Incorrect application of ‘no recourse to public funds’ condition
11. The Immigration Rules (the Rules) are made up of pieces of legislation that constitute the UK’s immigration law. Before they can be implemented, the Rules are laid before Parliament, often in the form of secondary legislation. They automatically come into force unless either House of Parliament stops them within a fixed period.
12. Our Principles of Good Administration ‘getting it right’ says organisations should comply with the law and have regard for the rights of those concerned. They should act according to their statutory powers and duties and any other rules governing the service they provide. They should follow their own policy and procedural guidance.
13. On 9 July 2012 UKVI implemented a number of changes to the Rules which were, in part, aimed at safeguarding the UK economy. Those changes were not put before Parliament at that point. Even though the changes had not, and should have been, put before Parliament, UKVI proceeded to amend its policy, the Immigration Directorate Instructions (a policy document which provides UKVI staff with guidance when making decisions). As at October 2013 the Instructions said a ‘no recourse to public funds’ condition should be added to grants of limited leave to remain, except in exceptional circumstances.
14. In April 2014, at the time UKVI granted Mr G leave to remain, section 276BE of the Rules, which amounted to the relevant law at the time, made no provision for a ‘no recourse to public funds’ condition to be imposed.
15. On 10 July 2014 UKVI presented to Parliament the Statement of Changes in the Rules (HC532) which would allow UKVI to attach a ‘no recourse to public funds condition’ to limited leave to remain. The changes came into effect on 28 July 2014.
16. This meant that when UKVI granted Mr G leave to remain in the UK in April 2014 it attached a ‘no recourse to public funds’ condition in accordance with the Immigration Directorate Instructions. However, it did not become part of the Rules until July 2014 when it was put before Parliament. In April 2014 when UKVI granted Mr G leave to remain there was no lawful provision in the Rules for UKVI to impose such a condition.
17. We know this because of another case progressing through the courts at the same time. In November 2014 another person (Mrs R), who had a ‘no recourse to public funds’ condition attached to their leave in October 2013, asked the Upper Immigration Tribunal to quash that decision. Of relevance to our investigation into Mr G’s complaint are the first two grounds Mrs R asked the Tribunal to consider. They concerned the lawfulness of UKVI’s ‘no recourse to public funds’ policy.
18. The Tribunal said previous case law had established everything that could reasonably be classified as a rule must be laid before Parliament before being applied as part of the Rules. They found UKVI’s ‘no recourse to public funds’ guidance was sufficiently inflexible that it was, to all intents and purposes, a rule. The Tribunal said, as such, UKVI should have laid it before Parliament as part of the Immigration Rules before applying it to any applicant’s leave to remain. Because UKVI had not done so until July 2014, the Tribunal found UKVI’s ‘no recourse to public funds’ policy, as it existed at the time of its decisions on both Mrs R and Mr G’s application, to be unlawful. It quashed UKVI’s decision on Mrs R’s case on that basis and said UKVI should make a fresh decision on whether to impose the NRPF condition based on her individual circumstances.
19. We find by imposing a ‘no recourse to public funds’ condition on Mr G’s leave in April 2014 UKVI did not ‘get it right’. UKVI should not have taken this blanket approach to applying the NRPF condition in all cases where limited leave was granted until the changes had been approved by Parliament in July 2014. The Rules at the time UKVI made its decision on Mr G’s leave in April 2014 did not permit it to impose the ‘no recourse to public funds’ condition. Therefore, we find UKVI should not have attached that condition to Mr G’s leave and it acted maladministratively. That means Mr G would have been entitled to claim tax credits from April 2014.
20. We now go on to consider the impact of UKVI’s failings. Mr G says the loss of his tax credit entitlement and the requirement he repay a sum of £8,500 was a shock and caused him worry about his financial position. We recognise Mr G believes the appropriate remedy here would be for UKVI to compensate him for the tax credits he would have received between 2014 and 2017, as if the NRPF condition had never been applied. However, to reach a view on the impact of UKVI’s failing, we have considered what should have happened after UKVI attached the condition to Mr G’s leave.
21. While the Rules were changed in July 2014, after being put before Parliament, those changes did not apply retrospectively and so they would have had no impact on the decision UKVI made in Mr G’s case in April 2014.
22. We consider the Tribunal’s decision on Mrs R’s case in November 2014 was an intervening factor and should have prompted UKVI to look again at those similar cases where, prior to July 2014, they had applied the condition when they had no legal basis to do so. UKVI told us it amended its guidance in August 2015, having had time to consider the Tribunal’s decision. It said:
‘In light of the Upper Tribunal judgment in [Mrs R] in November 2014, where, prior to 28 July 2014, an applicant has … been granted leave to remain … subject to a condition of no recourse to public funds, the applicant may seek a reconsideration of the condition code attached to their leave by making an application under the published process for requesting a change of condition code.’
23. UKVI did not contact the people affected to make them aware of the option to request a reassessment. This was a missed opportunity to resolve matters at an early stage. Mr G first contacted UKVI in 2016 about the impact of the NRPF condition when HMRC told him he had to repay his tax credits. UKVI said they should have treated that as an application for a reconsideration of Mr G’s NRPF condition but they did not do so. This was a further missed opportunity on the part of UKVI. This was a very difficult period for Mr G and if UKVI had taken appropriate action sooner, it would have reduced both the financial impact on Mr G, and the worry and upset it caused him.
24. Our Complaint Standards Framework says, where mistakes have been made, organisations should identify suitable ways to put things right. While we are not bound by the Tribunal’s decision, we consider their approach here is reasonable. They directed UKVI about how to put things right – they told UKVI to consider Mrs R’s circumstances and determine whether she should have been entitled to recourse to public funds. We consider that is what UKVI should have done in Mr G’s case in August 2015, or shortly after, when they published their amended guidance.
25. We recognise it may have taken UKVI some time to identify those potentially affected by the Tribunal’s decision, contact them and assess their eligibility. However, given the vulnerabilities of this group of people and the significant impact on people’s financial means, we consider this work should have been carried out promptly. We consider a period of three months would have been reasonable. On that basis, we find Mr G would have been entitled to the tax credits he received between April 2014 and November 2015, as November 2015 is likely to be the earliest point at which UKVI could have reconsidered Mr G’s leave to determine whether there was any awful basis to impose the condition.
26. UKVI have agreed to now reconsider Mr G’s circumstances, as they should have done in August 2015. They say they will consider his circumstances in line with the policy currently in place, which is more lenient and generous than the policy in place in 2015. UKVI recognise, due to the passage of time, Mr G may have difficulty in providing all the evidence they need, and have committed to being as flexible as possible about that. They have said they will provide Mr G with support to understand what evidence he may be able to provide. UKVI have said if they find the NRPF condition should not have been in place they will compensate Mr G for the tax credits he lost from August 2015 onwards. We consider this approach to be in line with the Tribunals’ decision in Mrs R’s case.
27. UKVI missed opportunities in 2015 and 2016 to provide Mr G with clarity about his recourse to public funds and that position has still not been resolved. This means Mr G has lived with the worry and uncertainty for eight years, which is significantly longer than he should have. Mr G told us he was worried about how he would support his family and that he has spent a lot of time trying to resolve this issue. We are sorry to hear the considerable worry this caused Mr G and his family over such a prolonged period. We cannot say Mr G would not have had to repay any tax credits up to 2017, if UKVI had acted promptly to reassess his entitlement following the Tribunal’s decision. However, any overpayment would have been smaller and had less of an impact on him. We find these were significant injustices to Mr G.