News

In February 2022 the Home Office added Carers to the Shortage Occupation List (SoL). This is in place for 12 months and is due to end in February 2023 so applications under this route should be made no later than 14^th February 2023. See more in our article here: 

Make your views count

The House of Lords Justice and Home Affairs Committee is currently gathering evidence for an inquiry into family immigration. Share your views by 15 September 2022.

Follow the link here to have your say: https://committees.parliament.uk/call-for-evidence/2706/

The Committee intends to consider migration policies in whole and, rather than focussing on specific immigration pathways in isolation, intends to investigate the differences between different pathways. It is interested to know about the wider trends in the design of family immigration pathways, how migration policies affect families, and how family migration policies affect society. The Committee will be interested to identify any emerging best practices or lessons learnt in how recent immigration pathways were designed, and how this affects families.

A common scenario is where the applicant is an overstayer but has established a relationship with a partner who is settled in the UK. The first question I am regularly asked is; should an application be made from within or outside the UK. Before advising clients as to which route they should take, it is crucial to consider factors that may count in favour or against each avenue. This can be overwhelming for clients and it is incumbent on advisors to filter out the most salient points. Issues that are raised time and time again are: Chikwamba (2008), Article 8 of the ECHR and Appendix FM of the Immigration rules. The following seeks to briefly explore these issues and how they can affect a partner / spouse application from both within and from outside the UK.

In country application

The leading case and of foremost consideration for such applicants is Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 (25 June 2008); the House of Lords held that it would, likely, be disproportionate in a family case to require a person to leave the UK simply to re-apply from abroad, for no other reason than that this was the normal procedure set out in the rules.  Put another way, the absence of leave should not, on its own, lead to a refusal where the applicant would likely satisfy the relevant entry clearance conditions.   Chikwamba was heralded as a strike for common sense and affirmed in subsequent cases. Sadly, in the decade since this 2008 case, the Home Office has continued to refuse cases that arguably fall within Chikwamba. 

Another consideration outside Chikwamba is Article 8 (protection of a person’s private and family life) of the European Convention of Human Rights (ECHR) both ‘within’ and outside the Immigration Rules. Here, the applicant is required to show that there are ‘insurmountable obstacles’ to his/her family life continuing outside the UK to succeed with his/her application ‘within’ the Rules.  ‘Insurmountable obstacles’ are defined as “very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

The erosion of the principle established in Chikwamba and the combative approach the Home Office appear to take on anything with a whiff of a Human Rights claim has led to unnecessary refusals and appeals. The practical consequences of increased costs, stress and delay have often resulted in clients looking at the alternative to making an in-country application, namely leaving the UK and pursuing an application from their home country.

“Out country” applications

As the phrase states, the applicant will leave the UK and pursue his/her application from abroad, often his/her home country. Appendix FM of the Immigration Rules provides routes to entry clearance based on family life, such as that of a spouse or partner. The section lists several conditions including that the sponsoring partner has an income of no less than £18,600 (more if there are children applicants). The advantage of this route is that it provides applicants with more clarity and if you satisfy the requirements then you should be granted leave to enter the UK, or so you would think. Beware that applicants who have been in breach of their immigration condition(s) in the UK may be refused leave under Paragraph 320(11) of the Immigration Rules. This provides a general power to the Home Office to refuse leave on the basis that the applicants are deemed unsuitable, due to their previous breach of immigration rules. This is a discretionary ground for refusal, which means that an application can be refused but it does not mean that it will be refused. 

Paragraph 320(11) provides: “where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:

(i) overstaying; or

(ii) breaching a condition attached to his leave; or

(iii) being an illegal entrant; or

(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);

and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.”

As can be noted the applicability of S320(11) can be wide ranging. The phrase “catch all” comes to mind. A refusal on this basis will usually raise a right of appeal and subject to pursuing this the matter it will then be considered by an Immigration Tribunal Judge. Aside from the costs of pursuing an appeal, the most difficult factor parties often raise is the emotional toll of separation. Appeals can take up to a year to be heard and that can be very difficult for parties, sometimes leading to a breakdown of relationship.

