Tag Archives: Immigration Act 1971

The Government’s Deport First, Appeal Later Policy – Deportation of Foreign National Criminals and Appeal Rights After the Immigration Act 2014

Posted on by Standard Reply

INTRODUCTION

The Government has brought in changes in relation to restricting appeal rights and these mostly  affect foreign national criminals subject to deportation. In essence where foreign national criminal who are subject to deportation do not raise a protection claim or human rights  claim they will not obtain a right of  appeal. However where they do in fact raise these claims in order to resist deportation, the Home Office may certify the claim in particular relying upon new certification powers  thereby denying the foreign national criminal an in- country right of appeal altogether and instead requiring them to appeal outside the UK following departure.

LIABILITY TO DEPORTATION

Non- EEA foreign criminals  may be considered for deportation under the Immigration Act 1971   or the UK Borders Act 2007.

To be subject to automatic deportation  provisions the foreign national criminal must meet the relevant criteria under the UK Border Act 2007.  Where the foreign national criminal does not meet the automatic deportation threshold criteria consideration is given to whether deportation should be pursued under the Immigration Act 1971 because it would be conductive to the public good.

Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:

  • the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
  • the period of imprisonment is 12 months or more, and
  • the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
  • the criminal was serving that sentence on or after 1 August 2008, and
  • the criminal had not been served with a notice of decision to deport before 1 August 2008, and
  • none of the exceptions set out in section 33 of the 2007 Act apply.

Section 33 of the UK Borders Act 2007 sets out exceptions to automatic deportation. Where an exception applies then automatics deportation cannot continue however that does not necessarily preclude deportation action under the Immigration Act 1971. An individual is also exempt from automatic deportation under sections 33(1)(b) of the UK Borders Act 2007 if they fall within sections 7 or 8 of the Immigration Act 1971 and they are exempt from deportation. Where the Secretary of State decides none of the exceptions apply and that deportation under section 32 of the UK Borders Act 2007 is required, a decision to deport must be served setting out why the foreign national criminal’s presence  is not conducive to the public good. Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the United Kingdom is not conductive to the public good. This gives the Secretary of State discretion to act in a way that reflects the pubic interest.

A non -EEA foreign national will normally be considered for deportation pursuant to  the Immigration Act 1971 if they do not meet the criteria for deportation under the UK Borders Act 2007 but they have been involved in criminal activity in the UK or overseas and meet one of the criteria below;

  • the non -EEA foreign national is recommended for deportation by a court empowered to do so;
  • the non- EEA foreign national has received a custodial sentence of any length for a serious drug offence or gun crime;
  • the non EEA foreign national has committed a crime and received a custodial sentence of 12 months or more. This can be made up of aggregate or consecutive sentences;
  • the non EEA foreign national is a persistent offender. “Persistent offender” means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences;
  • the non EEA foreign national has been sentenced to less than 12 months’ imprisonment, but the Secretary of State considers that the offending has caused serious harm either in the UK or in another country;

The Home Office can also take into account:

  • Cautions: Police cautions can also be taken into account when considering whether deportation is conducive to the public good;
  • Previous Convictions: All previous convictions can be taken into consideration when making a deportation decision on or after 13 December 2012;
  • Serious Harm offences: The Secretary of State has discretion to consider whether an offence has caused serious harm. Such an offence may result in a sentence of less than 12 months but may still be grounds on which to pursue deportation.

