Migrants can’t live on fresh air

Cllr Nazir Ahmed FRSA – barrister, writer, analyst and public representative – calls on the Home Office to lift the “No Recourse to Public Funds” restriction.

No Recourse to Public Funds (NRPF) is a standard condition applied to those staying in the UK with a temporary immigration status.  It was introduced mainly to protect public funds.

Indefinite Leave to Remain (ILR – also known as Permanent Residence [PR] or Settled Status) is set as the general threshold which migrants have to achieve to be permitted to access public funds. Migrants who are here without leave are also subject to NRPF. Therefore, most migrants living in the UK do not have access to, or a right to access, public funds as a matter of course.

If you have a residence permit that allows you to live and work in the UK, it is most likely to include the condition that you have no recourse to public funds.  If so, it means that you will not be able to claim most benefits, tax credits or housing assistance that are paid by the state and the local authorities. However, there are some exceptions.

Public funds include a range of benefits that are given to people on a low income, as well as housing support and assistance.  These are: income-based Jobseeker’s Allowance, Income Support, Child Tax Credit, Universal Credit, Working Tax Credit, a Social Fund payment, Child Benefit, Housing Benefit, Council Tax Benefit, Council Tax Reduction, Domestic Rate Relief (Northern Ireland), State Pension Credit, Attendance Allowance, Severe Disablement Allowance, Personal Independence Payment, Carer’s Allowance, Disability Living Allowance, an allocation of Local Authority housing and Local Authority homelessness assistance.

However, public funds do not include benefits that are based on National Insurance (NI) contributions. NI contributions are paid in the same way as income tax and are based on earnings.  Benefits to which a person is entitled as a result of NI contributions Include Contribution-Based Jobseeker’s Allowance, Incapacity Benefit, Retirement Pension, Widow’s Benefit and Bereavement Benefit, Guardian’s Allowance and Statutory Maternity Pay.

Historically, all those holding Limited Leave to Remain have this restriction.  Those who were given Discretionary Leave to Remain before July 2012 used to be given three years’ leave without NRPF condition.  Once they had completed six years with Discretionary Leave to Remain, immigrants were entitled to apply for ILR.

Charity workers pack up aid for migrants in Calais

The position was changed on 9th July 2012.  From then, all grants of Discretionary Leave to Remain were granted for a duration of two and half years with the NRPF restriction.  The immigrant is entitled to apply for ILR after completing a new qualifying period of ten years.  During the whole of those ten years, the immigrant will be under the condition of NRPF.

This restriction has been supported over many years by successive governments of different political parties and is consistent with legislative frameworks operated by comparable countries.  This position has been approved by Parliament in primary legislation, most recently in the Immigration Act 2014.

Persons who have limited leave to remain with the NRPF condition may be able to apply to the Home Office to request that the NRPF condition is lifted following a change of their circumstances, especially where this has resulted in them being unable to afford their housing and/or basic living costs, at imminent risk of becoming destitute, a child’s welfare being at risk, or other exceptional circumstances relating to their financial situation. They can do this by making a free change of conditions online application to the Home Office.

The matter has recently gone to the High Court as the Case of W (full anonymity was granted), in which the High Court ruled that the “no recourse to public funds” condition on migrants on the ten year route to settlement breaches Article 3 and is unlawful.  Lord Justice Bean and Mr Justice Chamberlain said that the relevant immigration rules and the current instructions to Home Office caseworkers do not adequately take into account human rights obligations. The oral ruling, delivered by Lord Justice Bean and Mr Justice Chamberlain, includes the statement that:

“It will, however, require aspects of the regime to be amended to make clear to caseworkers the circumstances in which they are obliged not to impose a condition of ‘no recourse to public funds’, or to lift such a condition if it has already been imposed, in the case of a person who is not currently destitute but will imminently become so without access to public funds.”

We have all been facing unprecedented challenges due to the global pandemic.  No one has ever contemplated such a scenario.  The Government has announced different packages to support businesses, employers, companies, self-employed persons, employees and charities.  However, a significant number of migrants with the NRPF condition have been facing severe hardship and difficulty due to Covid-19.  Because of this restriction attached to their visa/leave, various public authorities (such as, central government departments, Local Authorities, the NHS and Department of Social Security) cannot help them.  This is for obvious reason: the law does not allow them to do so.

If any person is facing severe difficulty and hardship and is destitute, he or she should apply to the Home Office to get this condition removed.  The application can be made online and no fees payable.  While applying online, please make sure you provide all the details and explain your extenuating circumstances.  After the application being lodged, documentary proof and evidence of hardship and financial position have to be submitted.  If the Home Office satisfies and lifts the restriction, then the concerned applicant, like a British citizen or Indefinite Leave to Remain (Settled Status) holder, will be eligible to have access to all the benefits that he or she is entitled to.

•Read more articles by Cllr Nazir Ahmed:
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