The “moral” from the above is that, whichever route an applicant decides to take, careful consideration must be given beyond what is noted in the Immigration Rules. Remember it is not for the Home Office to ask for information or documents, the burden is on you to prove your case. As facts differ from case to case, the decision of whether to pursue an application from abroad or within the UK will depend on various factors and applicant’s priorities so ensure that you make an informed decision and obtain good legal advice.

It should be said, at the outset, that there is NO amnesty. This is not to say that there is no case for one.

It has been widely reported that our new Prime Minister, Mr Boris Johnson, is open to the idea of an immigration amnesty. When asked about his stance he was noted to reply:

“But I have to say I do think that our arrangements in theoretically being committed to the expulsion of perhaps half-a-million people who don’t have the correct papers and who may have been living and working here for many, many years without being involved in any criminal activity at all … I think that the legal position is anomalous and we saw the difficulties that kind of problem occasioned in the Windrush fiasco.”

He continued: “We know the difficulties that can be caused and I do think – yes, I will answer her directly – I do think we need to look at our arrangements for people who have lived and worked here for a long time unable to enter the economy, unable to participate properly or pay taxes without documents.

“We should look at it and the truth is, the law already basically allows them an effective amnesty, that’s basically where we have settled now.

“But we should look at the economic advantages and disadvantages of going ahead with the policy that she described, and which I think she and I share.” (The Scotsman 25 July 2019)

Immigration is an emotive issue which often makes a debate polarised. It can be very difficult to consider the topic dispassionately, but this does not mean that we should not, at least, try. A good starting point is “the economic advantages and disadvantages of an amnesty”.

The possible tax contribution of legalising migrants is often cited by pro amnesty advocates as a reason in favour of such policy. Those against amnesty retort that the additional costs to the United Kingdom’s infra structure (additional housing, NHS care) would outweigh the fiscal benefit. The abstract basis (unknown number of migrants and their taxable income) makes any calculation so inaccurate that I doubt it is useful to either camp.

What is not in dispute is the shortage of workers in certain occupations, especially in the care industry. Age UK have stated that:

“Social care in the UK is already in a fragile state. Recent research shows that 130,000 new care workers are needed each year just for the social care workforce to cope with current levels of demand. Right now, there are around 110,000 unfilled care jobs in the UK, and more than 3 in 10 care staff leave their jobs each year.”

There is a desperate shortage in the healthcare industry. This is echoed by the UK Government’s own advisor, the Migration Advisory Committee. MAC is tasked to provide independent advice to the government on immigration policy, and particularly on the Shortage Occupation List (SOL).

Migration Advisory Committee (MAC) in its May 2019 report stated:

“The demand for workers to fill vacancies in healthcare occupations is set to continue to grow as the demand for healthcare services continues to grow. Migration has made an important contribution to the sectors workforce and no doubt will continue to do so. However, the rise in vacancies and concern over lack of staff has occurred under freedom of movement and during a period when many health occupations have been on the SOL. Ultimately it will take more effective workforce planning and efforts to increase the flows into health professions (and decrease flows out) to meet growing demands.”

MAC’s summary was based on evidence provided by organisations in the Care industry including the Independent Care Group (ICG) a Membership organisation representing independent care providers across North Yorkshire and York. Their evidence presented to MAC in January 2019 stated:

“Care workers are the biggest risk. The ICG and others have campaigned for these essential workers to be classified as such and deemed as skilled workforce. Without care workers, the much needed home and domiciliary care in the UK could not be provided.”

“There has been a 1.6million increase in the number of people working in adult social care since 2009. By 2035, it is forecast that a further 59% growth or 950,000 roles will be needed to respond to demand. Given the sector has 8% vacancies at any one time and annual staff turnover of 30.7% it is clear from employment and education trends that this demand cannot be met solely from the domestic workforce.”

