No recourse to public funds conditions on leave granted
on family and private life grounds
normally be granted three years’ discretionary leave
with access to public funds.
Many migrants in the UK have a ‘no recourse to public
funds’ condition on their leave, meaning that they
cannot access mainstream benefits. This factsheet
provides information relating to those whose leave is
granted on the basis of Article 8 of the European
Convention on Human Rights (right to respect for
private and family life) and outlines when they will be
granted leave with access to public funds.
What does having no recourse to public funds
mean?
Many migrants in the UK have no recourse to public
funds, which means that they cannot access
mainstream benefits and housing assistance. The
definition of a ‘public fund’ specifies precisely which
benefits these are and it includes, for example,
jobseekers’ allowance, housing benefit and social
housing. [1] It does not include compulsory education
or the NHS.
When will someone’s family or private life
leave be granted subject to a no recourse to
public funds condition?
Migrants with many different types of visa or leave have
a no recourse to public funds condition attached. For
example, if you are in the UK on a student or work visa
you will generally have a no recourse to public funds
condition attached to your leave.
Those who have no valid leave in the UK, such as
overstayers and those who are appeal rights exhausted,
have no recourse to public funds. They have no right to
work and have limited options for where they can turn
for support (for more information please see the
factsheet on support for families with no recourse to
public funds at http://bit.ly/XRPQws).
What if someone was granted discretionary
leave based on Article 8 before 9 July 2012?
On 9 July 2012 major changes were introduced to the
Immigration Rules relating to applications made on the
basis of family and private life. Before 9 July 2012, if
someone was granted leave on the basis of right to
respect for private and/or family life (Article 8 of the
European Convention on Human Rights), they would
1 For those who received such a grant and who are
applying for further leave to remain after 9 July 2012,
transitional provisions should apply, meaning that they
will stay under the old rules rather than being
considered under the new rules. [2] In order to stay
under the old rules it is very important that they make
their further leave application in time, i.e. before their
current leave expires, so they do not become an
overstayer. If they are granted further leave to remain,
this should be discretionary leave for three years with
access to public funds. They also benefit from the old
route to settlement, which means that they can apply
for indefinite leave to remain after six years’
discretionary leave. Following the changes to the Immigration Rules that
came into force on 9 July 2012, if you are granted
leave under certain new family migration rules
(contained in part of the Immigration Rules called
Appendix FM) your leave will have a no recourse to
public funds condition.
You will have this NRPF condition if you have limited
leave:
-
under the five-year parent route
under the five-year partner route
as a bereaved partner
as a fiancé(e) or proposed civil partner.
When will other grants of family and private
life leave be subject to a no recourse to public
funds condition?
Other types of family and private life leave may be
granted subject to a no recourse to public funds
condition. Home Office guidance states that certain
types of leave will have an NRPF condition attached
MIGRANT CHILDREN’S PROJECT FACTSHEET - MAY 2013
‘unless there are exceptional circumstances set out in
the application which require access to public funds to
be granted’. [3] Home Office guidance states that
exceptional circumstances will exist ‘where the
applicant is destitute, or where there are particularly
compelling reasons relating to the welfare of a child of
a parent in receipt of a very low income’. [4]
This applies if you have limited leave:
-
as a parent not under the five-year route
as a partner not under the five-year route
granted on the basis of private life under
relevant paragraphs of the Immigration Rules.
Home Office guidance states that whether someone will
have an NRPF condition attached to their leave will
continue to be assessed at later stages when the
applicant applies for further leave. It is therefore
possible that someone could lose their access to public
funds on a subsequent grant of leave. The guidance
states: ‘When an applicant who was granted access to
public funds at the initial grant of leave applies for
further leave to remain, they will be reassessed and
only granted further leave with recourse to public funds
if they continue to be destitute’. [5]
What counts as ‘exceptional circumstances’
for granting access to public funds and how
can this be evidenced?
A person or family will be considered destitute if:


they do not have adequate accommodation or
any means of obtaining it (whether or not their
other essential living needs are met); or
they have adequate accommodation or the
means of obtaining it, but cannot meet their
other essential living needs.
This definition of destitution is the same as the
definition the Home Office uses to assess eligibility for
asylum support for asylum-seekers and refused asylumseekers under section 95 and section 4 of the
Immigration and Asylum Act 1999 (for more
information please see the factsheets on asylum
support at http://bit.ly/TyrHyJ). This means that where
an assessment of destitution has previously been made
in the context of asylum support, the Home Office
2 decision-maker granting leave should normally grant
access to public funds to an applicant under the parent
or partner route or the private life route, unless it is
clear that there has been a change in the applicant’s
financial circumstances since the last assessment of
destitution. If a person or family previously received
asylum support but this was discontinued, they will
need to provide the Home Office with evidence of their
financial position and accommodation arrangements
since the termination of the asylum support.
The same approach will be taken by the Home Office
where a person or a family is receiving support from a
local authority under section 21 of the National
Assistance Act 1948 or section 17 of the Children Act
1989 (for more information please see the factsheet on
local authority support at http://bit.ly/XRPQws). This is
because the local authority will have carried out an
assessment of destitution when they granted such
support. If a person or family was previously supported
by a local authority but is no longer, they will need to
provide the Home Office with evidence of their financial
position and accommodation arrangements since the
termination of local authority support.
