LBW

Wednesday, 5 May 2021

Good News For Foreign Parents Of British Children

Rules restricting migrants’ access to benefits are back in the spotlight following a new High Court decision, which found that aspects of the “no recourse to public funds” (NRPF) scheme fail to protect the rights of children.

The case of ST (a child, by his Litigation Friend VW) & VW v Secretary of State for the Home Department [2021] EWHC 1085 (Admin) focused specifically on the approach to NRPF in Appendix FM. This is the section of the Immigration Rules applicable to the family members of British citizens and those with long-term residence rights.

Failure to safeguard the rights of children

The claimants argued that the NRPF provisions in Appendix FM and its associated guidance were in breach of section 55 of the Borders, Citizenship and Immigration Act 2009. Section 55 requires the Home Office to ensure its caseworkers “have regard to the need to safeguard and promote the welfare of children” who are in the UK in matters involving immigration, asylum or nationality.

A bald assertion in paragraph Gen 1.1 that Appendix FM had taken into account the need to safeguard and promote children’s welfare “in line with” the section 55 duty was not enough to make it so, said the court. It noted that this same point had already been decided in the case of R (MM (Lebanon)) v Secretary of State for the Home Department[2017] UKSC 10.

Instead, a careful analysis was required of the actual wording of the provision in question and any relevant guidance. The conclusion would depend on


whether the relevant provision of Appendix FM requires, expressly, or in substance, read on its own or with the guidance, that a person who is deciding whether to impose, or to lift, a NRPF condition must comply with section 55 when he makes that decision [paragraph 158].

The judges underlined that paragraph Gen 1.11A makes no reference whatsoever to the best interests of a child. In fact, the wording actually produces the opposite effect, imposing a morestringent test than that set out in section 55. Gen 1.11A refers to “particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income” – in contrast to the section 55 obligation to simply “safeguard and promote” the welfare of children.

The court then considered whether the caseworker guidance fixed the issue, and concluded that it did not. It acknowledged that the guidance demonstrated a clear understanding of the correct approach to section 55. The problem was this was all in the context of whether to grant a visa, not in the context of whether to lift / not impose a NRPF condition. The fatal flaw in the NRPF guidance was it simply replicated the wording of Gen 1.11A, which set out the wrong test to begin with. In short, the guidance brought nothing more to the table in its current format.

Lady Justice Laing and Mr Justice Lane therefore concluded that “the NRPF scheme does not comply with section 55 of the 2009 Act”.
What will change now?

This is the second case in less than a year to weigh into the NRPF scheme. In W, A Child (mentioned above), the High Court found the NRPF guidance did not adequately provide for those who are not yet destitute but who will shortly become so. Following that case, the guidance was amended to cover those at risk of destitution as well as those who already are.

It remains to be seen what steps the Home Office will take in light of this latest ruling. It could introduce more changes to the caseworker guidance to further “clarify” the existing position, or it could go for an all-out rewrite of the source provisions in GEN 1.11A.

The second course of action makes sense from a legal and practical point of view given the court’s dim view of the existing wording and the fact this was the second successful challenge to the scheme. But perhaps more importantly, it must also be the right way forward from a moral and ethical point of view given the economic and social fallout from the pandemic. While morality and ethics are unlikely to play a significant role in the Home Office’s decision-making here, hopefully pragmatism will prevail if nothing else.

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