SAG & Ors v Secretary of State for The Home Department
[2024] EWHC 2984 (Admin)
PA & Anor, R (on the application of) v Secretary of State for the Home Department
6 October 2023
[2023] EWHC 2476 (Admin)
High Court
A mom from Ghana couldn't get benefits in the UK because of a rule on her visa. The court said the government made a mistake and should have helped her. The government agreed, changed its rules, and now the mom can get the help she needs.
Key Facts
- •First Claimant, a Ghanaian national, entered the UK on a student dependant visa with a No Recourse to Public Funds (NRPF) condition.
- •Her marriage broke down, and she gave birth to a daughter (Second Claimant) who was issued a British passport.
- •The First Claimant applied to switch to a five-year parent route visa and to lift the NRPF condition.
- •The Home Office initially refused to lift the NRPF condition, arguing it lacked the discretion to do so for student dependant visa holders.
- •The Claimants issued judicial review proceedings challenging the legality of the Home Office's decision.
- •The Home Office conceded the initial decision was flawed and withdrew it.
- •Subsequent applications for a change of visa and removal of the NRPF condition were refused.
- •During the judicial review hearing, the Home Office issued a new Operational Policy Instruction (OPI) addressing the issues raised.
- •The parties reached a compromise, with the Home Office agreeing to lift the NRPF condition.
- •The Unity Project and Project 17 provided substantial assistance to the Claimants.
Legal Principles
The Home Secretary retains discretion under section 3(1)(c)(ii) of the Immigration Act 1971 to lift (or not impose) the NRPF condition on a grant of limited leave to remain, including for those granted leave other than on family, private life, or British national (overseas) routes.
Immigration Act 1971, section 3(1)(c)(ii)
Failure to adequately identify the statutory discretion to lift NRPF conditions for those granted student leave is unlawful.
Public law principles (misdirection in law or fettering of discretion)
Decision-makers must give primary regard to the rights and interests of a child.
Borders, Citizenship and Immigration Act 1999, section 55
Outcomes
The Home Office's May decision refusing to lift the NRPF condition was declared unlawful.
The Home Office failed to recognise or consider its statutory discretion to lift the NRPF condition.
Declaratory relief granted confirming the Home Secretary's discretion to lift the NRPF condition in relevant cases and declaring the failure to identify that discretion as unlawful.
To correct the Home Office's misinterpretation of its powers and ensure future compliance with the law.
The NRPF condition was lifted for the First Claimant.
The Home Office reconsidered the application in light of further evidence and agreed to lift the condition given the claimant's destitution and the need to provide for her child.