The Home Office v ASY and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May,Mrs Justice May DBE |
| Judgment Date | 30 January 2023 |
| Neutral Citation | [2023] EWHC 196 (KB) |
| Docket Number | Case No: QA-2022-BRS-000001 |
| Court | King's Bench Division |
[2023] EWHC 196 (KB)
Mrs Justice May DBE
Case No: QA-2022-BRS-000001
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM BRISTOL COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Colin Thomann & Tom Tabori (instructed by Government Legal Service) for the Appellants
Alex Goodman & Ben Amunwa (instructed by Deighton Pierce Glynn) for the Respondents
Hearing dates: 17 th & 19 th October 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an appeal against an order of His Honour Judge Ralton sitting in Bristol County Court dated 28 January 2022. By particulars of claim issued on 17 December 2020, the respondents to this appeal (the Claimants”) sought damages under section 8 of the Human Rights Act 1998 (“the 1998 Act”) for breach of their rights arising under Article 3 of the European Convention on Human Rights (“the Convention”) consequent upon the operation by the Secretary for State for the Home Office (“SSHD”) of certain provisions of the Immigration Rules (paragraph GEN.1.11A of Appendix FM) and guidance to caseworkers (entitled “Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year routes”) (together “the old NRPF scheme”).
The old NRPF scheme concerned the imposition and maintenance of a condition disentitling non-British citizens with limited leave to remain (“LLTR”) from securing any assistance from public funds, for instance child support, Universal Credit and the like. The condition is known as “no recourse to public funds” (“NRPF”). In R (W, a Child by his Litigation Friend J) v Secretary of State for the Home Department [2020] [2020] 1 WLR 4420, the Divisional Court determined that the old NRPF scheme was unlawful. The Claimants relied on the decision in W as entitling them to damages for breach of their rights under Article 3 of the Convention. I shall consider W in more detail later in this judgment.
By directions dated 30 June 2021 His Honour Judge Cotter QC (as he then was) made an order for the trial of a preliminary issue in the following terms:
“Whether or not the Claimants have a right to damages for breach of their procedural rights under Article 3 ECHR in light of the Defendant's imposition of NRPF conditions on them pursuant to the application to them of the NRPF scheme found by the Divisional Court in W to breach the procedural right under Article 3 of the ECHR”
By his judgment dated 28 October 2021 and order dated 28 January 2022 His Honour Judge Ralton sitting at Bristol County Court found in favour of the Claimants on the preliminary issue. Permission to appeal his order was refused by the judge but granted following consideration by Foxton J on 6 April 2022. In the meantime, Judge Ralton had proceeded to consider and award substantial amounts in compensation to each of the Claimants. The payment of those awards of damages has been stayed by Foxton J pending the outcome of this appeal.
I am grateful to all counsel for their interesting and comprehensive written and oral submissions, which have assisted me greatly.
The Claimants
(1) Anonymity
The Claimants are non-British single mothers and their British children. An application was made for anonymisation of all the Claimants on the basis that the children could be identified if their mothers were to be named. There have been no objections to such an order. Applying CPR rule 39.2(4) I am satisfied that anonymity is necessary to secure the proper administration of justice and to protect the interests of the minor claimants.
(2) Personal circumstances
Whist emphasising that he was making no factual findings as such, the judge gave the following summary of the Claimants and their circumstances, which I gratefully adopt:
“27. All the Claimants were very low earning single parents with minor dependent children. In each case they were granted LLTR with a NRPF condition.
28. The Claimants' financial circumstances deteriorated; they were unable to meet their basic costs of living and fell into arrears of rent/utility bills and suchlike. They all sought assistance from The Unity Project which is a charity that exists to assist migrants with LLTR in the UK to make CoC applications on the ground that they face destitution without having recourse to public funds.