Section 3(5)(b) of the Immigration Act 1971 provides for deportation of family members if another person to whose family he belongs is or has been ordered to be deported. When considering whether section 3(5)(b) is appropriate full account must be taken of paragraphs 365 to 366 of the Immigration Rules. Section 7(1) of the Immigration Act 1971  states that it is not lawful to deport Commonwealth or Irish Citizens who were Commonwealth or Irish Citizens and were ordinarily resident in the UK for the commencement of the Act in January 1973 and ordinarily resident in the UK for at least five years before the decision to make a deportation order. Where the Home Office decide that deportation is appropriate then a decision to make a deportation order is served by the Secretary of State setting out why the foreign national’s presence is non-conducive to the public good. The decision informs the foreign national that they may if they wish make representations within 20 working days as to why they should not be deported. The decision is required to issue a warning under Section 120 of the Nationality, Immigration and Asylum Act 2002 which places a continuing obligation to raise with the home office any reason why they should be permitted to remain in the UK including any time there is a change of circumstances as soon as they occur. The decision is also required to seek representations from the foreign national about whether there are any reasons why any appeal against a final refusal of any claim by the Home Office should not be certified under section 94B of the 2002 Act, the effect of which would be an out of country right of appeal. Article 8 claims from foreign national criminals are considered under paragraphs 398 to 399A of the Immigration Rules also with reference to sections 117A to 117D of the Nationality Immigration and Asylum Act 2002(as amended by section 19 of the Immigration Act 2014).

If there is found to be a breach of the UK’s obligations under the refugee convention or the ECHR then deportation  under either the UK Borders Act 2007 of the Immigration Act 1971 will not be possible.

DEPORTATION APPEALS AFTER 20 OCTOBER 2014

The changes to the immigration appeals system in the Immigration Act 2014 are being brought into force on a phased basis. The first phase started on 20 October 2014 and included foreign criminals being deported. The new appeals regime will also apply to persons being deported as family members of foreign criminals under section 3(5)(b) of the Immigration Act 1971.

Rights of appeal are restructured such that a person only has a right of appeal where the Secretary of State refuses a human rights claim or a protection claim or revokes a person’s protection status. The 2014 Act does not change the rights of appeal under EEA regulations and deprivation of citizenship.

The place from which an appeal can be brought or continued is dependant on where the person was when  the claim was made and the nature of the claim. The definition  of “foreign criminals” does not include  all deportation cases. Some persons who are not foreign nationals may be subject to deportation. During the first  phase of commencement of the new Act these persons will retain rights of appeal under the pre- Immigration Act 2014 regime. Where a foreign national criminal makes a human  rights or protection claim if the claim is refused the right of appeal is under  the new Act. If no representations are made after the above mentioned 20working day deadline for representations has passed, the Secretary of State is most likely to make a decision on issuing a deportation order on the facts that are before them. As a human right claim will not have been made by the individual the deportation order will not be appealable and the individual may expect to be removed. Any representations received after the deportation order has been made must still be considered by the Home office. If it is decided on the basis of the post – deportation order representations  that deportation should not be pursued the deportation order will be revoked. However under the new Act there is no longer a right of appeal against deportation or the refusal to revoke a deportation order. Therefore from  20 October 2014 foreign criminals will no longer be able to appeal against a deportation decision. Any foreign criminal who applies to have their deportation order revoked will fall under the new appeals regime if they are served with a refusal to revoke( a revocation decision) on or after 20 October 2014. This will be the case irrespective of whether the decision is served in the UK or overseas.

A person is however likely to have a right of appeal where the Secretary of State refuses to revoke a deportation order only where they make a protection or human rights claim which is refused.

CERTIFICATION

If the representations  raise protection or human rights grounds and it is decided to refuse the claim(s), the Secretary of State is required to  consider whether the claims should be certified under existing powers (section 96 and section 94 of the 2002 Nationality and Immigration Act) or in the case of non- protection claims under section 94B of the 2002 Act( as inserted by the 2014 Act) which allows the certification of human rights claims made by those liable to deportation in certain circumstances. Where it is not possible to certify a protection or human rights claim under the above mentioned provisions then the foreign national will have an in- country right if appeal.

CONCLUSION

The current government ‘s policy in relation to foreign national criminals is ” deport first, appeal later”. In practice therefore there  are instances of foreign national criminals who having held indefinite leave to remain for  up to 20years with  families here having their human rights claims being refused and certified under Section 94B of the 2002 Act. They are expected to appeal outside the UK following their departure. The Home Office themselves acknowledge that meeting the threshold for the irreversible harm test in this regards is high and that cases that will succeed are rare. Therefore although there is a reduction in rights of appeal as a result of the amending provisions of the 2014 Act and the introduction  of new and additional certifying powers, in practice the mere fact of potentially being able to appeal a  human rights claim if refused is just but a mere hope.

