High Court upholds article 3 ‘systems’ challenge to public funds delays

21st November 2024

On 20 November 2024, the High Court handed down judgment in R (SAG & others) v Secretary of State for the Home Department [2024] EWHC 2984 (Admin), an expedited judicial review challenge to the government’s ‘no recourse to public funds’ (NRPF) system, following a hearing on 13 and 14 November 2024.

The default position of the Home Office is to grant UK visas subject to a NRPF condition that prohibits most migrants from accessing welfare benefits unless they can show that they are (or are nearly) destitute. This case challenged widespread delays in the operation of that system. The government’s own evidence was that, on average, applications to lift the NRPF condition were decided in 10 weeks, despite the potential urgency.

This case was brought by three families impacted by the NRPF system, each comprised of migrant mothers and their children (including several who are British) who had experienced homelessness and hardship. They asked the Defendant to remove (or not impose) the NRPF condition on their visas. The Defendant declined to do so, leaving the families struggling to meet their basic needs, some for over 10 months. All the claimants were supported by a leading charity, The Unity Project.

Mr Justice Johnson upheld three separate grounds of challenge, including a finding that the Secretary of State had made unlawful and irrational refusal decisions, breached her statutory duty to have regard to the children’s best interests and breached her positive, ‘systems’ duty in article 3 of the European Convention on Human Rights (‘ECHR’) by failing to minimise the risk of inhuman and degrading treatment.

On the widespread delays, the Court found that there needed to be sufficient, practical and effective prioritisation but the Defendant’s evidence of such was ‘far too vague’; case-by-case expedition was not effective without swift triage as a ‘bare minimum’; and overall ‘the Secretary of State does not have an adequate system in place to reduce, to a reasonable and proportionate minimum, the risk of inhuman and degrading treatment’ (see §§99, 100, 102, 118 & 123).

This judgment is likely to affect the operation of the NRPF system and the hundreds if not thousands of individuals experiencing hardship as a result of being subject to it. SAG & others develops a line of authorities on the limitations on the Defendant’s powers in the context of destitution (or near destitution).

3PB's public law barrister, Ben AmunwaBen AmunwaCall: 2013, represented the claimants, leading Donnchadh Greene of Doughty Street Chambers. They were instructed by Deighton Pierce Glynn (‘DPG’). Olivia Beach of 1 Pump Court drafted one of the sets of grounds, also instructed by DPG. Michael Biggs of 12 Old Square represented the Defendant, instructed by the Government Legal Department.