No recourse to public funds — what is it, has it changed and can it be lifted?

With a pandemic followed by a cost of living crisis, ‘no recourse to public funds’ (NRPF) has become a more acute issue as these factors have greatly affected migrants who cannot access the same support as others. There was a big rise in the number of applications to lift the condition and this led to several developments in both case law and Home Office guidance.

This article will look at what the condition means, how to make an application to have it lifted, and how it relates to fee waiver applications.

This article was originally authored by Djamilla Hitchins, to whom we are indebted, but has been revised and updated by John Donkersley.

Who does NRPF apply to?

NRPF is a condition attached to the visas of most people who are in the UK and are ‘subject to immigration control’. It can only be imposed on time-limited visas — often to work, study or join family in the UK. If a person breaches a condition of their visa they can be prosecuted, refused a future visa or have their current visa cancelled.

People with no time limit on their permission to stay in the UK — known as settlement or indefinite leave to remain — do not have this condition and can claim public funds.

Some people with permission to stay for a limited time also do not have this condition on their stay — for instance refugees or those granted humanitarian protection.

Some people have indefinite leave, and cannot have an NRPF condition. If their sponsor has given an undertaking that they will not claim for the first 5 years of their stay — usually those on adult dependent relative visas only — then benefits regulations may prevent them claiming some benefits until the 5 years is up, unless their sponsors have died.

You can discover whether a client has NRPF by looking either at their

• biometric residence permit (BRP)
• a sticker (‘vignette’) in their passport
• online UK Visas and Immigration account

If they have NRPF then it will say so. It may say ‘No Public Funds’. If their BRP or account does not say anything about public funds then you can assume that they do have access. There are some people who will not have the condition so it is always important to check their visa.

Asylum seekers, failed asylum seekers or anyone who has overstayed their visa or has no legal basis to be in the UK will have no access to public funds. This is not because they have a NRPF condition; it is because they have no status under the immigration rules and are prevented from claiming because of benefits and housing regulations.

EEA Citizens

EEA citizens are in a different position. Their access to public funds will depend on when they have arrived in the UK and how long they have been in the UK.

EEA citizens already in the UK by 31 December 2020 — and their family members later joining them — can access public funds if they have:

• settled status under the EU Settlement Scheme (EUSS)
• pre-settled status under the EUSS AND — for most benefits and housing- have a right to reside — for example as a worker
• made a valid application to the EUSS — they too will have to show a right to reside

EEA citizens living in the UK by 31 December 2020 had until 30 June 2021 to apply to the EUSS. Late applications can still be made if there is a good reason.

EEA citizens newly arriving after 31 December 2020 will need to either apply for leave to remain under the immigration rules or enter as a visitor and will probably have NRPF.

What are public funds?

Benefits

The Immigration Rules set out which benefits are considered public funds:

• attendance allowance
• carers allowance
• child benefit
• child tax credit
• council tax benefit
• council tax reduction
• disability living allowance
• discretionary support payments by local authorities or devolved administrations in Scotland and Northern Ireland which replace the discretionary social fund.
• housing benefit
• income-based jobseeker’s allowance
• income related employment & support allowance — ESA (IR)
• income support
• personal independence payment
• severe disablement allowance
• social fund payment
• state pension credit
• universal credit
• working tax credit

Council tax discounts, such as sole occupancy discounts, are not public funds. Whilst any discretionary payment by a local authority under its powers in section 1 of the Localism Act is recourse, discretionary council tax schemes are not public funds because they are made under other statutory provisions, as are Care Act and Children Act payments.

If a client does have a no recourse condition they can access benefits based on National Insurance contributions such as:

• retirement pension
• widow’s benefit and bereavement benefit
• guardian’s allowance
• statutory maternity pay
• statutory sick pay
• new style JSA & ESA

There are exceptions for nationals of certain countries where reciprocal agreements are in place — even if they have NRPF. There is useful information about which benefits are affected on the NRPF Network website.

Housing

People with NRPF cannot access local authority housing or homelessness assistance. However, if they are the partner of a person who is a British citizen or has indefinite leave to remain then they will not have breached the NRPF condition if the tenancy is in the sole name of the eligible person.

Some housing associations may accept a person with NRPF onto their list directly and this is not classified as public funds as long as it is not from a local authority allocation list.

In early March 2021 the High Court found in the case of R(Ncube) v Brighton and Hove City Council [2021] EWHC 578 (Admin) that, during the Covid-19 pandemic, local councils could lawfully provide accommodation to those sleeping rough who are otherwise ineligible for support. They did this using their powers under section 138 of the Local Government Act 1972 and section 2B of the NHS Act 2006 to provide safe emergency accommodation.

NHS Treatment

NHS treatment is not public funds but it can be chargeable for some migrants.

All primary NHS treatment (for instance from GPs) is free to anyone who needs it regardless of status. A person with NRPF will only have to pay for things such as prescriptions, dental treatment and glasses that everyone in the UK has to pay for — and even then may be able to apply for a low income exemption certificate.

