Access to public funds and immigration status

Changes in Scotland's Public Funds

Almost all migrants in the UK who have limited leave to remain rather than indefinite leave to remain have a restriction imposed on their immigration status which means that they cannot access public funds. Paragraph 6 of the Immigration Rules sets out what is included in the definition of public funds.

The Scottish government has replaced some public funds with ones that are specific to Scotland and the Immigration Rules were amended on 5^th October 2023 to reflect these changes.

The Immigration Rules do specifically give power to the Secretary of State to lift the restriction in grants of leave under the private life rules,  in some grants of leave that are made under Appendix FM of the Immigration Rules and those granted leave under the Hong Kong (BNO) route. Where a migrant would otherwise be destitute, or there are reasons relating to the welfare of a child and these outweigh the need to impose the restriction or where there are other exceptional circumstances relating to the applicant’s income and expenditure, then the Secretary of State can choose not to impose this condition.

Key Case Overview: The Ghanaian Student's Public Funds Access

The recent case of R (on the application of PA and another) v SSHD [2023] EWHC 2476 (Admin) concerned a challenge by a Ghanaian national against the Secretary of State’s refusal to allow her to access public funds on her dependent student visa. The Secretary of State had maintained that she did not have the power to exercise discretion to lift the restriction on accessing public funds because she only had this power in relation to immigration permission granted under the private life rules, Appendix FM or Hong Kong BN(O) Route. As a result of this challenge the Home Office conceded the case and published an Operational Policy Instruction called “OPI 1415: Change of conditions – discretion in applications outside of family life, private life or Hong Kong BN(O)” (this document is attached to the judgement.)

Recent Amendments to Home Office Policy

The Home Office have also now amended their policy on access to public funds. The policy now states:

“Whilst a person in most circumstances outside of a family life, private life or Hong Kong BN(O) route would not be granted a change of condition, section 3(1)(c)(ii) of the 1971 Immigration Act provides the Secretary of State power to exercise discretion in considering whether to vary the conditions of any leave granted, including the lifting of NRPF from permission granted in all immigration routes.”

Gradually, following strategic legal challenges the Secretary of State has had to amend her policy so that is now open to any migrant to make an application to have the restriction on public funds lifted from their immigration permission.

Please do contact our Glasgow or Edinburgh Immigration Team if you would like further advice on this.