About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Tuesday, 12 November 2013

No Recourse to Public Funds Network

LB Islington have established a really useful network which local authorities can join to share knowledge and experience of dealing with clients whose immigration status involves No Recourse to Public Funds.

The NRPF Network website publishes guidance and assessment guidance, a human rights assessment template, factsheets & news bulletin. Equally useful to local authorities in that if good practice is followed it is likely to protect from judicial review and for those advising the NRPF population to ensure they get the resources & help they need and can have in connection with supporting their children.

Research conducted by the NRPF Network during 2008 found that 48 local authorities were supporting almost 4,000 people with no recourse to public funds (NRPF) at a minimum cost of £33.4 million a year. This is an increase of 8% on expenditure incurred in the financial year 2006/07. Local authorities have a statutory duty to support migrants who have NRPF with assessed community care needs, yet the costs of providing this support are not reimbursed by central government.

The interplay between Schedule 3 to the 2002 Act and section 17 of the 1989 Act was explored by the Court of Appeal in R (on the application of Clue) v Birmingham City Council [2010] EWCA Civ 460 . At paragraphs 54 and 55, Dyson LJ (as he then was), giving the judgment of the Court, explained that, if an applicant seeking assistance would in general be ineligible for support under the terms of the Schedule (i.e. because he/she is unlawfully present in the UK and not an asylum-seeker), the local authority must nevertheless decide whether, and if so to what extent, it is necessary to exercise a power or perform a duty for the purpose of avoiding a breach of Convention rights. Where there is a range of different types of assistance available to the local authority which would avoid a breach of Convention rights, the local authority should identify those types of assistance and then choose between them.

If the local authority considers that there are available to the applicant other sources of accommodation and support so that the withholding of assistance would not cause him/her to suffer from destitution amounting to a breach of Convention rights (typically article 3), that is the end of the matter. However, if it is satisfied that there are no other sources of support and assistance, it must then decide whether there is any impediment to the applicant returning to his/her country of origin. Where the only potential impediment is practical in nature (e.g. the applicant cannot afford to pay for his/her passage to the relevant country), it is open to the local authority to avoid a breach of Convention rights by, for example, funding the applicant's return.

However, Dyson LJ made clear (at paragraph 66) that, when faced with an application for assistance pending the determination of an arguable (i.e. not manifestly unfounded) application for leave to remain in the UK on Convention grounds, a local authority should not refuse assistance if the effect of that refusal would be to require the applicant to leave the UK and thus to forfeit the opportunity of succeeding in his/her application for leave to remain.

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