Secondary health treatment provided by a hospital is chargeable except for accident and emergency, but as soon as they move onto a normal ward the charges will accrue unless exempt.

Most people on visas will usually have paid or have been exempt from paying the Immigration Health Surcharge as part of their visa fee, and are entitled to free treatment.

This does not apply to those with a visitor visa. They do not have access to the NHS and will always be charged for NHS services.

People with no legal immigration status do not have access to secondary NHS services and will be charged. In some cases they will be refused treatment

However, asylum seekers and their dependants — including those who are appealing an asylum decision — can also access the NHS, as can refugees and people granted humanitarian protection.

Failed asylum seekers are entitled to all NHS services in Scotland, Wales and Northern Ireland. In England they must be receiving either

• section 4 Asylum Support
• Care Act support from a local authority
• support from a local authority as a ‘looked after’ child

The Home Office can check for unpaid charges and often does when there is an application from an overstayer. If there is a debt of more than £500 a visa application will normally be refused.

Concessions

Free school meals were previously unavailable to children of people with NRPF as they were linked to receipt of certain benefits. However, the temporary extension of free school meals granted during the pandemic has been permanently extended to families with NRPF, children of failed asylum seekers and other groups. It is now means tested.

All children of school age can, and must, attend a state school regardless of immigration status.

If one partner has NRPF and the other is able to claim

The partner without the NRPF condition can claim any benefits they would normally be entitled to, but cannot claim additional allowances for the partner with NRPF. That partner can also claim allowances or benefits for children who have NRPF, other than DLA, but it’s important to take advice on whether this would prejudice the child’s immigration status — see my article ‘Children with ‘no recourse to public funds’ — should I claim benefits for them?

A couple in this position can jointly receive working tax credit and child tax credit — if they’ve not yet been migrated to Universal Credit — without this being a breach of the NRPF condition. However if they are entitled to working tax credit only (but not child tax credit), they would not be able to receive the second adult element of working tax credit.

If the person who is eligible is looking to claim universal credit, housing benefit or council tax reduction they would need advice from a benefits adviser about how to include their partner on their claim. If any extra benefits are received because of a partner who has NRPF then this is a breach of the condition. Carlos Hagi’s article deals with this issue in detail.

Applying to have the condition lifted

The number of people applying to have the NRPF condition lifted during the pandemic, showed the level of hardship experienced.

In 2020 the number of applications had jumped from 843 in January — March to almost 5,700 in April — June, a 572% increase. Of those 5,700, 80% were granted.

By March of 2022 the number of applications had dropped back to pre-pandemic levels with 738 applications a month. In 2023 there were 3,519 applications and 2,289 grants — a lower success rate of 65%.

Who can apply

Those on a family or private life visa can make an application. That is:

• a visa granted as a partner or spouse of a British or settled person or a refugee
• a visa granted as the parent or carer of a child who has been allowed to stay on private or family life grounds.
• a visa granted on the basis of their human rights — including discretionary leave or leave outside the immigration rules

Additionally, anyone on a Hong Kong (BNO) visa can apply, and this has been made a necessary precondition of getting a fee waiver on their next extension application.

Following the case of PA & NA in the High Court the Home Office published a new policy instruction setting out the circumstances in which NRPF conditions may be lifted for other types of immigration status. The policy confirms that the Home Office has the discretion to lift NRPF for any visa. The criteria will include:

• the best interests of the child
• whether they could reasonably be expected to return to their own country. If they can, then particularly compelling reasons would be needed to lift the condition
• if they cannot return, they must be destitute or at immediate risk of destitution, or there must be compelling reasons relating to the welfare of a child

Will an application affect the continuation of a visa?

That depends. Home Office policy states that:

“If you currently have permission to stay under the 5 year partner or parent route and you are granted access to public funds, you will remain on the 5 year route. Your circumstances will be reassessed when you apply for further permission and, to remain on the 5 year route, you will need to meet all requirements of the relevant rules at the time you apply, including any financial requirements.”

“If you successfully apply to change the conditions attached to your BNO visa, it will not affect your ability to apply for settlement through the BNO route after 5 years of living in the UK.”

Applying to lift the condition in other cases will have implications for the continuation of their permission to stay in the UK. Advice for someone who does not have a family, private life or Hong Kong (BNO) visa will be OISC level 2. Giving advice on the application is OISC level 1 for family, private life and Hong Kong (BNO) visas only.

What are the requirements?

The basis for any application is that you are in urgent need of public funds because either:

• you are destitute or at imminent risk of destitution
• there are reasons relating to a child’s welfare which mean you need access to public funds
• you are facing exceptional circumstances affecting your income or expenditure

The definition of destitution

Home Office guidance on lifting the NRPF condition previously stated that a person must actually be destitute or homeless in order to have NRPF lifted. However, in May 2020, the High Court ruled in R (W, A Child By His Litigation Friend J) v Secretary of State for the Home Department & Anor [2020] EWHC 1299 that the then guidance was incompatible with Article 3 of the ECHR and could lead to inhuman and degrading treatment by not taking into account imminent destitution.

