Immigration

No Recourse to Public Funds – What does it all mean?

24th June 2021 By Esther Oshinmi

S.115 of the Immigration and Asylum Act 1999 states that a person will have ‘no recourse to public funds’ if they are ‘subject to immigration control’. This means they have no entitlement to most welfare benefits, including income support, universal credit, housing benefit and a range of tax credits.

People ‘subject to immigration control’ include those with limited leave to remain, and this also extends to family members. For example, spouses/partners, children, adult dependant relatives and parents of children in the UK all have this condition imposed on their leave in these cases. Additionally, this is commonly imposed on asylum seekers and those who have overstayed their visas.

Failure to comply with the No Recourse to Public Funds condition may result in:

Your current permission to stay in the UK being revoked
Refusal of your visa extension application
Refusal of future settlement applications, including Indefinite Leave to Remain (ILR) or British citizenship.

Applying for a change of conditions

Paragraph GEN.1.11A of Appendix FM provides that certain types of leave will normally be granted subject to a condition of no recourse to public funds, unless the applicant has provided the decision-maker with:

(a) satisfactory evidence that the applicant is destitute as defined in s. 95 of the Immigration and Asylum Act 1999; or

(b) 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.

For these purposes, a person is ‘destitute’ if they do not have adequate accommodation or enough money to meet living expenses for themselves and any dependants.

When leave has been granted subject to a condition of no recourse to public funds, an application must be made to lift that condition before public funds can be accessed. The Home Office provides for two circumstances in which a person can apply for a change of conditions:

since being granted leave, your financial situation has changed and you have become destitute, or there are now particularly compelling reasons relating to the welfare of your child on account of your very low income, or there are now exceptional circumstances in your case relating to your financial circumstances; or
you were destitute, or there were particularly compelling reasons relating to the welfare of your child on account of your very low income, or there were exceptional circumstances in your financial circumstances at the time of your application, but you failed to provide evidence of this and would now like to rely on this.

You may be able to apply for this change of conditions to allow access to public funds if you have leave to remain under the 10-year parent or partner route, and where the refusal of your application for leave to remain would breach your rights under ECHR Article 8 (the right to respect for private and family life).

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com

Digitalisation of the Immigration System

1st June 2021 By Katie Dilger

On 24 May 2021, the Home Secretary announced further plans for the digitalisation of the immigration system. This intention is that by 2025 the system will be fully digital from beginning to end. The Home Office’s vision is that not only will we continue to use online forms and upload supporting evidence, but all biometrics will be given via apps and individuals will prove their status at the border and to third parties by using a digital record rather than a physical document. As previously announced, the Home Office will also introduce an Electronic Travel Authorisation scheme akin to the United States’ ESTA programme. More detailed information is available in the policy paper published that day, New Plan for Immigration for legal migration and border control.

To date, the use of digital status has not been without controversy. Digital status is being given to EEA nationals who have been granted leave under the EU Settlement Scheme (the EUSS). Under the EUSS, EEA nationals are given a digital record rather than issued with a biometric residence card or any physical evidence of their settled or pre-settled status. Indeed, the grant letter issued to EEA nationals even expressly states that it is not proof of the person’s status. Instead, the Home Office runs a “view and prove” system which requires EEA nationals with status under the EUSS to trigger a share code when they need to prove their status, e.g. to an employer.

The 3Million, an organisation which seeks to protect the rights and interests of EU citizens living in the UK after Brexit, sought to challenge this. It argued that the digital-only policy meant that EEA nationals with status under the EUSS had to be able to access and use the internet effectively if they were to prove their status to third parties. This was likely to disadvantage some groups, including older people, people with certain disabilities and the Roma community.

On 3 May 2021 the challenge was brought to an end by the Administrative Court when it refused permission to bring a judicial review. However, this is unlikely to be the end of the matter. Permission was refused primarily because the claim was regarded as ‘premature’. This is because until the end of June 2021, EEA nationals can still rely on their EEA documents to enter the UK and prove their status. It is only from 1 July 2021 that people will need to rely on the digital system alone.

High Court rules in favour of Windrush victim in landmark ruling

20th May 2021 By Roisin Finnegan

While the Windrush Scheme was designed to remedy the historic injustices suffered by Windrush victims as a result of the failings of past administrations, the cracks in the present Scheme continue to be unveiled. In less than one month, the High Court has ruled against the Home Office twice in cases concerning Windrush. On 23 April 2021, in Hubert Howard v Secretary of State for the Home Department CO/979/2019, the High Court held that the Home Office’s practice of denying Windrush victims with minor criminal convictions citizenship as a result of them failing the restrictive “good character” requirement was irrational and unlawful. This judgment should encourage Windrush victims in a similar situation to re-apply.

The Windrush Scheme most recently came under the spotlight before the High Court on 6 May 2021 in R (Mahabir) v the Secretary of State for the Home Department [2021] EWHC 1177. This case concerned a Windrush victim, Mahabir, who was born in Trinidad and came to the UK at 3 months old. She lived in the UK for 8 years before returning to Trinidad in 1977. By virtue of the Immigration Act 1971, Mahabir became entitled to indefinite leave to remain (“ILR”) in the UK on 1 January 1973. However, this was lost when Mahabir returned to Trinidad and she was unaware of her right to regain her ILR by returning to the UK before 1 August 1988. It was not until 2018, when stories of the Windrush scandal had circulated widely that Mahabir was granted entry clearance for six months to allow her to collect the documentation confirming that her ILR had been restored.

