R (W, a Child by his Litigation Friend J) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Bean,Mr Justice Chamberlain
Judgment Date21 May 2020
Neutral Citation[2020] EWHC 1299 (Admin)
Docket NumberCase No: CO/3036/2019
Date21 May 2020

[2020] EWHC 1299 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Bean

and

Mr Justice Chamberlain

Case No: CO/3036/2019

Between:
R (W, a Child by his Litigation Friend J)
Claimant
and
The Secretary of State for the Home Department
Defendant

and

Project 17
Intervener

Alex Goodman (instructed by Deighton Pierce Glynn) for the Claimant

Steven Kovats QC, Colin Thomann and Tom Tabori (instructed by the Government Legal Department) for the Defendant

Amanda Weston QC, Bijan Hoshi and Ollie Persey (instructed by the Public Law Project) for the Intervener

Hearing dates: 6 and 7 May 2020

Approved Judgment

Mr Justice Chamberlain

Lord Justice Bean and

1

This is the judgment of the court, to which we have both contributed.

2

The Claimant was born in August 2011. He is a British national. His litigation friend is his mother, to whom we will refer as “J”. J is a national of Ghana. She came to the UK in 2009 and was granted leave to remain in the United Kingdom (“LTR”) as his parent on what is known as the “10-year route to settlement” in 2013. This route involves sequential grants of LTR. Under the policy now in force, LTR is granted for 30 months at a time. Normally, such grants are made subject to a condition that the applicant have “no recourse to public funds” or “NRPF”. The effect of that condition is to make the person on whom it is imposed ineligible for almost all benefits paid from public funds, including those intended to maintain the basic welfare of children. J has on various occasions since 2013 been given LTR subject to a condition of NRPF. She works as a carer for mentally disabled people, but the imposition of the condition has led to her and the Claimant enduring periods of destitution. On one occasion they became street homeless, before being housed by a local authority. They have had to move house repeatedly and the Claimant had to move school five times before he was eight years old.

3

Before J's latest application for LTR, she put together evidence to show that she would be destitute if the NRPF condition was imposed. The condition was nonetheless imposed. It remained in place until it was lifted as a result of pre-action correspondence on 9 July 2019. The lifting of the condition was not retrospective and J faced recovery of housing benefit and tax credits paid while it was in place. A judicial review claim was therefore filed on 31 July 2019. It challenged both the imposition of the condition in J's case and also the legal regime under which the condition of NRPF is imposed, which comprises s. 3 of the Immigration Act 1971 (“the 1971 Act”), the relevant paragraphs of the Immigration Rules and of an instruction to caseworkers: Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes (“the Instruction”). As the argument developed, it became clear that the challenge was in substance to the latter two instruments. These comprise what we shall refer to in this judgment as “the NRPF regime”.

4

The grounds of challenge were, in brief, as follows:

(a) Ground 1 was that the imposition of the NRPF condition in J's case was irrational and breached s. 55 of the Borders, Citizenship and Immigration Act 1999, which, as interpreted by the Supreme Court in ZH (Tanzania) v SSHD [2011] 2 AC 166, requires the best interests of the child to be taken into account as a primary consideration.

(b) Ground 2 challenges the effect of the NRPF regime, which is said to be “that an NRPF condition will be imposed in all cases where limited leave is granted on a 10-year route as a partner or parent unless to do so imposes destitution on a person or there are particularly compelling welfare considerations relating to children”. In making the decision to adopt this policy, it is said that the Secretary of State “failed to have due regard to the differential impacts of the policy on British children of foreign parents; on non-white British children and on single mothers and their children” contrary to s. 149 of the Equality Act 2010 (“the 2010 Act”) and the common law duty to take into account all relevant considerations.

(c) Ground 3 is that the NRPF regime discriminates directly or indirectly against those of non-British national origin or ethnicity contrary to Article 14 read with Article 8 ECHR and contrary to s. 29 of the 2010 Act.

(d) Ground 4 is that the NRPF regime is “contrary to the requirements of the rule of law and to Articles 8 and 14 in that they are collectively overbroad and/or insufficiently precise” in that the discretion afforded to decision-makers is not sufficiently constrained and decision-making is therefore arbitrary.

