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What is the no recourse to public funds condition?

What is the no recourse to public funds condition?

The “no recourse to public funds” condition is imposed on grants of limited leave to enter or remain with the effect of prohibiting the person holding that leave from accessing certain defined public funds. A person who claims public funds despite such a condition is committing a criminal offence and there may well be future immigration consequences as well, as any existing leave can be curtailed or a future application refused.

Additionally, section 115 of the Immigration and Asylum Act 1999 prevents migrants from accessing a range of welfare benefits unless they fall into one of the very limited exceptions.

What is the legal basis for the “no recourse to public funds” condition?

Any person who does not have the right of abode or a right of residence in EU law is required to have leave to enter or remain. So says section 1 of the Immigration Act 1971:

All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person

Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).

When limited (meaning for a defined period of time which is not indefinite) leave to enter or remain is granted to a person, the 1971 Act allows the Secretary of State to impose certain conditions on that leave. This power is conferred by section 3 of the Act:

if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely—

(i) a condition restricting his [work] 4 or occupation in the United Kingdom;

(ia) a condition restricting his studies in the United Kingdom;

(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds;

(iii) a condition requiring him to register with the police;

(iv) a condition requiring him to report to an immigration officer or the Secretary of State; and

(v) a condition about residence.

This is a discretionary power; it does not have to be used. Decisions on when the various powers will and will not be used are guided by a set of regulations called the Immigration Rules HC395 which are provided for also in section 3 of the Immigration Act 1971:

The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).

We then turn to the Immigration Rules themselves to see what is said about imposing this condition.

When do the Immigration Rules say the “no recourse to public funds” condition should be imposed?

The “no recourse to public funds” condition is imposed on almost all migrants granted limited leave. For example, partners, spouses, children, parents of a child in the UK and adult dependent relatives all have the condition imposed on their leave in all cases.

There are some limited exceptions and, unfortunately for us, the Immigration Rules are an extremely long document and the rules on conditions are set out for each and every different immigration category, of which there are a lot. So we have to look at the category under which leave we as granted to see what the rules say.

For example, if leave was granted on the basis of private life and long residence (10 years lawful or 20 years if wholly or partly unlawful) then we look at Part 7 of the Immigration Rules and then paragraph 276A02(b):

In all cases where  … limited leave is granted outside the rules on Article 8 grounds under paragraph 276BE(2), leave will normally be granted subject to a condition of no recourse to public funds, unless the applicant has provided the decision-maker with (i) satisfactory evidence that the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or (ii) satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income

Or paragraph 276BE(1):

Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.

Or if we look at family cases and Appendix FM we can see paragraph GEN.1.10 says:

GEN.1.10. Where an applicant does not meet the requirements of this Appendix as a partner or parent but the decision-maker grants entry clearance or leave to enter or remain outside the rules on Article 8 grounds, the applicant will normally be granted entry clearance for a period not exceeding 33 months, or leave to enter or remain for a period not exceeding 30 months, and subject to a condition of no recourse to public funds unless the decision-maker considers that the person should not be subject to such a condition.

And also paragraph GEN.1.11A, which says that where leave is granted outside the rules on human rights grounds or in some other exceptional circumstances:

leave will normally be granted subject to a condition of no recourse to public funds, unless the applicant has provided the decision-maker with (i) satisfactory evidence that the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or (ii) satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

The general rule for these categories is that the “no recourse to public funds” condition will normally be imposed but there is a discretion not to. Discretion will in particular be exercised where:

  1. the applicant is destitute
  2. there are “particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income”

Having discovered what the rules, say, though, we can then turn to Home Office policy documents to try and learn what the rules actually mean!

What is Home Office policy on when the “no recourse to public funds” condition will not be imposed?

Home Office policy on when a “no recourse to public funds” condition might not be imposed is set out in the Immigration Directorate Instructions at Family Migration: Appendix FM Section 1.0b.