Where certification is applied, this means currently in light of the relatively new appeal provisions,  judicial review claims will be lodged  as the Section 94B power of certification is discretionary and it may also be possible to seek to challenge the certification decision also having regard to what appears a restrictive  accompanying policy being applied in conjunction with Section 94B of the 2002 Act. Therefore rather than expediting removals of foreign national prisoners by denying them a right of appeal in- country, for some time at least there will be a priority by claimants to take judicial review action. Having regard to the lengthy period of time the Upper Tier Tribunal is taking to consider such types of review claims, it is not only likely that it will take longer to deport affected persons but also that whilst judicial review claims are pending they may even be granted bail by the Tribunal.

No Recourse to Public Funds Condition, NRPF: Caught between destitution and breach of the Immigration Rules

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Those granted Discretionary Leave to Remain outside of the Immigration Rules prior to 9 July 2012 are not prohibited from accessing public funds. From 9 July 2012 the Home Office introduced new Immigration Rules, also by reference to Paragraph 276ADE of the Immigration Rules relating to private life and family life issues in reference to Appendix FM. The stated justification of prohibition on public funds is among other matters to relieve the burden on the taxpayer and safeguarding the economic well being of the United Kingdom. Therefore those in particular granted leave to remain outside the Immigration Rules on Article 8 ECHR grounds on the 10year route to settlement are generally not allowed to have recourse to public funds. Their Biometrics Residence Permit would be endorsed as “No Public Funds”.

There are exceptions to the condition such that no recourse to public funds(NRPF) will not be attached if it is established that such a person is destitute or that there are particularly compelling reasons not to impose such a condition relating to the welfare of a child of a parent in receipt of a very low income.

THE RELEVANT LEGAL PROVISIONS

Part 1 of the Immigration Act 1971 (“1971 Act”) is concerned with the regulation of entry into and stay in the United Kingdom. Section 1(2) provides that those not having a right of abode in the United Kingdom may live, work and settle here by permission and:

“…subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act…”

By section 3(1)(c) of the 1971 Act:

“Except as otherwise provided by or under this Act where a person is not a

British citizen…

c) If he is given limited leave to enter or remain in the United Kingdom, it

may be given subject to all or any of the following conditions, namely…

ii) A condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds….”

Section 3(2) of the 1971 Act provides that:

“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…;

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)”.

Paragraph 6 of the Immigration Rules provides:

“public funds” means

(a) housing under Part VI or VII of the Housing Act 1996 and under Part II of the Housing Act 1985, Part I or II of the Housing (Scotland) Act 1987, Part II of the Housing (Northern Ireland) Order 1981 or Part II of the Housing (Northern Ireland) Order 1988;

(b) attendance allowance, severe disablement allowance, carer’s allowance and disability living allowance under Part III of the Social Security Contribution and Benefits Act 1992;, income support, council tax benefit and housing benefit under Part VII of that Act; a social fund payment under Part VIII of that Act; child benefit under Part IX of that Act; income based jobseeker’s allowance under the Jobseekers Act 1995, income related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance) state pension credit under the State Pension Credit Act 2002; or child tax credit and working tax credit under Part 1 of the Tax Credits Act 2002;

(c) attendance allowance, severe disablement allowance, carer’s allowance and disability living allowance under Part III of the Social Security Contribution and Benefits (Northern Ireland) Act 1992;, income support, council tax benefit and, housing benefit under Part VII of that Act; a social fund payment under Part VIII of that Act; child benefit under Part IX of that Act; income based jobseeker’s allowance under the Jobseekers (Northern Ireland) Order 1995 or income related allowance under Part 1 of the Welfare Reform Act (Northern Ireland) 2007;

(d) Universal Credit under Part 1 of the Welfare Reform Act 2012 or Personal Independence Payment under Part 4 of that Act;

(e) Universal Credit, Personal Independence Payment or any domestic rate relief under the Northern Ireland Welfare Reform Act 2013;

(f) a council tax reduction under a council tax reduction scheme made under section 13A of the Local Government Finance Act 1992 in relation to England or Wales or a council tax reduction pursuant to the Council Tax Reduction (Scotland) Regulations 2012 or the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012”.

