Social Security Case Law - Spring 2025

Headnote

The Home Office’s failure to ensure timely NRPF decision-making breaches Article 3 ECHR, while also reinforcing the requirement for strong evidence in claims based on child welfare and imminent destitution.

Background

The case involves three separate claims (the SAG case, the LG case, and the BPB case), which were heard together on an expedited basis. In each case, the claimants are foreign nationals, or children of foreign nationals, who have leave to remain in the UK but are subject to a “No Recourse to Public Funds” (NRPF) condition preventing them from accessing assistance via welfare benefits.

As a result, the families experienced hardship and potential homelessness. Each claimant applied to the Home Office to have their NRPF condition removed on the basis that they were destitute. They were granted permission to apply to the High Court to judicially review the Home Offices’ decision.

Legal Issue

The High Court was asked to determine the validity of the Home Office’s refusal to lift the NRPF condition and all three cases were heard together. Each claimant outlined three grounds as to why they are at imminent risk of destitution and should have their condition lifted:

• The NRPF condition is unlawful on common law ground, as the Department took into account irrelevant considerations, made irrational presumptions and departed from immigration rules and guidance;
• The Secretary of State breached their obligations to have regard to the need to safeguard and promote the welfare of children, as protected under Section 55 of the Border, Citizenship and Immigration Act 2009;
• The Secretary of State did not act compatibly with the Claimant’s Convention rights under the Human rights Act 1998 when read in connection with the European Convention on Human Rights (ECHR) under Article 3. With specific regards to the Home Office breaching its duty to provide an adequate administrative system for processing requests to lift the NRPF condition.

Decision

Although the three claims were held at the same time, two of the claims were dismissed (SAG & LG). However, in the case of LPB, the Judge determined the decision not to lift the NRPF condition was to be quashed because it was irrational and failed to consider the child’s best interests. When discussing the issue of the Secretary of State’s heavy reliance on the strict evidence that was required to support an application to life a NRPF condition, the Judge noted in paragraph 86:

It was still necessary to assess the case based on such evidence as was available. Nothing within the guidance or the statutory framework permits the decision maker not to decide the critical issue just because evidence that has been requested has not been provided. 

The Judge also issued a declaration to the home Office’s system for processing applications to lift NRPF conditions which did not adequately safeguard against the risk of inhuman and degrading treatment, and this constituted a breach of Article 3 of the ECHR. It was found that the Home Office’s system for handling NRPF applications is too slow and doesn’t prioritize urgent cases, breaching its duty to prevent inhuman or degrading treatment and breaching the low level systems duty that arises under Article 3 of the ECHR.

It was highlighted that the average time taken to determine a request to lift a NRPF condition is 70 days – Judge Johnson noted that such a long wait time might create an unjustified risk of inhuman and degrading treatment, and that the system should work to prioritize cases in order to minimise this risk. Judge Johnson in paragraph 20 notes:

‘So far as appears from the evidence that has been adduced by the Secretary of State (who has had every opportunity to deal with this point) the system that is in place does not do that bare minimum.’

Relevant Legislation

•  The Borders, Citizenship and Immigration Act 2009, Section 55
• European Convention on Human Rights, Article 3

Relevant Case Law

• R (ST) v Secretary of State for the Home Department [2021] EWHC 1085 (Admin)
• ASY v Secretary of State for the Home Department [2024] EWCA Civ 373