How to lift the No Recourse to Public Funds condition

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice. 21 December 2023

The “No Recourse to Public Funds” Condition is imposed on grant of limited leave to remain which in effect means that the person holding that leave cannot obtain public funds. However, it is possible to ask the Home Office to lift the condition and there are special criteria to be met.

  1. The Home Office policy of “No Recourse to Public Funds” (NRPF) will not be imposed or can be lifted from leave granted on the basis of family or private life. In cases where the Home Office grants permission to stay as a parent on a five years’ route to settlement it must be granted with no recourse to public funds. In cases where a permission is granted as a parent on a ten years’ route the Home Office must consider whether to grant access to public funds. Access to public funds can be granted where the Applicant has provided satisfactory evidence:
    1. That they are destitute or at risk of imminent destitution;
    2. That there are reasons relating to the welfare of a relevant child which outweighs any reasons for not allowing access; and
    3. They are facing exceptional financial circumstances relating to their income or expenditure.

The Home Office guidance updated on 1 August 2023 states that a person will be eligible to apply to change the conditions attached to the permission if they had permission granted on the basis of family or private life. They will have to provide evidence of their financial circumstances and living arrangements, and this should include documents that are applicable to the individual circumstances such as six months’ bank statements, recent payslips, breakdown of monthly income and expenditure, recent tenancy agreements, recent P45 or P60, etc. If the request is successful, the person will be allowed to receive public funds.

What is the definition of destitution?

A person is destitute if they do not have adequate accommodation or any means of obtaining it or if they have adequate accommodation and means of obtaining it but cannot meet any other essential living needs and they are at risk of destitution if either or both of the above are imminent.

The new case law

Following judicial review proceedings brought by a destitute woman and her one-year-old daughter who were denied access to public funds the Home Office published a new policy instruction setting out the circumstances in which NRFP Conditions will be lifted for those on student leave (The Judicial Review Claim is R (Panor) -v- Secretary of State for the Home Department 2023 EWHC 2746 (Admin)). This decision is the most recent (October 2023) in a set of test cases which have seen the NRPF policy reformed and is a positive step towards dismantling this policy. The amended policy instruction identifies the existence of a discretion to remove the NRPF condition in student cases and includes the matters considered relevant in deciding or removing or not imposing such condition. Under the header “exercising discretion” the new policy instruction states “this OPI is to highlight that Section 3(1)(c)(ii) of the 1971 Immigration Act provides the Secretary of State power to exercise discretion in considering whether to vary the conditions of any leave granted, including the lifting of NRPF from permission granted in all immigration routes. In considering whether to lift or not impose an NRPF condition on someone present in the UK, there is a wide discretion which requires all relevant matters to be taken into account. In particular, the following must be taken into account:

  1. Any application involving a child’s best interests;
  2. Where the Applicant or the dependent child cannot reasonably be expected to return to their home country;

In conclusion, the new guidance is clear that the Home Office has discretion to consider lifting an NRPF condition in order to provide a person with access to benefits and local authority housing assistance regardless of the type of leave to remain that the person has. Due to the requirements that need to be met, the policy change might have limited impact.