As there will be a reference to this Guidance by reference to the case law below, mention is made to the guidance relating to the imposition of a NRPF condition on grants of limited leave which is, in its October 2013 version, to be found in Part 8 of the chapter on Appendix FM of the Immigration Directorate Instructions (“the Secretary of State’s policy”) which reads:

“Those seeking to establish their family life in the United Kingdom must do so on a basis that prevents burdens on the taxpayer. The changes to the Immigration Rules implemented on 9 July 2012 are predicated in part on safeguarding the economic well-being of the UK, which is a legitimate aim under Article 8 of the ECHR (the right to respect for private and family life) for which necessary and proportionate interference in the Article 8 rights can be justified.

Under Appendix FM, limited leave:

Under the 5 year partner and parent routes;

As a bereaved partner;

As a fiancé(e) or proposed civil partner.

will be granted subject to a condition of no recourse to public funds.

In

All other cases in which limited leave is granted as a partner or a parent under Appendix FM;

All cases in which leave on the grounds of private life is granted under paragraph 276BE or paragraph 276DG; and

All cases in which limited leave is granted outside the rules on the grounds of family or private life

leave will be granted subject to a condition of no recourse to public funds, unless there are exceptional circumstances set out in the application which require recourse to public funds to be granted. Exceptional circumstances which require recourse to public funds will exist where the applicant is destitute, or where there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of very low income.

Whether to grant recourse to public funds as a condition of leave under the Immigration Rules is a decision for the Home Office caseworker to make on the basis of this guidance.

Consistent with the provision of support for asylum seekers and their dependents under section 95 of the Immigration and Asylum Act 1999, a person is destitute if:

a. They do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or

b. They have adequate accommodation or the means of obtaining it, but cannot meet their essential living needs.…

The onus is on the applicant to evidence their destitution, or that there are particularly compelling child welfare considerations, on the basis of the information set out in their application and any supplementary information or evidence about their circumstances which they provide in support of their application.

In considering the applicant’s financial circumstances, the case worker should have in mind that:…

Where the applicant is granted limited leave to remain on the grounds of private life, they will generally have lived in the UK for a significant period. Where the applicant has been granted limited leave as a parent, they will also have lived in the UK for a period before applying for leave under these Rules. To show they are destitute the applicant will have to demonstrate good reasons why their previous means of support are no longer available to them.

The applicant will need to provide evidence, including of their financial position, demonstrating that, on an on-going basis, they do not have access to adequate accommodation or any means of obtaining it, they cannot meet their other essential living needs, or there are particularly compelling child welfare considerations.

Where the caseworker accepts that, even though they have the right to work if they did not before, the applicant is destitute (including accepting any previous means of support are no longer available), or that there are particularly compelling circumstances relating to the welfare of the child of a parent in receipt of a very low income, the case worker should grant recourse to public funds.

When an applicant who was granted recourse to public funds at the initial grant of leave applies for further leave to remain, they will be re-assessed and only granted further leave with recourse to public funds if they continue to be destitute, or where their continue to be particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.”

On 21 January 2014 the Secretary of State published guidance and a form for applicants seeking the removal of a NRPF condition- Request for a Change of Conditions of leave granted on the basis of Family or Private life- (“the January 2014 Guidance”).

The January 2014 Guidance provides:

“Eligibility for requesting an amendment to the conditions of leave

You should only complete this notification if:

  1. You were granted leave to remain in the UK on the basis of your family or private life under Appendix FM or paragraph 276ADE of the Immigration Rules, or leave outside the rules on the basis of exceptional circumstances relating to family or private life; and
  2. You still have existing leave in this category; and
  3. You wish to request the removal of the condition of your leave which specifies that such leave is subject to no recourse to public funds.