Guidance on destitution

The GOV.UK page on applying for lifting the condition says that a person must be destitute in order to succeed, but it now goes on to define a person as being destitute if:

• ‘they do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met)
• they have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs
• they are at risk of destitution if either or both of the above are imminent’ — the guidance looks at the risk in the next 3 months.

This is an important change in the guidance.

Current guidance is now more extensive and also has a section on disability as a cause for exceptional expenses. That arose after the Home Office settled a case being brought by RAMFEL.

The guidance sets out what evidence is needed and where evidential flexibility might be exercised in the absence of certain evidence. It’s worth a read every time you assist with an application.

The application process

The application is made online.

Guidance states that a person must show in their application that their circumstances have changed since their visa was granted and how they are currently supporting themselves. They will need to upload evidence to support every claim they are making. For example, those with a disability will need a letter from a doctor confirming their medical condition, and must be able to link this to increased expenses — for instance heating or transport.

All applicants will always need substantial recent evidence of their financial situation including things like:

• 6 months bank statements
• 6 months of payslips
• breakdown of monthly income and expenditure
• tenancy agreement or mortgage statement
• utility and other relevant bills
• P45 or P60
• letter from a Local Authority or charity confirming any support they provide
• letters from any family or friends who are providing support
• letter confirming any receipt of public funds of applicant or partner

An adviser should go through bank statements and bills to look out for items of income or expenditure that may need explanation — for instance if insurance and fuel payments show they have an asset such as a vehicle, they’ll have to show why they need that and should not sell it.

Some clients who don’t have help to make the application may not apply to lift the condition at all, or if they do it may not be successful. Advisers will need to assess this to determine what level of support they provide. It may be that an adviser who is used to creating financial statements for debt advice can assist with that part.

If the condition is lifted it will still be necessary to demonstrate on their next extension application that they should continue to have access to public funds. So it’s worth approaching that as though it was also an application to lift the condition.

Fee Waivers

Renewing immigration status is an expensive process and can run to thousands of pounds. It is possible for the same categories of people (see above) who can apply to have their NRPF condition lifted to apply online for a fee waiver if they are renewing their visas.

A fee waiver is not available for an indefinite leave application, which has led to some poorer migrants having to continuously extend their limited leave.

Helping a client with a fee waiver application — but not the visa application itself — is not work regulated by OISC. However you should be aware that if an applicant for a fee waiver fails to disclose in full their financial circumstances or gives false information this could lead to their visa application being refused.

The application should be made while a person has valid leave and is submitted online before making their actual visa application.

If the fee waiver is refused, a further 10 working days will be given to submit further evidence. If it is still refused they’ll have 10 working days to submit and pay for the visa application.

If the application for a fee waiver is successful, the visa application must be submitted together with the fee waiver code within 10 working days. Even if the visa expiry date has passed by the date an (in-time) fee waiver is approved, the visa application will also be treated as being in time when it’s submitted within those 10 days. This means section 3C of the Immigration Act will apply and they will continue to have permission to stay pending the outcome of the application.

A fee waiver application can still be made by an applicant without current permission to stay but obviously section 3C leave will not be invoked.

Criteria for a fee waiver

For a fee waiver, Home Office policy requires applicants to show one of the following:

• they are destitute or imminently destitute
• the applicant does not have sufficient funds at their disposal, after meeting their essential living needs, to pay the fee
• their income is not sufficient to meet a child’s particular and additional needs
• they are faced with exceptional financial circumstances

On sufficient funds, the Home Office guidance says:

“You should carefully consider whether the individual has spent in excess of their essential living needs and whether they have any savings. This is to ensure that only those who genuinely cannot afford the fee or have not had the ability to save for the foreseeable fee qualify for a fee waiver.”

The Home Office’s starting point is that the fee is affordable and all aspects of a claimant’s ability to pay are looked at including things such as the ownership of assets (computers, phones, cars), expenditure on anything other than essential needs and reasons why friends and relations cannot help. A good summary of the policy and its implications can be found on Free Movement.

Substantial evidence is essential in these applications. There may be some evidential flexibility but it should not be relied upon.

Additionally, those on a Hong Kong (BNO) visa will need to have already had the no recourse condition lifted and be receiving public funds for their fee waiver application to be considered.

Conclusion

If you are helping a person with NRPF remember to check what help they can already get; if they are eligible to apply for the condition to be lifted; and what type of leave they will be granted if the application is successful.

Though the numbers applying for NRPF to be lifted after Covid-19 has subsided, there are still many people facing hardship and it is important that they know what their options are.

John Donkersley is Senior Immigration Expert at Citizens Advice.

The information in this article is correct as of the date of publication. Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.