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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ST & Anor v Secretary of State for the Home Department [2021] EWHC 1085 (Admin) (29 April 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1085.html Cite as: [2021] WLR(D) 251, [2021] ACD 82, [2021] Imm AR 1203, [2021] EWHC 1085 (Admin), [2021] 1 WLR 6047, [2021] WLR 6047 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE LANE
____________________
ST (a child, by his Litigation Friend VW) & VW |
Claimants |
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- and - |
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Secretary of State for the Home Department |
Defendant |
____________________
Mr Kovats QC, Mr Thomann and Mr Tabori (instructed by Government Legal Department) for the Defendant
Hearing dates: 17 and 18 March 2021
____________________
Crown Copyright ©
Lady Justice Elisabeth Laing DBE :
Introduction
i. the Secretary of State's decision on 22 November 2019 to impose a condition of no recourse to public funds ('NRPF') on the grant to C2 of limited leave to remain ('LLR') ('the Decision') and
ii. the NRPF scheme: that is, paragraph GEN1.11A of Appendix FM to the Immigration Rules ('the Rules') and 'Family Life (as a partner or parent) private life and exceptional circumstances' ('the Guidance').
This is the judgment of the Court on that challenge.
i. Ground 1 of these grounds has two distinct aspects.
1. The Decision was unlawful, irrational and arbitrary. The Secretary of State did not treat C1's best interests as a primary consideration (contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act") (ground 1)).
2. The design of the NRPF scheme, and its operation in practice, fail to provide effective protection to the best interests of children and thus breach the duty imposed on the Secretary of State by section 55 of the 2009 Act. We will describe this as 'the section 55 PRCBC ground'.
ii. The NRPF scheme and decisions taken under it unlawfully deprive British citizen children and their parents of statutory entitlements to benefits which are designed to safeguard fundamental rights (not to be homeless, hungry, destitute or subjected to inhuman treatment) (ground 5). We will describe this as 'the statutory construction PRCBC ground'.
These grounds reflect the two main grounds of challenge in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2021] EWCA (Civ) 193. The claimants in that case challenged the fees payable for registering a child as a British citizen. The first of these two grounds succeeded in the PRCBC case. The second did not.
i. The Decision unlawfully discriminated against the Cs
1. contrary to sections 9, 19 and 29(6) of the 2010 Act on the grounds of their colour, and
2. contrary to article 14 of the ECHR (read with article 8 and/or with article 1 of Protocol 1 ('A1P1')) on the grounds of race/colour and/or national origin (ground 3).
We will describe these as 'the 2010 Act ground' and 'the article 14 ground', respectively.
ii. The Secretary of State has designed, and operates, the NRPF scheme without 'due regard' to the equality needs listed in section 149 of the 2010 Act, in particular to the 'differential impacts' of the policy on British children of foreign parents, on non-white British children and on single mothers and their children (ground 2). We will describe this as 'the section 149 ground'.
i. The NRPF scheme 'takes insufficient account of and/or is incompatible with' article 3. The Secretary of State amended the Guidance after the decision of this Court in R (W) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin); [2020] 1 WLR 4420 , but those amendments do not cure the flaws identified in that decision because they fail to ensure that NRPF conditions are, either, not imposed in the first place, or removed quickly enough (ground 6). We will describe this as 'the systemic article 3 ground'.
ii. The NRPF scheme has been running for eight years. The Secretary of State has failed to discharge a positive obligation imposed by article 3 to have an effective inquiry to find out what has happened and to learn lessons (cf R (MA and BB) v Secretary of State for the Home Department [2019] EWHC 1523 (Admin) at paragraphs 38 and 42). MA and BB concerned the physical mistreatment and abuse of immigration detainees by those responsible for detaining them in Brook House Immigration Removal Centre. The Secretary of State accepted in principle that an article 3 investigation was necessary in that case (judgment, paragraph 4) (ground 7). We will describe this as 'the article 3 investigative ground'.
C1's immigration history
The structure of this judgment
i. the legislative framework
ii. the policy framework
1. the Rules
2. the Guidance
iii. the Policy Equality Statements ('PESs') which are relevant to the section 149 grounds
iv. the submissions on the grounds and our conclusions on them.
Before we do so, however, it is convenient for us to consider whether the challenge to the Decision is academic.
Is the challenge to the Decision academic?
'the Secretary of State to take into consideration the welfare of my child in this application. It is necessary to treat the best interest of the child as a primary consideration, I submit that it would not be in the best interest of my son if my application was refused. It would clearly be in the child's best interest to remain in contact with their natural mother and have me in the UK to continue to support him emotionally and physically'.
"Has code 1a been assessed? Yes.
Reasons: Destitution claim not accepted so granted under 1.
Outcome:
Grant LTR under D-LTRPT.1.2 for 30 months until 18/06/22 on code 1."
'Code 1' refers to the NRPF condition.
i. Apart from the letter of 13 May 2019, it is not supported by any contemporaneous document (such as a decision letter, or a GCID note).
ii. Moreover, as Mr Kovats told us, his clients took a draft witness statement from the relevant caseworker and decided not to serve it.
iii. Despite this sequence of events, the Secretary of State later conceded in correspondence that the Decision was 'incorrect'. That position was explained in the summary grounds; the caseworker treated the refusal of the fee waiver as the most important piece of evidence, and did not take into account the non-imposition of a NRPF condition on the 2016 grant of LLR, and did not give any weight to C1's assertion that she did need recourse to public funds.
The legislative framework
The statutory framework: immigration and welfare benefits
The Immigration Act 1971
The Welfare Reform Act 2012
The Immigration and Asylum Act 1999
The Nationality, Immigration and Asylum Act 2002
'(3) It is in the public interest, and in particular in the interest of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons -
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.'
