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Upper Tribunal finds imposition of NRPF was unlawful

Published:

Photo by Jacob Diehl on Unsplash

The case concerned three Tamil asylum seekers (the “Applicants”) who fled Sri Lanka for refugee camps in India, where they had faced persecution. After their boats foundered in the Indian Ocean, they were taken by British authorities to Diego Garcia in the British Indian Ocean Territory, where they were unlawfully detained for three years.

In November 2024, the Secretary of State for the Home Department (“SSHD”) approved their relocation to the UK with six months’ leave outside the Immigration Rules (“LOTR”) and access to public funds. The Applicants subsequently claimed asylum in the UK and their leave to remain was extended by operation of section 3C of the Immigration Act 1971.

After six months in the UK, the SSHD imposed a no recourse to public funds (“NRPF”) condition on the Applicants’ leave to remain. This caused significant hardship to the Applicants, who applied for judicial review of the SSHD’s decision.

The Upper Tribunal held that the decision to impose the NRPF condition was vitiated by four public law errors and breached the Applicants’ rights under the European Convention on Human Rights (“ECHR”):

  1. First, the SSHD wrongly believed that imposing NRPF was necessary for the Applicants to obtain accommodation in the UK. This was an error of law. In fact, without the NRPF condition, the Applicants could have paid for accommodation through Universal Credit.
  2. Second, by taking a decision in November 2024 that she would impose the NRPF condition six months later, the SSHD unlawfully fettered her discretion.
  3. Third, the SSHD failed to take material considerations into account.
  4. Fourth, the decision was procedurally unfair because the Applicants were not given a proper opportunity to make representations before their access to public funds was removed.
  5. Finally, the Upper Tribunal found that the imposition of NRPF breached the Applicants’ rights under Article 1 of the First Protocol to the ECHR as it was not in accordance with the law and was a disproportionate interference with their possessions. In respect of the third applicant, the Upper Tribunal also found a Thlimmenosbreach of Article 14 of the ECHR.

Chris Buttler KC and Jack Boswell acted for the Applicants, instructed by Duncan Lewis and Leigh Day.

The judgment can be read here. Lewis Graham’s blog about the case can be read here.