- What is the legal basis for the “no recourse to public funds” condition?
- When do the Immigration Rules say the “no recourse to public funds” condition should be imposed?
- What is Home Office policy on when the “no recourse to public funds” condition will not be imposed?
- Have there been legal challenges to the “no recourse to public funds” condition?
- What public funds does the condition prevent access to?
- What services are still available?
- All part of the “hostile environment”
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 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. Among the possible conditions is one requiring the person “to maintain and accommodate himself, and any dependants of his, without recourse to public funds”.
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 the Immigration Rules.
When do the Immigration Rules say the “no recourse to public funds” condition should be imposed?
In practice, 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. For example, if leave was granted on the basis of private life and long residence (ten years lawful or 20 years if wholly or partly unlawful) then we look at paragraph 276A02(b) of the Rules:
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:
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:
- the applicant is destitute
- 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 Family life (as a partner or parent): private life and exceptional circumstance document.
The general policy is that “those seeking to establish their family life in the UK must do so on a basis that prevents burdens on the taxpayer and promotes integration”. The guidance notes that this approach is now set out in legislation under Part 5A of the Nationality, Immigration and Asylum Act 2002. Section 117B(3) provides that:
It is in the public interest, and in particular in the interests of the economic wellbeing of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
- are not a burden on taxpayers, and
- are better able to integrate into society.
The no resource to public funds condition can be lifted where the person has:
- provided satisfactory evidence that they are destitute or there is satisfactory evidence that they would be rendered destitute without recourse to public funds
- provided satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child on account of the child’s parent’s very low income
- established exceptional circumstances in their case relating to their financial circumstances which, in your view, require the no recourse to public funds condition code not to be imposed or to be lifted
The guidance encourages decision-makers to be prepared to write to applicants to seek additional evidence. By contrast, in deciding whether a person is destitute in the context of granting a waiver of immigration fees, the Home Office actively encourages its caseworkers to “not normally…make additional enquiries to try and establish whether an applicant qualifies for a fee waiver”.
A person is considered destitute if he or she:
- does not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
- 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 and is not fixed to any specific monetary values.
A physical or mental disability is relevant to the assessment of an applicant’s circumstances but is not determinative.
Where a local authority has assessed a person as destitute, the Home Office will nevertheless conduct its own assessment.
The Home Office also expects that evidence is provided at every application stage, regardless of whether an applicant has previously been granted leave without a condition of no recourse to public funds.
Migrants who were granted leave to enter and remain in the UK on the basis of their family and private life without recourse to public funds and who now wish to request removal of that condition can apply to the Home Office separately.
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.
The new policy was initially challenged in R (Khadija BA Fakih) v Secretary of State for the Home Department IJR  UKUT 513 (IAC). 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.
More recently, a challenge to the legality of the no recourse to public funds policy was due to be heard by the High Court in March 2019. But before the case went to trial the Home Office conceded that the policy should be reviewed and that the claimants should receive compensation.
Following this concession by the Home Office, the Unity Project charity and law firm Deighton Pierce Glynn, produced a report examining the disproportionate effect of the no recourse to public fund condition on women, low-income families, disabled people, pregnant women and black and ethnic minority British children.
One story which particularly stood out was that of a single mother called Sarah. Sarah had two children, one of which was British. Despite working full-time, Sarah’s rent was so high that she was forced to move into a single room where the three of them had to share a bed. Often, the family had to relieve themselves in the garden because of the lack of access to the shared toilets.
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.
In respect of child and working tax credits, it is important to highlight that if only one member of a couple is subject to immigration control, then for most tax credits purposes neither are treated as being subject to immigration control.
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.
The Unity Project provides pro bono legal support to migrants facing homelessness or extreme poverty because of the no recourse to public funds condition: www.unity-project.org.uk.
All part of the “hostile environment”
The “no recourse to public funds” condition needs to be seen in a wider context. Over the past few years the government has set out to create what it initially called a “hostile environment” for undocumented 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
More recently, the government has rebranded these measures as a “compliant” rather than “hostile” environment, but its effect on the likes of the Windrush generation is the same. There is more about all this in our hostile environment briefing.
This article was originally published in February 2017 and has been updated so that it is correct as of the new date of publication. Thanks to Bilaal Shabbir for his assistance with the update.