SAG & Ors v Secretary of State for The Home Department

Applications to lift a no recourse to public funds condition require a fact-specific assessment of whether the applicant is destitute or at imminent risk of destitution. Third-party support may be relevant even though the supporter is entitled to withdraw it. The Secretary of State may seek supporting evidence, but must decide the application on the evidence available and cannot adopt a wait-and-see approach until street homelessness occurs.

Under section 55 of the Borders, Citizenship and Immigration Act 2009, the decision maker must identify the particular child’s best interests and assess the effect of maintaining the condition. A low-level systems duty under article 3 ECHR requires a sufficiently resourced and effective system for prioritising urgent applications.

Three conjoined judicial review claims concerned refusals, or delays, relating to no recourse to public funds conditions imposed on foreign nationals with leave to remain. The claimants argued that the Secretary of State relied on irrelevant considerations, irrational presumptions and excessive evidential requirements, failed to comply with section 55 of the Borders, Citizenship and Immigration Act 2009, and operated an inadequate system for urgent applications.

The court also considered late amendments and evidence, the lawfulness of decisions concerning SAG, LG and BPB, whether BPB should receive permission, and whether declaratory or quashing relief should be granted.

1. Late amendments challenging fresh decisions in LG and BPB’s cases were permitted. Late reply evidence was refused because most of it was not reply evidence, no adequate explanation for delay had been given, and it could not materially affect the claims.

2. The assessment under rule GEN.1.11A(a) of the Immigration Rules is fact-specific. Adequate third-party support which will continue may mean that an applicant is neither destitute nor at imminent risk of destitution. Conversely, where support will imminently end, the applicant may be at imminent risk even if the supporter could continue to provide it. The Secretary of State was entitled to seek evidence about the support, accommodation and the supporter’s position, but had to decide on the evidence available and could not require street homelessness before acting.

3. LG’s challenge failed. The decision maker was entitled to conclude that continued accommodation was likely, having regard to the history of support and the absence of a definite move-out date.

4. BPB’s decision was unlawful. The decision maker addressed accommodation but failed to determine the central issue whether AB would or could continue providing support. The decision also breached section 55 because the evidence indicated that BPB required private space and the decision did not rationally explain why maintaining the condition was in his best interests.

5. Section 55 requires a child-specific assessment of best interests. The Secretary of State may seek relevant evidence but must not adopt a dogmatic refusal to consider best interests without a particular document. The duty did not extend to APB, who was outside the United Kingdom.

6. A low-level systems duty under article 3 ECHR required a sufficiently effective system to reduce the risk of inhuman or degrading treatment to a reasonable and proportionate minimum. An average decision time of 70 days, together with vague case-by-case expedition arrangements and no effective triage, failed to meet that duty. A declaration was granted.

7. SAG’s earlier unlawful decision was recorded by recital only. A quashing order was withheld because the condition had been removed, no practical prejudice or continuing risk was shown, and further litigation would serve no useful purpose.

First-instance judicial review proceedings in the High Court (Administrative Court). No prior appellate decision was identified in the judgment.