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High Court deems Home Office guidance on no recourse to public funds unlawful

Home Office guidance on maintaining a no recourse to public funds (NRPF) condition on a child has been ruled unlawful by the High Court after the judge found its wording was similar to a document that was previously found unlawful by the Divisional Court.

In R (AB) v SSHD [2022] EWHC 1524, Mr Justice Lane held that Home Office guidance failed to reflect the duty under section 55 of the Borders, Citizenship & Immigration Act 2009 to safeguard and promote the welfare of children.

The judicial review sought to challenge the continued existence of paragraph GEN.1.11A of Appendix FM to the immigration rules and the associated guidance published by the defendant, Family life (as a partner or parent), private life in exceptional circumstances (version 16.0), due to a previous court decision which found the GEN.1.11A wording unlawful.

The paragraph in question in the immigration rules document read:

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"GEN.1.11A. Where entry clearance or leave to remain as a partner, child or parent is granted under paragraph D-ECP.1.2., D-LTRP.1.2.,D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D-LTRPT.1.2., it will normally be granted subject to a condition of no recourse to public funds, unless the applicant has provided the decision-maker with:

(a) satisfactory evidence that the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999; or

(b) satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income."

In R (ST and another) v Secretary of State for the Home Department [2021], the Divisional Court held that GEN.1.11A was unlawful in that it did not refer to the best interests of the relevant child but instead imposed a different, more stringent and narrower test based on "particularly compelling reasons relating to the welfare of a child".

The High Court judge reiterated that the problem with GEN.1.11A lay in paragraph (b), which requires "satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income".

"That is a different and materially narrower consideration than what is required by section 55. The case law makes this plain," the judge said.

The judge then turned to the associated guidance, which was designed to assist caseworkers in making decisions within the overall framework of the immigration rules and related law.

However, the nature of the words in a particular section was similar to the unlawful wording in GEN.1.11A(b) in circumscribing the section 55 duty, the judge said.

Consequently, he held that the Home Office's policy guidance was unlawful to the extent that it failed to reflect the statutory duty to have regard to the best interests of children, pursuant to section 55 of the 2009 Act, and in the light of the declaration in ST concerning the unlawfulness of GEN.1.11A of Appendix FM to the Immigration Rules.

Alex Goodman of Landmark Chambers acted for the Claimant instructed by Adam Hundt of Deighton Peirce Glynn.

Adam Carey

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