It should not be presumed that those regularised by an amnesty will all go on to work as carers, but many may. Any amnesty can also prioritise applicants who have such skills or are willing to work in Social care. An amnesty can therefore mean that there is an immediately available workforce. Such workers are already in the country, are familiar with life here and of great importance to the Care industry many already have experience in Social care. In regularising their status, the UK will have a ready, willing and able pool of people who will be able to fill the large gap of carers which Age UK states to be over 100,000.

Whilst Immigration continues to be an emotive issue, the government should not dismiss the opportunities an amnesty also present. As Prime Minister Boris Johnson stated: “all I will say is we should look at it” (6 of July – ITV news).

Boris Johnson is the new Prime Minister and leader of the Conservative Party.  Whilst campaigning to become the United Kingdom’s next Prime Minister, he announced his support for the idea of an Amnesty for illegal migrants.  Mr Johnson suggested that there are around 500,000 people in London alone who have lived there for a decade or more but who were never registered and “are not able to pay taxes”.  He further stated that “I don’t think it’s commonsensical to think we can deport such a large number of people.  We do need to think of how to regularise their status”.  Mr Johnson has supported the idea of an Amnesty for those who have lived in the United Kingdom for 15 years or more, subject to them having “played by the rules”.

Mr Johnson had previously suggested the idea of an Amnesty when he was Mayor of London.  He seems committed to the idea of an Amnesty and in the height of Windrush Scandal in April 2018, he suggested to the former Prime Minister, Theresa May, that an Amnesty should be granted for anyone in the United Kingdom for 10 years or more, provided that they are “squeaky clean”.

Mr Johnson has been quoted as saying “what we want is a democratically controlled immigration system whereby we can continue to welcome people who can contribute to the UK economy, but done by an Australia-Style points system”.

What is an ‘Amnesty’?

The word Amnesty is often associated with the idea of all migrants present in the UK without permission instantly being granted lawful residence and that  an Amnesty would legally declare that any individual currently in the United Kingdom without a visa is automatically granted lawful leave to stay and to live here going forward.  However, the reality of how an Amnesty is likely to work in practice would probably be very different.

In the past Mr Johnson has already suggested that an Amnesty should be granted to individuals who have a clean criminal record and who are able to meet a qualifying period of residence in the United Kingdom.  In 2009, he suggested a period of 5 years of residence in order to qualify.  He later suggested 10-year and then 12-year periods. In his latest suggestion Mr Johnson indicated that only migrants who have lived in the United Kingdom for at least 15 years would be eligible. 

In fact, the idea of meeting a criterion of lengthy residence in order to qualify for leave is not new or different. We previously had the 14-year long residence rule, which was in force between 2003 and 2012.  Under that rule, migrants who had spent a continuous period of 14 years residence in the United Kingdom were eligible for Indefinite Leave to Remain.  There are also specific provisions under the current Immigration Rules, which allow grant of limited leave to remain to those who have spent more than 20 years in the United Kingdom, to children under the age of 18 who have been in the UK over seven years and for young people aged between 18 to 24 year of age who have spent most of their lives in the UK.  Mr Johnson’s idea is hardly new, but by calling it an Amnesty he is likely to cause concern for those who are opposed to immigrants and immigration. 

In any event, Mr Johnson’s proposal sound very similar to existing provisions and it therefore begs the question of why he had to make such an announcement?  Those who are sceptical may suggest he simply has a much wider political agenda.

Practical issues

If the proposal is accepted, a 15-year period of residence would of course represent an improvement for those who are currently waiting to qualify under the 20-year route.  This would also reduce the documentary burden on applicants who are required to provide evidence to show that they have lived in the United Kingdom for the entire qualifying period. 