You may make this request in the following circumstances:

  1. Since being granted leave to remain your financial circumstances have changed and you have become destitute, or there are now particularly compelling reasons relating to the welfare of your child; or
  2. You were destitute, or there were particularly compelling reasons relating to the welfare of your child, at the time your application was being considered but you failed to provide evidence of this and you now wish to send in this evidence.

The policy on access to public funds

The policy for those granted leave to remain on the basis of their family or private life is that leave will be granted subject to a condition of no recourse to public funds, unless there are exceptional circumstances set out in the application which require recourse to public funds to be granted. Exceptional circumstances which will normally require recourse to public funds to be granted will exist where:

  1. the applicant is destitute; or
  2. there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

A person is destitute if:

  1. They do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
  2. They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

If you do not meet the terms of the policy (because you are not destitute and there are no particularly compelling reasons relating to the welfare of your child if you are a parent in receipt of a very low income), we will not normally amend the conditions of your leave to allow you recourse to public funds. You already have permission to work in the UK.

Where we accept that you have met the terms of the policy, we will amend your conditions of leave and grant you recourse to public funds. There will be no other change to your existing leave. This change of conditions will not give you an extension of the period of leave granted. If your leave is expiring, you will need to put in a new application for further leave.

If it is accepted that you meet the terms of the policy and the conditions of your leave are changed to remove the restriction of no recourse to public funds, please note that this will apply only for the length of your remaining leave. Any decision on whether you qualify for further leave, and the conditions to be attached to it, will be considered on the basis of your circumstances at the time you make that application.

This is not an application for any specific benefit and a grant of leave with recourse to public funds does not guarantee eligibility for any specific benefit. If you are granted recourse to public funds, you will still need to apply to the relevant government department (such as the Department for Work and Pensions (DWP) or HM Revenue and Customs (HMRC)) and will need to meet their entitlement conditions for access to public funds. The Home Office is not able to intervene in any disputes on this matter, and any representations in relation to your eligibility to receive specific benefits would need to be made to the relevant government department”.

The Immigration Rules also provide:

“Requirements to be met by an applicant for leave to remain on the grounds of private life.”

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the

UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

276ADE (2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.”

Leave to remain on the grounds of private life in the UK

276BE(1). Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.

276BE(2). Where an applicant does not meet the requirements in paragraph 276ADE(1) but the Secretary of State grants leave to remain outside the rules on Article 8 grounds, the applicant will normally be granted leave for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition”.

RECENT CASELAW

The Upper Tribunal has recently considered a judicial review challenge whereby the Secretary of State having granted the applicant limited leave to remain outside the Immigration Rules on 8 October 2013 for 30months imposed a condition on the leave prohibiting the applicant from having recourse to public funds (NRPF condition). Upon reconsideration of a decision to impose such a condition, the Secretary of State maintained that decision. The judicial review therefore challenged the lawfulness of the imposition of the NRPF condition on the applicant’s leave.

The relevant Guidance/Policy relating to the imposition of NRPF condition on grants of limited leave to remain was that of the October 2013 version.

Fakih, R (on the application of) v Secretary of State for the Home Department (IJR) [2014] UKUT 513 (IAC)

This was a case about the conditions to be attached to limited leave to remain, where leave had been granted outside of the Immigration Rules and consequently paragraph 276BE of the Rules played no part in the consideration of whether such grant should be made subject to a NRPF condition. It was also considered that neither did paragraph 276BE(2) apply as this provision had not been introduced into the Rules until a date after the decisions under challenge in the application. The Upper Tribunal had to consider in the context of a judicial review whether there was a legal obligation on the Secretary of State to lay her Policy before Parliament and if so whether she lawfully did so. The argument was not that the Secretary of State’s Policy ought to form part of the Immigration Rules but rather that it is in the nature of a rule and therefore should be laid before Parliament.

It was considered that Section 3(2) of the 1971 Act does not distinguish between the requirement to lay before Parliament those rules relating to the imposition of conditions attached to leave granted pursuant to the Immigration Rules and those rules relating to the imposition of conditions attached to leave granted outside the Immigration Rules. The source of the Secretary of State’s power to grant leave is in both scenarios the 1971 Act. The application of the principles identified in Alvi and Munir were considered in relation to the Secretary of State’s policy.

