Following a legal challenge, the Home Office has confirmed in a new policy instruction that it will consider lifting a ‘No Recourse to Public Funds’ (NRPF) condition when a person has any type of leave to remain. Previously, a change of conditions application could only be made by a person with leave to remain on a family or private life, or Hong Kong British National Overseas (BN(O)) route.
The legal challenge
The judicial review claim of R (PA & Anor) v Secretary of State for the Home Department  EWHC 2476 (Admin) was brought by a mother and her one-year-old daughter. The mother entered the UK with leave to remain as the dependant spouse of a student. Her leave to remain had an NRPF condition attached and she was allowed to work. Her relationship with the student broke down and the couple divorced. The mother had given birth to her daughter in the UK and applied for leave to remain on the five-year parent route. Her student dependant leave was extended by section 3C, at which time she made her first application for a change of conditions. The Home Office refused to consider her change of conditions application on the basis that she did not have leave to remain on a family or private life route. When she applied for a change of conditions, Enfield Council were providing the family with accommodation and financial support under section 17 Children Act 1989.
In response to the judicial review, the Home Office conceded that it has discretion under the Immigration Act 1971 to consider lifting (or not imposing) the NRPF condition when limited leave to remain is granted. A new policy instruction was issued, and the Home Office granted the family access to public funds following a second change of conditions application.
The new policy instruction
During the judicial review proceedings, the Home Office issued interim policy guidance, which is available at the end of the judgment and was subsequently incorporated into the Public funds: caseworker guidance.
The Public funds: caseworker guidance states:
"Whilst a person in most circumstances outside of a family life, private life or Hong Kong BN(O) route would not be granted a change of condition, section 3(1)(c)(ii) of the 1971 Immigration Act provides the Secretary of State power to exercise discretion in considering whether to vary the conditions of any leave granted, including the lifting of NRPF from permission granted in all immigration routes.
"In considering whether to lift (or not impose) a NRPF condition on someone present in the UK there is a wide discretion which requires all relevant matters to be taken into account. In particular:
- in any application involving a child the best interests of that child must be considered as a primary, although not the only consideration - Section 55 guidance
- where an applicant, or their dependant children, cannot reasonably be expected to return to their home country NRPF must be lifted if it is established that they are destitute, or at imminent risk of destitution or there are other particularly compelling reasons relating to the welfare of the child or other matters
- where an applicant, or their dependant children, can reasonably be expected to return to their home country the expectation is that they should do so - particularly compelling circumstances will need to be established to require the NRPF condition to be lifted
"If the reason the person states they cannot return to their country of nationality amounts to a protection or human rights claim, the claim itself should not be considered. Instead, the individual should be encouraged to make an appropriate application based on their primary reason for wanting to stay in the UK, such as a protection claim or family life application, so their circumstances can be properly considered."
Implications of the policy change
The new guidance is clear that the Home Office has the discretion to consider lifting a NRPF condition in order to provide a person with access to benefits and local authority housing assistance, regardless of the type of leave to remain that they have. This policy development could benefit a person who who finds themselves in a position of destitution or financial hardship following an unexpected change of circumstances. However, due to the requirements that need to be met and possible risks that some individuals may face in making such an application, the policy change is likely to have a limited impact.
When a person does not have leave to remain on a family or private life, or Hong Kong BN(O) route, the Home Office will consider whether the person can reasonably be expected to return to their country of origin, and the guidance suggests that it may refuse to grant access to public funds on the basis that the person can return. There may also be risks relating to a person's current and future immigration position that they will need to consider before applying. It is therefore highly advisable that a person is signposted to an immigration adviser to find out whether a change of conditions application is an appropriate route for them and for assistance if the proceed with making an application. It is not currently clear how a person without leave on a family or private life, or Hong Kong BN(O) route can submit a change of conditions application.
Over the last few months, councils have been receiving enquiries from people with leave to remain, who are struggling to financially support their families but do not qualify for a change of conditions, due to the type of leave that they have. In some instances, a person or family may be able to avoid homelessness if their NRPF condition is lifted before they reach crisis point. The change of conditions application also provides a route into mainstream benefits and housing for a person or family currently receiving accommodation from a council under section 17 Children Act 1989 or the Care Act 2014. Therefore, it is positive that the change of conditions process is no longer limited to people on a family or private life, or Hong Kong BN(O) route. However, it is unclear how successful an application will be when a person has a type of leave to remain that is not on a route to settlement, and the low availability of good quality and free immigration advice may prevent some people from obtaining necessary legal advice or making a successful application. Additionally, the policy change does not affect people with pre-settled status, who cannot apply for a change of conditions because their leave to remain is not subject to a NRPF condition.
The ability to make a change of conditions application does not affect a council’s duty to assess the needs of a child in the usual way, where a parent is unable to meet their family’s housing and/or basic living costs through employment, savings or any other resources previously available to them. In some instances, accommodation and financial support may need to be provided to a family whilst a change of conditions application is being made or they are seeking legal advice about their immigration options. See our information about support for families with no recourse to public funds and web tool: support for migrant families.
***The last section of this article was updated on 23 November 2023 to be clearer about what issues would need to be discussed with an immigration adviser before applying.***