The Borders, Citizenship and Immigration Act 2009
Convention rights
Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 1 of Protocol 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
i. Do the circumstances 'fall within the ambit' of another Convention right?
ii. Is there a difference in treatment between the claimant and another person whose situation is, in relevant respects, analogous?
iii. Is the difference in treatment on the grounds of the claimant's status?
iv. Is the difference in treatment objectively justified?
See In re McLaughlin's Application for Judicial Review [2018] UKSC 48; [2018] 1 WLR 4250 at paragraph 15.
The Equality Act 2010
The discrimination provisions
'(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.'
Section 19(3) provides that the relevant protected characteristics include race, among others. It is convenient for us to refer to 'a provision, criterion or practice' as 'a PCP'.
'….(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation...
Section 31 is headed 'Interpretation and exceptions'. Section 31(4) explains that a 'public function' is 'a function that is a function of a public nature for the purposes of the Human Rights Act 1998'.
Section 149
i. Section 149 does not require a substantive result.
ii. It implies a duty to make reasonable inquiry into the obvious equality impacts of a decision.
iii. It requires a decision maker to understand the obvious equality impacts of a decision before adopting a policy.
The policy materials
Immigration Rules (HC 395), as amended
'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 section 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.'
Guidance to caseworkers
General points
LLR as a parent
The best interests of a relevant child
Recourse to public funds
'Paragraph GEN.1.11A provides the basis in the Immigration Rules for exceptions to the wider policy on migrants not having recourse to public funds. In all cases where an applicant has been granted leave, or is seeking leave, under the family or private life routes the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution without recourse to public funds.' (original emphasis)
'It is good practice to check before concluding consideration of an application where a specific request has been made for access to public funds that the risk of imminent destitution has been properly addressed.'
Instructions
The Policy Equality Statements
The 2015 PES
The 2020 PES
Submissions
i. the PRCBC statutory construction ground
ii. the section 55 PRCBC ground
iii. the 2010 Act ground
iv. the section 149 ground
v. the article 14 ground
vi. the article 3 systemic ground
vii. the article 3 investigative ground.
The PRCBC statutory construction ground
The PRCBC section 55 ground
The 2010 Act ground
i. The Secretary of State does not apply any PCP to C1. The PCP, as defined by the Cs, is applied to C2. It is C2, not C1, who would be entitled to benefits in the absence of a NRPF condition.
ii. The Cs have chosen the wrong comparator. For there to be no material difference between the cases of the Cs and of the comparators, the relevant pool must be people whose LLR under the ten-year route is, or may be, subject to a NRPF condition. There is no evidence that in this pool, non-white applicants are at a particular disadvantage to white applicants. The fact that most of those who are subject to a NRPF condition are black is uninformative, as it seems to reflect the characteristics of those who are granted LLR on the ten-year route.
The section 149 ground
The article 14 ground
The article 3 systemic ground
The article 3 investigative ground
Discussion
The statutory construction PRCBC ground
The PRCBC section 55 ground
The 2010 Act ground
i. The discrimination (if any) on grounds of colour is an accidental product of the fact that large numbers of those who are on the ten-year route, and therefore liable, or subject, to a NRPF condition, are from countries in Africa and Asia.
ii. Parliament has taken the view (expressed in the closely analogous context of Part 5A of the 2002 Act) that it is in the public interest that people who wish to stay in the United Kingdom should be financially independent, because they are not a burden on taxpayers, and are better able to integrate into society. This is part of the legitimate aim.
iii. The relevant parts of Appendix FM of the Rules (which are subject to disapproval by Parliament) express the same legitimate aim.
iv. The ten-year route has been explicitly designed to respect the article 8 rights of the parents of British children who do not meet the financial criteria in the five-year route, and the article 8 rights of those British children, by enabling those parents to stay in the United Kingdom, even though they do not meet the criteria. This is also part of the legitimate aim.
v. The imposition of a NRPF condition creates an incentive to find, and to keep, a job. This is also part of the legitimate aim.
vi. Parents on the ten-year route are entitled to work, although, in reality, particularly if they are single mothers, their ability to work may be limited in practice by their need to look after their child or children.
vii. The potentially harsh effect on of a NRPF condition on parents and children is mitigated by two linked factors.
1. The condition is not automatically, but rather, 'normally' imposed. If a parent and child are (or may imminently become) destitute, the parent can ask for the condition not to be imposed.
2. If the parent's circumstances change, she can apply to have the condition lifted.
These mitigations, which the parent can invoke at any time, mean that the imposition of the NRPF condition is a proportionate means of achieving the legitimate aims we have just described.
viii. As described in the 2020 PES, the Secretary of State has adapted the process so as to ensure that caseworkers actively ask for information and consider destitution and imminent destitution. This helps to make the NRPF scheme a proportionate means of achieving a legitimate aim in practice. We do not underestimate the difficulty of administering the NRPF scheme, nor the likelihood that, in reality, some decisions may not always be made as quickly as is desirable, but the day-to-day management of NRPF scheme is for the Secretary of State, not for the court.
ix. For completeness, we do not consider, in the context of our approach to this case, that whether or not, and if so, to what extent, Parliament has examined, or approved, the NRPF scheme is relevant to whether or not it is objectively justified.
The section 149 ground
The article 14 ground
The article 3 systemic ground
Article 3 procedural ground
Conclusion
i. We grant permission to apply for judicial review of the Decision.
ii. The Decision should be quashed.
iii. The NRPF scheme does not comply with section 55 of the 2009 Act, for the reasons given in paragraphs 157-161, above.
iv. We dismiss the Cs' remaining grounds of challenge.