It is unclear, however whether these proposals could take shape as a one-off Amnesty or rather as a rolling, long residence qualification route. If the Amnesty is a one-off measure, a question mark would be left over what would happen to people who have lived in the United Kingdom for less than 15 years, say 14 or 13 years.  The option of a singular Amnesty seems unlikely at this stage as Mr Johnson’s suggestion seems to indicate support for an ongoing right to regularise, rather than any limited one-off measure.

The Future

We must remember that Mr Johnson has only just taken up his office as Prime Minister.  It is likely that he will be busy dealing with more imminent issues such as Brexit.  Furthermore, he would no doubt face strong opposition from his own party, given their generally hostile stance on immigration, as seen in the last few years. 

An Amnesty of any sort sounds very appealing, but it must be borne in mind that we already have provisions in place that are very similar to the type of Amnesty that Mr Johnson has proposed.  At present, it seems unlikely that an Amnesty is actually going to take place, but migrants should beware of those claiming that the Amnesty described by Mr Johnson has already been implemented into law. 

Any further developments in relation to an Amnesty will be reported on our website.

The following is based on a recent case, now subject of an appeal, we at Douglass Simon Solicitors, are dealing with. The scenario is one that is familiar to many couples. The parties met and pursued their relationship in the UK. The wife is British, the husband is Filipino and his original visa had expired and was an overstayer. He was already married in the Philippines albeit he had been separated for some time from his first wife.  The husband obtained a divorce, in the UK, against his first wife then he and his second wife set about to marry in the UK. In accordance with current requirements they gave notice to a designated registrar who in turn informed the Home Office, Marriage Unit, about the couple’s intention. The Marriage Unit considered the matter and confirmed that they do not have concerns about the parties proposed marriage so effectively provided their permission enabling the couple to marry in the UK.

After their marriage, the husband returned to the Philippines to pursue a spouse visa application to join his British wife in the UK. To our surprise the Home Office refused the husband’s application solely on the basis that according to the Home Office their marriage was not valid, because in the Home Office’s opinion the husband’s divorce from his former wife was also not valid and he was therefore not free to remarry. The Home Office reasoned that as the husband was in the UK illegally when he obtained a divorce, the divorce is not valid and therefore the subsequent marriage was also not valid. The Home Office further reasoned that as the husband was in the UK illegally the absence of legal domicile in the UK meant that the decree of divorce was not valid. The decision then goes on to state that as he was not validly divorced, his marriage in UK was also “invalid”. It is worth noting that there was a complete absence of reference to any legal doctrine in the Home Office’s decision. Let us not follow the Home Office example and refer to legal principles.

When assessing an application for a spouse visa the Home Office have a legal obligation to look at the Immigration Rules and part of this is E-ECP.2.7 which states: If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.

In the case we are looking at, the Home Office avers that the marriage is invalid, firstly, because the divorce is not valid. This is wrong on various grounds; At the outset, the Home Office’s action is “ultra vires”. Ultra vires is a legal concept older than the Home Office, it means “acting or done beyond one’s legal power or authority”. The husband’s Decree Absolute was validly issued by a Family Court. A Decree absolute issued by the English Family Court is a court order, and as such the Home Office is bound by it just as anyone else in the UK. In disregarding the Decree absolute, the Home Office’s decision is plainly ultra vires; unlawful because it was made outside the remit or authority of the Home Office. Plainly, it was not in their power to unmake the decision.

Secondly, even if we are to pretend that the Home Office has some magical power to invalidate a court order (which thankfully they do not), the decision is still flawed in reasoning that the husband must be permanently and legally domiciled in the UK. The contrary was established in a House of Lords case in 2005 namely Mark v Mark [2005] UKHL 42. Baroness Hale of Richmond at § 49 of the Decision stated: “…there is no reason in principle why a person whose presence here is unlawful cannot acquire a domicile of choice in this country”. A domicile of choice is sufficient to apply for divorce in the English Court.