(e) Ground 5 is that the NRPF regime and conditions imposed under it are unlawful because they “deprive British citizens of the benefit of entitlements under statutory welfare measures which are provided by Parliament to prevent children falling into homelessness and extreme poverty and thereby exceed the permissible scope of an Immigration Rule and policy statement”. Mr Kovats characterised this as an argument that the regime is repugnant to statute.

(f) Ground 6 is that the regime fails to ensure that imposing the NPRF condition will not result in inhuman treatment contrary to Article 3 ECHR and so is contrary to s. 6 of the Human Rights Act 1998. Reliance is placed on the decision of the House of Lords in Limbuela v Secretary of State for the Home Department [2006] 1 AC 396.

5

In a witness statement accompanying the claim, the Claimant's solicitor, Adam Hundt, explains that, in the 18 months prior to filing this claim, he has represented 20 families with an NRPF condition attached to the grant of leave to remain. “Almost all” have British national children with a mother en route to settlement. In 19 of the 20 cases the NRPF condition was lifted either after pre-action correspondence (12 cases including this one) or by settling proceedings (7 cases). The remaining claim was at the pre-action stage at the time when proceedings were issued. It has now been stayed behind this one. The two most recent claims ( CO/4615/2018 M&A and CO/741/2019 DAZ & KAZ) settled on terms favourable to the claimants shortly before the substantive hearings in March 2019. It was a term of the settlement in M&A that the Secretary of State would conduct a review of the NRPF policy.

6

In this case, permission was granted by Judge Evans-Gordon. The substantive hearing was listed before Clare Montgomery QC, sitting as a Deputy High Court Judge, on 4 December 2019. She allowed the claim on ground 1, which challenged the condition imposed in J's case, and quashed the NRPF condition in her case. Ms Montgomery adjourned determination of the remaining grounds, which challenged the legality of the regime, because the review of the NRPF policy was due to be published by the Secretary of State by 31 December 2019. That was pushed back to 31 January 2020, then to 31 March 2020 and then to the end of April 2020. The adjourned substantive hearing (of grounds 2–6) was listed for hearing on 24 and 25 March 2020. It did not take place because the judge due to hear it was unavailable.

7

On 3 April 2020, there was a hearing before us to consider the Claimant's application for interim relief, but Mr Alex Goodman, counsel for the Claimant, did not press that application when it became clear that it would be possible to relist the substantive hearing on 6 and 7 May 2020. We subsequently granted an application to intervene by Project 17, a charity focussing on assisting children from migrant backgrounds whose parents are experiencing financial hardship as a consequence of the imposition on a parent of the NRPF condition. Project 17 is so named because the principal means by which it offers this assistance is by helping families to make applications to local authorities for support under s. 17 of the Children Act 1989.

8

The hearing on 6 May 2020 took place remotely, using Skype for Business. For the Claimant, Mr Goodman advanced his ground 6 first. He took as his starting point the Secretary of State's concession in her skeleton argument that, applying Limbuela, the regime would be unlawful if it required applicants to become destitute before applying for the NRPF condition to be lifted. Mr Goodman submitted that, on a proper interpretation of the Immigration Rules and Instruction, they fail to give proper effect to the Secretary of State's obligations, as identified in Limbuela, prospectively to avoid a situation in which applicants' Article 3 rights will be infringed. Thus, if we were minded to allow the claim on this ground, we need not consider the remaining grounds of challenge. Mr Steven Kovats QC, for the Secretary of State, indicated on instructions that he agreed with that course.

9

In those circumstances, we heard on 6 May 2020 from Mr Goodman and from Ms Amanda Weston QC for Project 17 on ground 6 only. We then heard from Mr Kovats QC, again on ground 6 only. On the morning of 7 May 2020, we announced our decision that the Claimant had succeeded on ground 6 and it was accordingly not necessary to hear further argument on the remaining grounds. We indicated that we would make no order until we had given our reasons in writing in the usual way and that we would then invite written, or if necessary oral, submissions on the terms of an order reflecting our judgment. These are our reasons.

The legal and policy framework

10

Section 3 of the 1971 Act provides as follows:

“(1) Except as otherwise provided by or under this Act, where a person is not a British citizen

…(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given...

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