In all other cases, avoiding the NRPF condition on the
grant of leave will depend on the applicant evidencing
their destitution in their application and providing
supplementary information to the Home Office on their
destitution when they submit their application for leave.
This evidence should demonstrate that they are
destitute: ‘that they do not have access to adequate
accommodation or any means of obtaining it (other
than from a local authority or charity) or they cannot
meet their other essential living needs (other than from
a local authority or charity)’. [6] It will be necessary to
show why previous means of support are no longer
available. Such evidence should be provided with the
initial application for leave and any subsequent
applications for further leave.
What can be done to avoid a no recourse to
public funds condition on a grant of leave?
It is advisable to try to avoid a no recourse to public
funds condition being placed on leave by providing
clear evidence of why it would be inappropriate when
MIGRANT CHILDREN’S PROJECT FACTSHEET - MAY 2013
submitting the application for leave, not waiting until
after the leave has been granted.
How can a no recourse to public funds
condition be challenged?
If a person or family is receiving asylum support this
should be relatively straightforward. They should state
in a letter with the application that they receive this
support and provide the asylum support reference
number. They should include a photocopy of the most
recent asylum support letter that they have received.
The only way to challenge a no recourse to public funds
condition is through judicial review, which is a
mechanism involving an application to the High Court
that is used to challenge unlawful acts or omissions by
public authorities.
Similarly, if a person or family receives support from a
local authority, providing evidence should be relatively
straightforward. A letter from the local authority
confirming the person or family’s receipt of support
should be sent with the application to the Home Office.
It is in the interests of the local authority to ensure that
those granted leave in the UK have access to public
funds so that they can access mainstream benefits and
the local authority does not continue to hold
responsibility for supporting them over a long period.
If someone has a solicitor helping them to make the
application for leave to the Home Office, the solicitor
should put the arguments about the unsuitability of an
NRPF condition and evidence of this forward with the
application. This should include arguments about why
the welfare of the child requires access to public funds.
If someone has no solicitor, it is very important that
they gather evidence on their financial circumstances
themself and submit it with their application for leave.
If you work with or support a family, you should assist
them to gather this information. For example, if a
family is destitute and receiving support from a charity
or religious organisation, they should submit a letter
from the charity with the application to the Home
Office. If they are homeless and staying with friends or
relations, they should submit letters from these people
outlining the support they have received and why they
can no longer receive it. They could send a letter from
someone such as a teacher, religious leader or medical
professional confirming that they know the family and
they are destitute.
3 Applications for leave to the Home Office based on
Article 8 of the European Convention on Human Rights
(the right to respect for private and family life) are not
eligible for legal aid. This means that a person or family
making an application for leave will often not have
access to a lawyer to assist them unless they can pay
privately (for further information please see the
factsheets on legal aid and representation at
http://bit.ly/XKUEVH). However, judicial reviews –
including immigration judicial reviews – are mostly still
covered by legal aid. This means that a person or family
granted leave subject to a no recourse to public funds
condition should find a law centre or solicitors firm with
a Legal Aid Agency asylum and immigration legal aid
contract (or alternatively a public law contract) to help
them to challenge the NRPF condition by judicial
review. (For further information please see the
factsheets on legal aid and representation at
http://bit.ly/XKUEVH.)
In some cases, the Home Office may settle and agree to
remove the NRPF condition at an early stage when the
solicitor initiates judicial review proceedings. In other
cases, it may be necessary to pursue the claim further.
If a person or family is receiving local authority support,
the local authority should be informed about the
challenge. The local authority is likely to support the
challenge and could provide additional evidence about
why it is inappropriate for those granted leave to
continue to be the responsibility of the local authority.
MIGRANT CHILDREN’S PROJECT FACTSHEET - MAY 2013
Notes
[1] Paragraph 6 of the Immigration Rules defines benefits
considered public funds for the purposes of the Immigration
Rules. These benefits are: attendance allowance, carers
allowance, child benefit, child tax credit, council tax benefit,
council tax reduction, disability living allowance, housing and
homelessness assistance, housing benefit, income-based
jobseeker’s allowance, income-related employment and
support allowance, income support, personal independence
payment, severe disablement allowance, social fund payment,
state pension credit, universal credit, working tax credit. See
also paragraphs 6A to 6C of the Immigration Rules.
[3] Immigration Directorate Instructions Family Members
under the Immigration Rules Section FM 1.0 Partner and
Article 8 ECHR Guidance, p. 51, available at:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/pol
icyandlaw/IDIs/chp8-annex/partners.pdf?view=Binary.
[4] Ibid, p. 51.
[5] Ibid, p. 52.
[6] Ibid, p. 52.
[2] Immigration Directorate Instructions Chapter 8
Transitional Provisions, available at:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/pol
icyandlaw/IDIs/idischapter8/001transitional/transguide.pdf?view=Binary.
4 MIGRANT CHILDREN’S PROJECT FACTSHEET - MAY 2013