However, even assuming, that the Home Office’s contention is correct, that the Divorce is not valid, it does not automatically follow that the couple’s marriage in the UK is invalid. In English Family Law there is a distinction between an invalid marriage and a void marriage. The relatively recent case of Akhter v Khan [2018] EWFC 54 offers clear guidance on this issue. A marriage contracted by a person who is already married can be void, but it is not invalid. The Court, surmising previous case law clearly established that unlike an invalid marriage, a void marriage continues to be valid and to have legal effect until a Court dissolves it by way of a Decree of Nullity. That is to say, even if the husband’s divorce from his first wife could be invalidated, the Home Office is still bound to acknowledge the legal effects of the husband’s marriage to his second wife in the UK, as this marriage has not been annulled by the Court. The Home Office in this case appear to again simply proclaim, without any legal evidence, that the marriage is not valid. As if by magic subsuming the Family Courts’ power to grant Decrees of Nullity.

It is commonplace but still frustrating when an application is refused by the Home Office on an incorrect interpretation of legal doctrines. The Home Office in the above case appear to have taken the step further by magically acquiring the power to nullify a divorce and invalidate a marriage. The parties are understandably appealing the decision, but a successful appeal will unlikely make the Home Office reconsider their ever-increasing practice of making decisions without regard to legal principles. Regular readers will recall that at this point I try to provide a “moral of the story” advise, tips and hints to watch out for. Sadly, I am unable to in this case as it is entirely for the Home Office to get their law right.

A common scenario we encounter is where a British elderly and ill parent is in the UK, is cared for by his/her adult child and the adult child either has limited leave which is about to expire or does not have leave to remain. One possible option to consider is an application as a Zambrano carer but be warned that is not for the faint hearted.

To put this into context, between January 2012 and 30 June 2018, so a period of 6.5 years, only 1740 people were deemed to have derived rights as Non -EU carers (Source: Home Office, FOI 50286). Although the figure is exclusive of cases granted after a challenge, the number is still very small. Part of the problem is applicants’ failure to properly prepare their case. Medical reports, detailed statements setting out the dependency between the parties, in my experience, is often lacking. Applicants must remember that it is for them to make out their case. However, if we are to play the blame game, then my vote goes to the Home Office’s recalcitrant attitude towards such applications.

The leading authority – Zambrano (2011) was a European Union law case; it decided that it was wrong under EU law to refuse a non- EU applicant (in this case the Colombian father) a right of residence in Belgium (part of the European Union – as we are – for now) as this would result to depriving the EU national (in this case his two Belgian children) from “the genuine enjoyment of the substance of the rights” they have as citizens of the Union. Put simply, Mr Zambrano leaving Belgium would mean that his children will be forced to leave an EU country as they are dependent on the care provided by their non-EU father. The dependency here is due to the children’s young age rather than illness. Since the Zambrano ruling there have been a trickle of ‘Zambrano ilk’ cases. The most recent being MS (Malaysia) and it is worth noting the importance of this very recent Court of Appeal case.

The case of MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580 again examined the issue of dependency but this time the parent is the dependant. The case involved a 58-year-old Malaysian citizen who cares for her 87-year-old British mother. The latter suffers from a whole raft of ailments including heart and kidney disease. Both parties are in the UK where the daughter applied to remain to continue caring for her mother. The application was considered against the Zambrano principle. The application was refused, the applicant daughter appealed and won the appeal. The Home Office challenged the successful appeal and lost. Ironically, the Home Office’s action may now assist appellants in similar position as the case provides much needed clarity in what can often be a restrictive application of Zambrano. The court in Paragraphs 25-26 stated:

Whether the boundary (which has impediment on the right to reside on one side and compulsion to leave on the other) is crossed is clearly a matter of fact and degree. What is necessary in each case is to examine the character and quality of the relationship of dependency… because it is that dependency which would lead to the Union citizen being obliged, in fact, to leave the territory of the Union.