29. In the case of [ASY] she was dissuaded from making a CoC application because of the [old NRPF scheme] in late 2018. She made a CoC application in June 2019 which was unsuccessful. On 11 th September 2019, with childbirth imminent, she made a fresh application which was granted on the actual destitution ground…It seems that the decision was made on 1 st October 2019 but not implemented until 21 st October 2019.
30. In the case of [BTB], she made a CoC application in July 2019 when she was facing imminent eviction; it was granted on the child welfare ground and not the actual destitution ground…However, the factual basis accepted by the Defendant was inadequate accommodation and inability to meet essential living needs from actual earnings so the facts accepted by the Defendant would also support actual destitution.
31. In the case of [CVD], she made a CoC application in July 2019 when she was in substantial arrears of rent and utility bills; it was granted on 25 th September 2019…the available paperwork and the decision letter suggests that the NRPF condition was lifted on the actual destitution ground.
32. In the case of [DWB] she challenged the NRPF condition but was unsuccessful in 2018. [DWB] made a fresh application in August 2019 which was successful on 25 th September 2019 and was implemented on 1 st October 2019. There is no witness statement from [DWB] and the Defendant's case record seems to suggest that the condition was lifted on the actual destitution ground but it is not clear.
33. Therefore, so far as each of the Claimants are concerned save, perhaps for [BTB], it seems that the Defendant accepted when the CoC application was made that they were actually destitute. The circumstances of the individual Claimants show that they and the dependents for whom they cared were at real risk of losing the rooves (sic) over their heads and being homeless. There was no evidence of financial support being available from any of the fathers of the children. Mr Tabori tells me that some local authority funded financial assistance may have been available under section 17 Children Act 1989 but I am left with the clear impression (as was the Defendant) that without access to public funds the Claimants were at risk of being left so destitute that their Article 3 rights could have been breached. To adopt the words of Baroness Hale, the Claimants…and their children were at sufficient risk of ‘rooflessness’ and ‘cashlessness’ by being deprived of state benefits until the state deemed them to be actually destitute (as opposed to imminently destitute which is the new test after W).
34. The witness statements of the Claimants all speak of their states of anguish, worry and desperation which would be consistent with the financial straits the Claimants were in.”
The old NRPF scheme and the decision in W
The development of the legal and policy framework applicable to the old NRPF scheme is set out and discussed at length by the Divisional Court (Bean LJ and Chamberlain J) in W, at [10]–[27]. The key policy provisions and guidance bearing upon the Claimants in this case are the same as those which applied to the claimant in W. Accordingly I shall not seek to repeat here the detailed analysis undertaken by the Divisional Court, instead providing a brief summary of the main elements.
By section 3(1)(b) and (c) of the Immigration Act 1971 (“IA 1971”) the SSHD has the power to grant non-British citizens limited leave to remain in the UK (“LLTR”). Such persons are entitled to live and work as ordinary citizens. However section 3(1)(c)(ii) IA 1971 entitles the SSHD to impose a condition of NRPF, further to a policy intention that non-British citizens seeking to come and live in the UK should not be a charge on public funds.
The SSHD's policy and practice relating to the imposition, and lifting, of the NRPF condition is to be found in two places. The first is at Paragraph GEN 1.11A of Appendix FM to the Immigration Rules (“the Rules”) which at the material time provided as follows:
“Where entry clearance or leave to remain as a partner, child or parent is granted…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 relation to the welfare of a child of a parent in receipt of a very low income.”
The second source is contained in guidance in the form of instructions provided by the SSHD pursuant to paragraph 1(3) of schedule 2 to the 1971 Act. The version applicable to these Claimants at the material time is entitled “Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-year routes Version 3.0”, published on 23 January 2019 (“the Guidance”). Under the heading “Criteria for the non-imposition or lifting of the no recourse to public funds condition code” appeared the following instructions:
“In all cases where
• limited leave is granted as a partner or parent under Appendix FM …
leave to remain will be granted subject to a condition of no recourse to public funds, unless the applicant provides evidence with their application to show...
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