PA & Anor, R (on the application of) v Secretary of State for the Home Department

The Secretary of State has a statutory discretion under section 3(1)(c)(ii) of the Immigration Act 1971 to lift, or refrain from imposing, a no recourse to public funds condition on limited leave to remain. That discretion applies to migrants granted leave outside the family, private life and British national (overseas) routes, including students and their dependants. A decision is unlawful where the Secretary of State fails to recognise the discretion or fails to consider whether to exercise it. Policies and guidance must adequately identify the discretion for decision-makers.

The first claimant, a Ghanaian national, held limited leave to remain as the dependant of an international student, subject to a no recourse to public funds condition. Her application to change that condition was refused on the basis that the Secretary of State could alter conditions only for persons granted leave on specified family or private life routes.

She brought judicial review proceedings challenging that decision and the relevant rules and guidance. The refusal was withdrawn, permission was granted, and the claim proceeded on an expedited basis. During the hearing, the Secretary of State reconsidered the matter, granted recourse to public funds for the remainder of the claimant’s section 3C leave, and agreed declaratory relief. The central issue was whether a statutory discretion existed in student and dependant cases.

1. Declaratory relief granted. The proceedings were compromised, and the court approved the agreed order and declarations.
2. The May decision was unlawful. Under section 3(1)(c)(ii) of the Immigration Act 1971, the Secretary of State retains a discretion to lift, or not impose, a no recourse to public funds condition attached to limited leave to remain. The discretion is not confined to migrants granted leave on family life, private life or British national (overseas) routes. It includes students and their dependants.
3. The refusal unlawfully failed to recognise that discretion, or failed to consider exercising it. That constituted a misdirection in law or an unlawful fettering of discretion.
4. The agreed declaration also recorded that the Secretary of State’s failure adequately to identify the statutory discretion in relation to change of conditions applications by persons granted student leave was unlawful.
5. The subsequently issued Operational Policy Instruction identified the discretion, the relevant matters for decision, and the need to give primary regard to the rights and interests of children under section 55 of the Borders, Citizenship and Immigration Act 1999. The court did not need to determine the proposed amendments concerning the later decision.
6. The Secretary of State had accepted that the first claimant was destitute and granted recourse to public funds for the remainder of her section 3C leave, pending her immigration appeal. Costs remained to be determined.

First-instance judicial review proceedings. The judgment records that Lang J granted permission on 11 July 2023 and directed an expedited substantive hearing, but no separate appellate decision is identified.