The test in the case of adult dependents is a very demanding one, which will be met only exceptionally, but remains one of practical compulsion such that the EU citizen is left with no practical choice but to leave the territory of the Union.

MS (Malaysia) makes clear that only exceptional cases will qualify as parties must show that the EU national ‘is left with no practical choice but to leave the territory of the Union’. Such finding is nothing new in the world of Zambrano but the passage from Lord Justice Underhill below must cause the Home Office to lament their decision to challenge the case. Lord Justice Underhill examined the Home Office’s usual tactic of justifying a refusal by reference to the existence and option of social care i.e. that the state will provide. This contention is particularly frustrating as anyone living in the real world knows that what the state can provide often falls short of the care an elderly parent requires simply because it fails to account for the emotional need of someone vulnerable and possibly at the end of their life. In MS (Malaysia), the court made clear that the existence of alternative care, such as a care home or the social services, should not be the only overriding or predominant factor.

The availability of state-funded medical and social care will, in many cases, make it hard for those who provide care for their elderly relatives to bring themselves within the Regulation. The availability of state care is not, however, to be treated as a trump card in every case, irrespective of the nature and quality of the dependency on the carer which is relied on. Just as the availability of an EU citizen parent to be a carer of a minor child does not render unnecessary an enquiry into the nature of the dependency of the child on her non-EU parent (see Chavez-Vilchez), the availability of state care does not avoid the need to enquire into the actual dependency of the EU citizen on her adult carer. The availability of alternative care is a relevant, but not always decisive factor.

Many will have experienced refusals that have been based largely on the fact that social care is available for their vulnerable family member. It is now so common that I often refer to it as the contention that ‘RULE THEM ALL’ (courtesy of the Lord of the Rings). MS (Malaysia) resoundingly said it is not a ‘trump card’. It remains to be seen whether the Home Office will pay heed to the finding. We can only hope that they do and finally have due regard to the reality of many which is that social care, more often than not, cannot discharge the needs of someone vulnerable due to young age, mental and/or physical illness as it wholly fails to consider the emotional bond that comes out of familial connection.

For more information on the status of a Zambrano carer and the latest news on how Brexit affects such applicants look at our website at www.douglass-simon.com.

In the recent case (7 March 2019) of R (Islam) v Secretary of State for the Home Department [2019] EWCA Civ 500, the Court of Appeal considered Mr Islam’s appeal against the Home Office’s refusal of his application under the Points Based System. The main issue centred on what documentary evidence the Home Office should have considered. The Court of Appeal in exploring this also commented that:

“it is not open to the Respondent [Home Office] in effect to require an additional specified document which is not listed or to require the document itself to show or state something which is not prescribed in the paragraph as needing to be shown or stated by the document.”

The Court’s observation will ring true with many immigration practitioners. The most common facet of refusals is the Home Office’s contention that the applicant has either failed to provide enough evidence or that there was a failure to make a full disclosure of material facts. It means that the applicant did not give enough or that s/he failed by omission. A refusal is made even more frustrating where the “missing” information or documents is not even noted as a requirement in the Home Office’s own policy or guidance. The reality of such unfair treatment of evidence is apparent in ongoing cases we have. One such case is (names changed); Bonnie entered the UK under the Points Based system, she was married in Thailand to Clyde. When asked about her marital status, she declared that she is married and indeed at the time even though there were problems in the marriage she was still living with her husband, Sam. Before applying for entry into the UK she was in correspondence with Clyde. After her Points Based System application was granted, she entered the UK. Shortly after she and Clyde began living together. Clyde suffers from very serious medical conditions making it impossible for him to even travel to Thailand let alone to live there. Bonnie applied to vary and extend her leave to remain based on her relationship with Clyde. Ample evidence was provided in support of the genuineness of their relationship. Medical evidence of Clyde’s serious ill health was also submitted. Despite this Bonnie’s application was refused. The reason for the refusal? Bonnie did not declare the breakdown of her relationship with Sam (the husband in Thailand) in her Points Based system application. The Home Office stated that in failing to make that declaration Bonnie either: (a) entered the UK illegally (failure to disclose material facts) or (b) that her relationship with Clyde is not genuine. The saying “damned if you do, damned if you don’t” comes to mind.