General policy is that migrants are expected to work to support themselves and their family and that sponsoring partners are expected to provide support. Where leave is granted on the basis of private life in the UK the policy says:

where the applicant is granted limited leave to remain on the grounds of private life, they will generally have lived in the UK for a significant period. Where the applicant is granted limited leave to remain as a parent, they will also have lived in the UK for a period before applying for leave under these rules. To show that they meet the terms of this policy, the applicant will have to demonstrate good reasons (by means of evidence) as to why their previous means of support are no longer available to them.

A person is considered destitute if he or she:

  1. does not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
  2. has adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

What constitutes “adequate accommodation” and “essential living needs” and the costs of these may differ depending on the circumstances of the person concerned.

A physical or mental disability is relevant to the assessment of an applicant’s circumstances.

Where a local authority has assessed a person as destitute, the Home Office will nevertheless conduct its own assessment.

Have there been legal challenges to the “no recourse to public funds” condition?

Yes. The current policy of imposing a “no recourse to public funds” requirement in human rights cases was effective from some time in 2013; prior to that policy had been to allow access to public funds in human rights cases.

In a case called R (on the application of Khadija BA Fakih) v Secretary of State for the Home Department IJR [2014] UKUT 513 (IAC) a successful challenge was brought. In this case it was argued that the change of policy was not brought about in the right legal way. The case succeeded but the Home Office responded by reintroducing the change by the correct legal means.

What public funds does the condition prevent access to?

There is a definitive list of what counts as “public funds” for the purposes of the Immigration Rules at paragraph 6:

  • attendance allowance
  • carers allowance
  • child benefit
  • child tax credit
  • council tax benefit
  • council tax reduction
  • disability living allowance
  • (from 6 April 2016) discretionary support payments by local authorities or devolved administrations in Scotland and Northern Ireland which replace the discretionary social fund
  • housing and homelessness assistance
  • housing benefit
  • income-based jobseeker’s allowance
  • income related employment & support allowance – ESA (IR)
  • income support
  • personal independence payment
  • severe disablement allowance
  • social fund payment
  • state pension credit
  • universal credit
  • working tax credit

Different rules apply for EEA nationals, who may be able to claim these benefits, and there are some exceptions for nationals of Algeria, Macedonia, Morocco, San Marino, Tunisia and Turkey.

What services are still available?

Benefits and services not listed are still available. This includes contributory benefits, council tax discounts such as the sole occupancy discount and other services such as health and state funded schooling. There may be other obstacles to accessing those services, such as passport checks for NHS access and only certain migrants qualifying for home tuition fees or maintenance grants but these are not directly linked to the “no recourse to public funds” condition.

Benefits not within the definition of public funds include:

  • Contribution based Jobseeker’s Allowance
  • Guardian’s allowance
  • Incapacity Benefit
  • Contribution-based Employment and Support Allowance (ESA)
  • Maternity allowance
  • Retirement pension
  • Statutory maternity pay
  • Statutory sickness pay
  • Widow’s benefit and bereavement benefit

Housing provided by a housing association does not count as access to public funds and there are other exceptions as well.

All part of the “hostile environment”

The “no recourse to public funds” condition needs to be seen in a wider context. The Government is setting out consciously to create what it calls a “hostile environment” for illegal immigrants. This includes legal measures such as:

  • Preventing those without lawful status from renting properties
  • Making it an offence to work without lawful status
  • Penalising landlords and employers who rent or employ those without lawful status with fines of up to £20,000 or time in prison if done knowingly
  • Forcing banks to check immigration status before allowing an account to be opened
  • Re-entry bans for those who break immigration laws and leave the UK
  • Criminalising driving without lawful immigration status
  • Reducing rights of appeal
  • Extensive new powers of search, entry and seizure for immigration officials

Once the hostile environment was for terrorists. Then it was for serious and organised crime. Now it is for migrants.

Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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