Incorrect decision to impose a ‘no recourse to public funds’ condition
12. 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, and they automatically come into force unless either House of Parliament stops them within a fixed period.
13. 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 also follow their own procedural guidance.
14. 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.
15. In October 2013, at the time UKVI granted Mrs D 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.
16. 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.
17. This meant that when UKVI granted Mrs D leave to remain in the UK in October 2013 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. At the time UKVI granted Mrs D leave to remain there was no lawful provision in the Rules for UKVI to impose such a condition.
18. We know this because in November 2014 Mrs D asked the Upper Immigration Tribunal to quash UKVI’s decision. Of relevance to our investigation are the first two grounds Mrs D asked the Tribunal to consider. They concerned the lawfulness of UKVI’s ‘no recourse to public funds’ policy.
19. 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 decision on Mrs D’s application, to be unlawful. It quashed UKVI’s decision on Mrs D’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.
20. We find by imposing a ‘no recourse to public funds’ condition on Mrs D’s leave in October 2013 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 Mrs D’s case in October 2013 did not permit it to impose the ‘no recourse to public funds’ condition Therefore, we find UKVI should not have attached that condition to Mrs D’s leave and it acted maladministratively. That means Mrs D would have been able to claim benefits between 8 October 2013, when she was granted leave, and 5 November 2014, when the Tribunal made its decision on her case.
21. We now go on to consider the impact of UKVI’s erroneous decision to impose the ’no recourse to public funds’ condition on Mrs D’s leave. Our Complaint Standards Framework says, where mistakes have been made, organisations should identify suitable ways to put things right. 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 Mrs D’s case in October 2013. However, we consider the Tribunal’s decision in Mrs D’s case was an intervening factor. From that point on, UKVI acted in accordance with the Tribunal’s decision. Therefore, we have considered the impact on Mrs D between 8 October 2013 (when Mrs D was granted limited leave to remain) and 28 November 2014 (when UKVI issued its final decision on NRPF for Mrs D following the Tribunal decision). We have also considered the impact of not having her complaint with UKVI on these matters resolved until the sharing of our report.
22. Mrs D says UKVI’s decision to impose the condition prevented her from claiming benefits she needed between October 2013 and December 2014 (when she began to receive benefits following UKVI lifting the NRPF on her case). During this period, Mrs D had no other source of income. She was past state retirement age and was suffering from a number of significant health conditions which prevented her from working. She was living with her daughter, who cared for her. At that time, her daughter’s only source of income was Employment Support Allowance and so money was very tight. The ‘no recourse to public funds’ condition meant D could not access benefits. We find, as UKVI should not have imposed the ‘no recourse to public funds’ condition, had it not been for their maladministration, Mrs D would have been able to access the benefits she so desperately needed during this period. As Mrs D applied for these benefits as soon as she was able to, we think on the balance of probability, she would have done this in October 2013 if the NRPF had not been applied to her leave to remain.
23. Following the Tribunal’s decision, Mrs D claimed, and was awarded, Guarantee Pension Credit and Attendance Allowance. However, these benefits could not be backdated.
24. Mrs D says being unable to access benefits meant she, and her daughter, were constantly worrying about their finances between October 2013 and November 2014. She said her daughter received only £72.40 per week, which was not enough to meet all of their basic needs. Mrs D said they frequently went without meals, as they did not have enough money for food or cleaning and personal hygiene products. Mrs D and her daughter both have health issues, needing frequent hospital outpatient appointments and they struggled to find the money they needed to travel to those appointments. Mrs D said the financial hardship caused her constant worry and frequent sleepless nights. Mrs D says this was additional stress when she was already worried about her health. We accept this would have felt particularly acute during this 13 month period. We consider this to be a significant impact on Mrs D.
25. We have also taken into account that Mrs D first complained to UKVI in 2014 about the impact of being denied recourse to public funds but, despite her best efforts, the issue has still not been resolved. We accept this would have felt less acute after she obtained access to financial benefits. However, this means she has lived with the worry and frustration for over ten years, which is significantly longer than she should have. We find this to be a further significant impact on Mrs D.