Bonnie’s case would certainly benefit from the logic applied by the Court of Appeal in R (Islam). The first issue being that Bonnie’s application does not require that she declare the problems within her marriage. In fact, there is no section to even do so. The application form asked if she is married and she declared, correctly, that she is. Secondly, and of equal importance, is that in her second application, the Home Office appear compelled to ignore the considerable documents provided in support of their relationship because of the alleged “false declaration” Bonnie made in her first Points Based System application. That second application required that Bonnie provide evidence of her relationship with Clyde and this she did, amply, yet that evidence was ignored by the Home Office.

We are challenging the Decision and so it remains to be seen whether the Tribunal will agree with us; that the Home Office’s practice criticised in R (Islam) of requiring evidence not in fact prescribed whilst on the other hand ignoring relevant evidence, present a disservice to legislation they are bound to uphold. R (Islam) should serve as a reminder that the Immigration rules, policy and guidance are there to give effect to what the law demands and not what the Home Office wants to achieve.

Over the years, migrants have asked this question repeatedly. There is clear confusion about what the Home Office mean by “no recourse to public funds” and this has often caused our clients to misperceive their rights. I will explore in this article the rights of overstayers, migrants who are subject to immigration control and those with indefinite leave to remain in the context of Public funds and NHS treatment. The first thing to note is that ‘public funds’ is quite separate from the NHS.

Public Funds

Most migrants with a visa in the United Kingdom will be familiar with the term “no recourse to public funds”.  What does this actually mean? Well, the Home Office Guidance states that “it means you will not be able to claim most benefits, tax credits or housing assistance that are paid by the state.”  There are some exceptions and ‘public funds’ does not include benefits that are based on National Insurance contributions. 

To put this into perspective, we need to think about the consequences! Where a migrant is in breach of their visa conditions, in other words, when they are claiming benefits while they are prohibited from doing so, their application to extend their visa or to be granted indefinite leave to remain is likely to be refused.

Things are quite clear for overstayers, they are not entitled to receive ‘public funds’, and for those with indefinite leave to remain, they are not restricted from obtaining government funding.  The misunderstanding is usually centred around those who have limited leave to remain and are subject to immigration control.  Where the migrant is studying or working in the United Kingdom under the Points Based System, the Rules are quite clear as they are not entitled to receive any ‘public funds’, but what about those who have a settled or British partner and children?

Migrants would not be considered as accessing ‘public funds’ if the ‘public funds’ are being received by their partner and the migrant’s partner is entitled to receive these ‘public funds’ in his/her own right. Also, where child and working tax credits are claimed by the child’s parents as a couple and one of the parents is subject to immigration control, neither parent is treated as being subject to immigration control. 

Often, this causes confusion and migrants claim benefits that they are not entitled to.  Migrants who are in the United Kingdom with leave as a partner must keep in mind that they may be required to prove that they will be maintained without recourse to ‘public funds’ as one of the requirements of their application to extend their leave and apply for settlement in the United Kingdom.      

Public Funds v NHS

It is important to separate ‘public funds’ from use of the National Health Service (NHS) and General Practitioners (GPs) as they are not considered to be ‘public funds.’   This means that someone may receive NHS treatment, but the same person may not be able to claim ‘public funds’.

