While the No Recourse to Public Funds (‘NRPF’) condition remains a relatively unknown facet of the highly-litigated landscape of hostile environment policy, it has received greater scrutiny in light of recent litigation and since the publication of a report by the The Unity Project in June 2019. No Recourse to Public Funds is a condition imposed on a person’s immigration status in the UK, which prevents them from accessing mainstream benefits such as Universal Credit and Housing Benefit (more about NRPF can be read here). This article discusses several recent developments concerning NRPF.

Government refuses to publish review of the NRPF policy following judicial review concession

The Unity Project’s report raised “acute child welfare concerns” about children in NRPF families and presented evidence that “women, pregnant people, disabled people and children are more likely to be impacted by the negative effects of the NRPF condition and that this impact will be more severe for these groups”. It also revealed that in March 2019, shortly before a test case challenging the legality of the policy on discrimination law grounds was due to be heard, the Home Office agreed to conduct a “Public Sector Equality Duty (PSED)-compliant review” of the NRPF policy. Under the Equality Act 2010, the Public Sector Equality Duty obliges public authorities to have regard to the effect of their policies on people with protected characteristics (which include race, sex, and disability).
However, it was reported in the October edition of ILPA Monthly that the Immigration Law Practitioners’ Association had written to the Home Office to raise “serious concerns about the failure to engage with external stakeholders following the concession of a judicial review earlier this year, where it was agreed that the No Recourse to Public Funds policy would be reviewed in compliance with the Public Sector Equality Duty”. Sonia Lenegan, Head of Legal Policy at ILPA, further reported that the Home Office’s response was that the review would be “internal only, and that the judicial review did not require their review to be published”. Further litigation is therefore anticipated.

Government trials early years education for two-year-olds in NRPF households

On 30 August 2019, the Department for Education (DfE) issued guidance for local authorities developed with the Local Government Association and the Home Office to trial the provision of free early education for two-year-olds in NRPF families from 1 September 2019 to 30 November 2019. During the trial, children of Zambrano Carers whose parents or carers meet a net income threshold of £15,400, children of parents granted leave to remain on grounds of private and family life under Article 8 of the European Convention on Human Rights, and children whose parents are supported under section 4 of the Immigration and Asylum Act 1999 are now eligible for a free place.

The government first introduced the entitlement to free nursery places for two-year-olds from low-income households in 2014. As children’s eligibility was determined by their parents’ entitlement to mainstream benefits or whether the child had a particular status (such as having a Special Educational Needs statement), children whose parents were subject to a No Recourse to Public Funds condition were largely excluded. ILPA Monthly revealed that the recent change in eligibility for free early years education follows judicial review proceedings against the Secretary of State for Education which challenged the lawfulness of the definition of “eligible child” in the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014. However, the scope of the change is anticipated to be narrow, with the guidance stating that “We expect the numbers of these two year olds to be small”.

Lewisham Council resolves to provide Free School Meals to children in NRPF households and put pressure on Government for funding

While all children in reception, year one, and year two in government-funded schools are entitled to Free School Meals, children’s eligibility for Free School Meals in year three and above continues to be determined by their parents’ entitlement to mainstream benefits. Children whose parents are subject to the NRPF condition are therefore not eligible for Free School Meals, irrespective of the child’s own nationality. In light of this, Lewisham Council resolved on 2 October 2019 to continue working with Lewisham Schools to ensure that children who would otherwise be eligible for Free School Meals – if not for their parents’ NRPF status – are provided with them, as well as to lobby the Government to provide funding for this provision.

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