It was noted that the January 2014 policy does not refer to the need to demonstrate exceptional circumstances in order for a previously imposed NRPF condition to be removed but only that an applicant has become destitute or was destitute at the time the condition was imposed but failed to provide sufficient evidence to demonstrate this. The Court saw no justification for a more restrictive consideration to be applied to a decision as to whether to remove a previously imposed NRPF conditions (ie destitution or compelling reasons relating to the welfare of a child) than would be applied to a decision as to whether to impose such a condition in the first place, which is not restricted to the issues of destitution and the welfare of the child. The Court viewed the terms of the January 2014 policy to provide support for a restrictive reading of the, “exceptional circumstances” criteria in the Home Office Policy.

It was the Court’s judgment that the Policy is operated restrictively in practice. It was found that a consideration under the Policy of whether “exceptional circumstances exist” does not admit of any other consideration other than whether an applicant is destitute or whether there are particularly compelling reasons for allowing recourse to public funds relating to the welfare of a child of a parent in receipt of a very low income. The Court found that the Policy lacked any flexibility and constrained a decision- maker to imposing a NRPF condition if an applicant has not met identifiable and specific criteria. It is therefore in the nature of a rule as to the practice to be followed in the administration of the 1971 Act for regulating the stay in the UK of persons required to have leave to enter, in that it is a rule relating to the conditions to be attached to such leave. For that reason the Court concluded that it should have been laid before Parliament pursuant to Section 3(2) of the 1971 Act.

The fact that the Secretary of State’s Policy, insofar as it relates to a consideration of whether to impose an NRPF condition on persons granted leave as a consequence of the Secretary of State having exercised her residual discretion outside of the Immigration Rules, was not laid before Parliament when it ought to have been, and that the Secretary of State relied upon it when imposing a NRPF condition of the applicant’s leave, in the Court’s conclusion rendered both the decision of 8 October 2013 to impose a NRPF condition on the applicant’s leave and her decision of 28 January 2014 not to remove this condition from such leave, unlawful.

The Court decided that although the Secretary of State’s Policy is no longer relied upon in determining whether to impose a NRPF condition on leave granted outside of the Rules, there was no point in quashing a policy that is no longer of application but it was sufficient to conclude that the Secretary of State’s policy of October 2013 insofar as it applies to applicants granted leave outside the rules was unlawful.

CONCLUSION

Those granted leave to remain under the spousal category are subject anyway to the requirement that they can be maintained and accommodated without recourse to public funds and as such the majority of those caught by the NRPF condition will be those who relied on private and family life arguments under the Immigration Rules or those granted limited leave to remain on exceptionality grounds by reference to Article 8 of the ECHR, outside the Immigration Rules.

Where a person is subject to the 10year route to settlement and subject to NRPF condition, it may be that very soon following the initial grant of leave they are caught in a position whereby they are left unable to work possibly due to being a single mother with a vulnerable child needing day to day care yet also being unable to have recourse to public funds. There is a need to apply in appropriate cases for a lifting of the NRPF condition where there is a risk of destitution, however more importantly where a person does manage to obtain public funds where the condition has not been lifted, there is a real risk that a future leave application may be refused under Paragraph 322(3) of the Immigration Rules unless caught by an exception. The Department of Work and Pensions can confirm if a person has claimed benefits.

With the cuts to legal aid, people needing a lifting of the NRPF are restricted in obtaining legal advice and asstiance in this regards and having regard to the Home Office justification in increasingly imposing NRPF conditions from July 2012, it is likely that such requests if not effectively prepared with relevant information and adequately supporting documents may end up being refused by the Home Office.

Those with no recourse to public funds may be able to obtain support from their local authorities under the National Assistance Act and where they have children, the Children Act 1989.

Where there is a real concern that also impacts upon immigration status in this regards, despite the legal aid cuts there are some immigration practitioners willing to assist on a pro bono basis in appropriate cases in effective presentation of a request to lift the NRPF condition.