Migrants with indefinite leave to remain are entitled to use the NHS for all treatments. However, the entitlement of migrants with limited leave to remain (i.e. subject to immigration control) will depend on the category of treatment they are seeking. NHS guidance distinguishes between primary care (such as seeing your GP), secondary treatment (such as attending a hospital clinic or seeing a specialist doctor or physiotherapist) and hospital treatment.  A common scenario is that a migrant, let’s call her Betty, sees her GP, that GP then refers her to a specialist hospital doctor when it is found that she needs an operation. If Betty has Indefinite leave to remain then she is entitled to receive treatment for all stages under the NHS. If Betty is a student, hence with limited leave, she can see her GP under the NHS, obtain treatment from a specialist doctor or physiotherapist under the NHS because she paid the Immigration Health Surcharge (IHS) when she applied to extend or come into the UK but any hospital treatment she receives will need to be paid for privately.

Betty in both of the above scenarios is considered to be ‘Ordinarily Resident’. However, if Betty is a visitor to the UK, she is not Ordinarily Resident’ so she will not be entitled to any NHS help. There are, however, some exceptions where secondary treatment is free, such as use of the Accident and Emergency Department and family planning services (as, for example, pregnancy related treatment). 

Overstayers are entitled to use the NHS only for primary care services, so they can see their GP but will not be able to receive NHS assistance if they need say referral to a consultant (secondary care) or an operation (hospital treatment).

On the 1^st of February 2016 the Government introduced the “Right to Rent” scheme. Given its function, it was arguably misnamed as its purpose was not to provide Tenants with “rights” to rent but to limit it. The scheme requires landlords to check prospective tenants leave to remain in the UK. Failure to do so could lead to prosecution, fine or even imprisonment. From its inception the scheme was criticised by many as a way of passing the responsibility of immigration checks to landlords with the view to promoting a “hostile environment” against illegal immigrants. Critics of the scheme have repeatedly argued that the scheme does not work and only results to discrimination. The High Court affirmed this in the case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) that the government’s Right to Rent scheme causes racial discrimination in breach of the European Convention on Human Rights. The Judge was clear and arguably damning of the scheme, stating:

“In my judgment, the answer to this issue lies in the findings I have already made in relation to causation. It is my view that the Scheme introduced by the Government does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not. The State has imposed a scheme of sanctions and penalties for landlords who contravene their obligations and, as demonstrated, landlords have reacted in a logical and wholly predictable way. The safeguards used by the Government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective. In my judgment, in those circumstances, the Government cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the Scheme.

… I have come to the firm conclusion that the Defendant [the Government] has failed to justify the Scheme, indeed it has not come close to doing so. On the basis that the first question for the court to decide is whether Parliament’s policy, accorded all due respect, is manifestly without reasonable foundation, I so find. On that basis, there is no balancing of competing interests to be performed.

However, even if I am wrong about that, I would conclude that, in the circumstances of this case, Parliament’s policy has been outweighed by its potential for race discrimination. As I have found, the measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect…”

The Government have said that it will appeal the Decision so the scheme in its current form remains. It is disappointing that despite considerable evidence provided by JCWI and others that the scheme is discriminatory, the Government has failed to acknowledge this. They appear to adopt a “the end justifies the means” approach in that as long as a hostile environment can continue against illegal immigrants, any by-product of the scheme such as discrimination is an acceptable consequence.

Most will accept that Immigration control is crucial for any country. The Government is tasked with ensuring that an effective immigration system is in place. The Government’s power to introduce such laws must however be tempered with checks and balances and the High Court in this case has examined the effect of the scheme with reference to considerable evidence and has concluded that the “Right to Rent” scheme is discriminatory. It is baffling that the Government petulantly insists in its continuance of the scheme. It is akin to the controversial “Certificate of Approval” process that previously required couples to obtain permission to marry from the Home Office. That scheme was in force for years despite a finding by the House of Lords judgment in Baiai (30^th July 2008), that it was discriminatory. The Government finally abandoned the scheme on the 9^th of May 2011, three years after the Court’s Decision against the scheme.  I hope that the Government will not take as long to abolish the “Right to Rent” scheme which is clearly untenable in its continuance.