Mahabir entered the UK alone, with her family (including her five children) remaining in Trinidad. In order for Mahabir’s family to join her in the UK, they had to pay application fees amounting to £22,909—an unaffordable fee for Mahabir and her family. Notably, the Windrush Scheme permits fee-free applications for leave to remain for a child of a Windrush victim if they live in the UK but a child living overseas must pay a full application fee.

Mahabir and her family challenged the Home Office’s refusal to allow them to make fee-free applications for leave to enter or remain under the Windrush Scheme. They argued that such refusal led to their family being separated for over 2 years, which was in breach of their right to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR) and their right not to be discriminated against under article 14 ECHR.

The Court held that Mahabir’s article 8 rights had been breached by the unaffordable application fee which rendered the procedure effectively inaccessible and disproportionately interfered with her family life. The Court opined that a criterion of affordability should be introduced as a safeguard, rather than fee-free applications.

While the Court accepted that the benefits of the Windrush Scheme had deliberately been extended only to direct victims of the Windrush scandal, this policy rationale did not justify an interference with Mahabir’s article 8 rights. Ultimately, Mahabir was faced with what Mr Justice Smith described as a “thankless choice”: Mahabir either had to dispense with the remedies the Home Office had granted in order to remedy the injustice suffered by her and other Windrush victims, or she had to break up her family.

The Court held that the Home Office’s failure to treat family members of a Windrush victim preferentially in respect of application fees was indirect discrimination and in breach of article 14 ECHR. The Court also found that distinguishing between applications made from outside the UK and those made from within, when calculating fees, was both an arbitrary distinction and unjustifiable on the facts.

It is hoped that this case will assist many other Windrush victims in bringing their family to the UK.

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com

Long residence ILR: what are the rules on absences from the UK?

15th April 2021 By Andrew Jones

Where a migrant can show that they have lived in the United Kingdom for at least a continuous, lawful 10-year period, they may be eligible for apply for indefinite leave to remain (‘ILR’).

However, one potential sticking point is whether they have been outside of the United Kingdom for too long. That is because the Immigration Rules say that for the period to be “continuous”, the applicant cannot have spent more than 18 months in total outside of the country during those 10 years, or any single absence of six months or more.

The Home Office guidance states that six months is calculated as 180 days and 18 months is calculated as 540 days. The Home Office interprets this very strictly and will only make exceptions to these limits in “compelling or compassionate circumstances”. There have been several stories in the news where applicants have been refused ILR due to their excessive absences, despite having perfectly good reasons for being outside of the country for as long as they were. Unfortunately, in the eyes of the Home Office, the reasons were not compelling enough.

Recently, the Upper Tribunal (Immigration and Asylum Chamber) looked at how the Home Office should be interpreting this rule. In particular, it looked at whether the limit is, in fact, 540 days. The Rules state that the applicant must not have been absent for 18 months – but how long is 18 months? A month is not a fixed period of time. The Home Office argued that a month should be interpreted as being 30 days long, which is how they calculated the limit as being 540 days. The Upper Tribunal disagreed and ruled that 18 months is 548 days and that the Home Office guidance was wrong.

On the face of it, this is not a big difference. However, it did make a big difference to Mrs Chang, whose appeal was being considered by the Upper Tribunal. She had been absent from the United Kingdom for 543 days during the 10-year period she was relying upon. As an illustration of how strict the Home Office is on this issue, her application was refused for that reason. Happily, after the Upper Tribunal decision, she will now be granted ILR.

We have a lot of experience making ILR applications on this basis, including advising clients on how to deal with excessive absences. If you have spent more than 10 years lawfully resident in the United Kingdom and would like advice or assistance on applying for ILR, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com.

The end of the resident labour market test

1st April 2021 By Rachael Ockenden

The launch of the Skilled Worker category on 1 December 2020 heralded a new age for sponsors with the removal of the resident labour market test (RLMT), the time consuming and administratively burdensome advertising requirement of the Tier 2 (General) immigration route. The RLMT arguably did nothing to protect resident workers and was often merely a box-ticking exercise for sponsors.

However, the guidance accompanying the new rules appeared to retain the RLMT requirement leading to months of confusion amongst practitioners and sponsors alike. The guidance stated that the same documents sponsors were required to keep on a sponsored migrant’s file when an RLMT had been completed were still required for sponsorship cases post 1 December 2020.

The guidance was finally amended this month to clarify that there were different recordkeeping requirements for cases where an RLMT was a requirement and for those where it was not. The guidance also gives examples of the permissible circumstances in which no advertising at all would be carried out including where a worker:

was identified through a university milk round;
was already legally working for the sponsor on another immigration route and the sponsor established they were suitable for the role through their previous performance; and
made a speculative application and the sponsor was satisfied they had the necessary skills and experience to do the job.

An explanation and, where practicable, evidence must be provided to support these recruitment practices.

Whilst the clarification provided by the guidance is welcome and reassuring, the guidance still appears to mandate how a sponsor should advertise. RLMT-like documentation is still required to be kept on file and it would arguably be easier for a sponsor to rely upon one of the alternative circumstances rather than advertising for the role. It remains to be seen how the Compliance Officers at the Home Office will assess these cases.

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.