Court of Appeal finds that the Home Office failed in its procedural duties to prevent potential breaches of claimants

The Court of Appeal recently published its judgement on ASY and Ors v Home Office [2024] EWCA Civ 373, where it overturned the previous appeal decision and held that claimants were entitled to claim for damages where there were potential breaches of their Article 3 rights under the ECHR (the absolute prohibition on torture and inhuman or degrading treatment).

Background

The case primarily considered the Home Office’s enforcement of the ‘No Recourse to Public Funds (NRPF)’ condition that is routinely imposed on some of those who are granted limited leave to remain in the UK. The NRPF prevents those visa holders from accessing most welfare benefits in the UK, such as Universal Credit or housing assistance. The NRPF condition can sometimes be lifted upon an individual making a “Change of Condition” application to the Home Office.

In this case, the claimants were four single mothers, who had at least one British child each. The claimants were granted limited leave to remain on the basis of their family life, with the condition that they had no recourse to public funds. Under the Home Office’s NRPF policy at the time, the only people in which the NRPF condition could be lifted for in order to allow them to access welfare benefits were:

1. applicants who are ‘destitute’, as defined in Section 95 of the Immigration and Asylum Act 1999; or
2. applicants with compelling reasons relating to the welfare of a child of the applicant, where the applicant is in receipt of very low income.

In a previous case of R (W, A Child By His Litigation Friend J) v SSHD & Anor [2020] EWHC 1299, the Court held that the NRPF policy at that time was unlawful as it failed to impress upon caseworkers processing the applications that they were under a mandatory duty to lift, or not initially impose, the NRPF condition where there was an imminent prospect of a person suffering inhuman or degrading treatment, that was contrary to Article 3 of ECHR.

In ASY & Ors, each claimant applied to have the NRPF condition lifted due to their difficult financial circumstances at the time.  Whilst the Home Office eventually lifted the condition in each case, it was argued that there was a significant delay in the claimants’ individual applications being decided.

Previous court decisions

In December 2020, the claimants brought claims for damages under the Human Rights Act 1998, arguing that their Article 3 rights under the ECHR had been breached due to the Home Office’s failure to lift the NRPF condition attached to their leave in a timely manner.  They relied on the judgement in R (W) 2020 (as cited above) to pursue their claims.

The Home Office sought to argue in the first instance that the claimants had no rights to damages as they could not demonstrate that they had actually experienced inhuman or degrading treatment as a result of not being able to claim public benefits.  The claimants were initially successful at first instance.  HHJ Ralton agreed that they had a right to claim damages for breaches of their procedural rights under Article 3, where the application of the relevant NRPF policy and guidance was previously found to be in breach of these rights in R (W).  HHJ Ralton also rejected the Home Office’s argument that the claimants must prove that they had already suffered inhuman or degrading treatment, in accordance with Article 3, in order to succeed.

In February 2023, the decision was overturned in the High Court in favour of the Home Office.  In this appeal decision, May J held that the judge at first instance (HJJ Ralton) had gone beyond the nature and scope of the Home Office’s procedural duties under Article 3 in coming to his decision.  May J agreed that the clear link between the damage claimed and the alleged violation of Article 3 was not established in the claimants’ circumstances, where the delay in the Home Office lifting the NRPF condition was deemed to be reasonable.

The Court of Appeal’s judgement

The Court of Appeal was unanimous in their decision to find in favour of the claimants, overturning the previous appeal decision.  The Court held that there was a duty on the Home Office to act proportionately, where a person was faced with immediate prospects of being subject to inhuman or degrading treatment.

The Court ultimately held that the claimants may recover damages under the Human Rights Act 1988, if they were:

1. at immediate risk of inhuman or degrading treatment; and
2. suffering severe distress whilst their applications to lift the NRPF condition were being processed.

Importantly, the Court held that a decision on damages would be dependant on the facts of each case and that, in the claimants’ cases, 2 to 4 months delays were not acceptable timeframes where there was an immediate risk of extreme destitution for all claimants. This judgement places a greater duty on the Home Office to implement clear and efficient regulatory and administrative framework to avoid the risk of people experiencing treatment contrary to Article 3 of the ECHR, where their NRPF conditions are under consideration.

It is unclear at this stage whether permission will be granted for the Home Office to appeal the decision to the UK’s Supreme Court.  In the meantime, however, the Court of Appeal’s decision stands and therefore the outcome of this decision may have wider implications for damages claims in cases that deal with the Home Office approach to the NRPF policy in the context of potential destitution.

If you would like our advice or assistance regarding making a ‘Change of Condition’ application, then please do not hesitate to contact one of the experienced solicitors in our immigration team.