New Immigration Rules On Public Funds & Children

• Published date: 05 May 2022
• Subject Matter: Tax, Immigration, Income Tax, National Insurance, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Geraldine Peterson

On 20 June 2022, a new paragraph (GEN.1.11A) to Appendix FM of the Immigration Rules will take effect, giving further clarity to the use of public funds by those responsible for the care of children, who otherwise, because of the nature of their leave to remain in the UK, would have 'no recourse to public funds' (NRPF).

The old paragraph GEN.1.11A - a 'lack of clarity' in compliance with the duty to children in section 55 of the Borders, Citizenship and Immigration Act 2009

Currently the paragraph reads as follows:-

GEN.1.11A. Where entry clearance or leave to remain as a partner, child or parent is granted under paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D-LTRPT.1.2., it 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 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.

In a challenge before the Administrative Court, ST (a child, by his Litigation Friend VW) & VW v Secretary of State for the Home Department [2021] EWHC (Admin), the Court determined (for reasons discussed at paragraphs 157 through 161 of the judgement) that paragraph GEN.1.11A did not comply with the duty to 'safeguard and promote the welfare of children who are in the United Kingdom', as set out in section 55 of the Borders, Citizenship and Immigration Act 2009 - note also that this duty is imposed in respect of all children in the UK, even if the children are not British citizens.

The case involved a South African mother, who, although working, was a single parent, and had been compelled to access income support, child tax credit, council tax benefit and housing benefit to support her child. She had been granted further leave to remain as the sole carer of her British citizen child with a "no access to public funds" (NRPF) condition. She contested the decision to impose the NRPF condition, stating that these funds were required to support her child, that it was not in his best interests to deny these funds which provided for his care, and his welfare had not been taken into account as a primary consideration.

It was argued by the Home Office in ST that GEN.1.11A as constituted did discharge the section 55 duty to children because the relevant...