The Home Office has recently updated its guidance Family life (as a partner or parent), private life and exceptional circumstances, which specifies when access to public funds must be granted to people applying for leave to remain or a change of conditions. This is sometimes referred to as the ‘No Recourse to Public Funds (NRPF) policy’ and applies to people with leave granted on family or private life grounds, or on the Hong Kong BN(O) visa route. For further details of who the policy applies to, see our information about leave to remain with NRPF.
Earlier this year, in ST & Anor v Secretary of State for the Home Department [2021] EWHC 1085, the High Court found that the NRPF policy was unlawful as it failed to comply with the Government's statutory duty to safeguard and promote the welfare of children. The updated policy guidance sets out how the Home Office must consider the impact on a child of imposing or maintaining the NRPF condition and also clarifies when a person will be considered to be at imminent risk of destitution.
When can access to public funds be granted or the NRPF condition lifted?
The Home Office must not impose the NRPF condition when a person:
- Is destitute (does not have adequate accommodation or any means of obtaining it and/or cannot meet their other essential living needs)
- Is at risk of imminent destitution
- Has an income that is not sufficient to meet a child’s particular and essential additional needs
- Is faced with exceptional financial circumstances
A person will be considered to be at risk of imminent destitution when they have accommodation and can meet their essential living needs, but there are reasons why these are unlikely to continue beyond three months from the date of application.
In order to determine whether a parent has an income that is not sufficient to meet a child’s particular and essential additional needs, the Home Office must consider whether imposing or maintaining the NRPF condition would have a disproportionate impact on a child’s welfare and whether such a decision is in the best interests of a child.
When determining whether a person needs access to public funds, significant weight continues to be given to evidence that a person is receiving support from social services. The guidance states: ‘Where a person has been in receipt of local authority support then they will generally be considered destitute and NRPF should be lifted’.
What are the implications of the updated policy?
Our data shows that 21% of families requesting support from social services in 2020-21 had leave to remain that is subject to the NRPF condition, demonstrating that many families with this immigration status can experience significant financial hardship and homelessness due to being unable to claim benefits when they are unable to support their family through employment alone. However, as it is likely that support will only be requested from social services once informal or charitable support in the community has been exhausted, this figure is likely to represent the 'tip of the iceberg' in terms of wider need.
The change of conditions process may prevent some individuals and families falling into destitution or becoming homeless if they are able to obtain access to public funds before reaching crisis point. However, whether this can be achieved in practice will depend on public awareness of the change of conditions process, the availability of free immigration advice, whether evidential requirements can be adequately met, and how long it takes the Home Office to process applications. Although the change of conditions process can alleviate destitution, it does not always adequately protect individuals and families from experiencing financial hardship, homelessness, or the long-term impacts of living in the UK with no recourse to public funds. Additionally, it does not eliminate the need for councils to provide accommodation and financial support when this is necessary to safeguard the welfare of a child or adult with care needs.
Whilst the NRPF condition continues to be imposed and the Government intends to apply it to more groups, we will continue to raise the impacts on communities and councils with central government. Most recently, we have provided written evidence (submitted jointly with the Local Government Association and Association of Directors of Children’s Services) and oral evidence to the Work and Pensions Committee's inquiry into children in poverty with no recourse to public funds.