“The Law of Humanity”: Home Office no recourse to public funds policy ruled unlawful

3 June 2020 by Michael Spencer

R (W, a child) v Secretary of State for the Home Department, Project 17 intervening [2020] EWHC 1299

Does the common law protect the right of foreign residents to relief from destitution?

In this judgment on the Home Secretary’s “no recourse to public funds” (NRPF) policy, the Divisional Court of the Queen’s Bench Division has confirmed that it does, citing authority going back to the time of the poor laws.

The judgment will come as a welcome relief to migrants with human rights visas who may be struggling in the wake of the Covid-19 pandemic.  It also provides insight into the interaction between the common law and the Human Rights Act 1998.

No recourse to public funds

NRPF is a condition that the Home Secretary may impose on most forms of temporary visa, including those granted on private and family life grounds under Article 8 of the European Convention on Human Rights.  This challenge was particularly concerned with how the condition is applied to those granted leave to remain as a parent, although the same principles could apply to other human rights visas.

The legal effect of imposing a NRFP condition is that the visa holder is excluded from eligibility for all mainstream social security benefits, including universal credit, disability, housing and child benefits, as well as associated support such as free school meals (though this has been modified during the Covid-19 pandemic).  The only available support is emergency provision for children from local authorities under the Children Act 1989.

The policy

The Secretary of State’s policy, as expressed in the Immigration Rules and in her Policy Instructions, was to impose a NRPF condition on all temporary visas, unless the grantee could provide evidence to demonstrate that he or she “is destitute.”  Destitution has a specific definition in UK law, meaning an inability to meet essential living needs or to access adequate accommodation within the next 14 days. 

The experience of many migrants and those who assist them was that the Home Office was setting a high evidential hurdle before accepting destitution, so that many risk becoming destitute before the condition can be lifted. 

A British child left destitute

This was exemplified by the experience of the Claimant in this case.  He is an 8-year-old British national.  His claim was brought on his behalf by his mother, who is a Ghanaian national and had been granted leave to remain as his parent subject to a NRPF condition.  Although she was able to work as a carer, the imposition of the condition led to her and the Claimant enduring periods of destitution.  They suffered occasional street homelessness and had to move house repeatedly, with the Claimant having to move school five times before he was eight years old.  Their applications for the NRPF condition to be lifted were refused.

The Claimant argued that the Secretary of State’s NRPF policy was unlawful on six grounds.  The Court focused on the sixth, that the policy was unlawful as resulting in inhuman treatment contrary to Article 3 ECHR.

The Law of Humanity

Bean LJ and Chamberlain J referred to two important precedents, one pre-dating and the other post-dating the enactment of the Human Rights Act 1998.

In R v Secretary of State for Social Security ex p. Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (“JCWI (No. 1”)), the Secretary of State for Social Security, using his general statutory powers, had excluded asylum seekers who do not claim asylum on arrival from access to welfare benefits. This had the effect of forcing some genuine asylum seekers into an “intolerable dilemma”: abandon their refugee claim or remain in a state of “utter destitution.”   The Court of Appeal quashed the regulations, applying the principle of legality, i.e. that Parliament should be presumed not to legislate to undermine fundamental rights.  The Court noted that the rights involved were “so basic” they had been recognised two centuries earlier by Lord Ellenborough CJ in R v Inhabitants of Eastbourne (1803) 4 East 103, who held:

As to there being no obligation for maintaining poor foreigners … the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving.

Lord Sumption singled out JCWI (No. 1) for criticism in his 2011 Mann lectures as a judicial trespass on the political sphere.^[1]  He argued that the Court of Appeal had set too high a store on Parliament’s intention, since the latter promptly legislated to enshrine the regulations into primary legislation anyway.  However, he failed to note that Parliament this time included a safety net, whereby relief from destitution would be granted to all asylum seekers where “necessary for the purpose of avoiding a breach of a person’s Convention rights (within the meaning of the Human Rights Act 1998)” (see section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002) — thus leaving it to the courts to determine the content of those rights.

Article 3 and relief from destitution

The scope of this safety net was then considered by the House of Lords in its landmark decision in Limbuela v Secretary of State for the Home Department [2006] 1 AC 396. A group of in-country asylum seekers argued that prohibiting them from working and leaving them street homeless engaged Article 3, which prohibits inhuman and degrading treatment.  Lord Bingham held that:

A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3.  But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life.

The Home Secretary should not wait until an asylum seeker reaches such a state before intervening to provide relief.  The state would be compelled to act as soon as there was “an imminent prospect that a breach of the article will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity.” 

An unlawful policy

JCWI (No. 1) and Limbuela concerned asylum seekers.  Those granted leave to enter or remain on human rights grounds subject to NRPF and who cannot support themselves face a similar “intolerable dilemma”. Should they leave the UK and give up their undoubted right to remain? Or should they stay and suffer the indignity and effects of utter destitution?

The Secretary of State conceded, in the light of Limbuela and Article 3, that her NRFP policy would be unlawful if it required applicants to become destitute before the NRPF condition would be lifted.  The Court added that the same propositions “would also follow at common law even in the absence of Article 3.”  Clear words in primary legislation would be required to authorise the imposition of a NRPF condition such as deliberately to deny “shelter, food or the most basic necessities of life.” 

The issue for the Court therefore centred on the interpretation of the NRPF policy as expressed in the Immigration Rules and Policy Instruction.  The Court interpreted these as instructing caseworkers to lift the condition only where the grantee is presently destitute, requiring most to fall into destitution before the Home Secretary would consider lifting the condition.  In light of the concession, the policy was therefore unlawful under Article 3 and at common law.

The Court granted both a declaration that the policy should not be imposed where an applicant is “not yet destitute but will imminently suffer inhuman or degrading treatment without recourse to public funds” and also a mandatory order requiring the Secretary of State to publish a new policy within seven days.   

Comment

The case is likely to be a welcome relief for many migrants left unable to work in the wake of Covid-19.  Rather than having to wait to become street homeless and hungry before applying to lift the NRPF condition, the Home Secretary will have to consider whether they are at imminent risk of destitution now.  The updated policy can be found here and is discussed on Free Movement here.

The case also re-asserts the power of the common law to protect fundamental rights, including basic social and economic rights.  Even absent the Human Rights Act 1998, it is now a well-established presumption that Parliament will not legislate to leave anyone with a right to remain to starve without using express words.  With due respect to Lord Sumption, common humanity requires nothing less. 

Michael Spencer is a barrister at 1 Crown Office Row.

^[1] Sir Stephen Sedley responded to Lord Sumption: see (2012) 34 London Review of Books 15.