) the NRPF scheme in Appendix FM to the Immigration Rules (in particular paragraph GEN.1.11A) and the Family Policy Guidance used to operationalise it. The claim sought quashing of the Decision, a declaration that the NRPF scheme is unlawful, and damages for breaches of Convention rights.

Background and parties: C2, a South African national, had been given limited leave to remain in October 2016 without an NRPF condition and later received a further 30 months' limited leave to remain subject to NRPF. C1 is a British citizen. The claim was brought by ST (C1) and VW (C2). The Secretary of State conceded that the 22 November 2019 Decision was incorrect; the court therefore granted permission and quashed that Decision.

Nature of the claim and issues: The court considered multiple pleaded grounds grouped as (A) PRCBC-type challenges (section 55 public law duty and statutory construction arguments), (B) discrimination and equality arguments (Equality Act 2010 and article 14 ECHR, and the public sector equality duty under s.149), and (C) article 3 and related procedural duties (systemic ECHR article 3 risk and an investigative duty analogous to that in MA and BB). The question whether the Decision was academic was considered and permission was granted to pursue the Decision because of potential legal consequences; however the Secretary of State accepted the Decision was incorrect and did not oppose quashing.

Court's reasoning and conclusions: The court (i) quashed the Decision, which removes its legal consequences; (ii) concluded that paragraph GEN.1.11A of Appendix FM does not comply with section 55 because it does not require the decision-maker, in deciding whether to impose or lift an NRPF condition, to treat the child’s best interests as a primary consideration in the way section 55 requires — the Rule substitutes a narrower test (satisfactory evidence of destitution or particularly compelling reasons) which is not the section 55 approach; (iii) held that the Guidance, while repeatedly referencing section 55 and amplifying the test, does not cure the defect in GEN.1.11A in the context of the NRPF decision and so cannot be relied upon to show the Rules themselves comply with section 55; (iv) rejected the statutory construction PRCBC submission that the NRPF policy unlawfully cut down statutory entitlement to Universal Credit because primary legislation (including the Welfare Reform Act 2012 amendments to section 115 of the Immigration and Asylum Act 1999) and the Immigration Act 1971 separately authorise leave and conditions; (v) dismissed the Equality Act and article 14 claims because the relevant PCP operates on the parent’s immigration status (NRPF condition) and any disparate impact by reference to colour/national origin was either not established in the chosen comparator or was objectively justified by legitimate aims (protecting the public purse and promoting integration) and proportionate measures (exceptions for destitution, opportunity to lift conditions, changes to process and PESs); and (vi) rejected the article 3 investigative procedural ground because there was no evidence of systemic intentional ill-treatment on the scale or of the nature that would trigger the investigative duty analogous to MA and BB, and because the Guidance changes addressed systemic article 3 timing concerns previously identified in the Divisional Court in R (W).

The court therefore granted relief in respect of the impugned Decision and found the NRPF scheme incompatible with the statutory duty in section 55, but dismissed the claimants' other challenges. The court directed parties to file submissions on consequential relief and costs.

This is a first instance judgment. The court granted permission to apply for judicial review of the Decision and quashed the Secretary of State's 22 November 2019 Decision because the Secretary of State accepted it was incorrect and quashing was necessary to remove its legal consequences. The court held that paragraph GEN.1.11A of Appendix FM to the Immigration Rules (the NRPF scheme), read with the related Guidance, does not comply with section 55 of the Borders, Citizenship and Immigration Act 2009 because it does not require that the best interests of a child be treated as a primary consideration when deciding whether to impose or lift an NRPF condition; that part of the claim therefore succeeds. The court dismissed the claimants' remaining grounds (statutory construction PRCBC ground, Equality Act and s.149 grounds, article 14 and article 3 investigative/systemic grounds) and concluded those challenges fail for the reasons given in the judgment.