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A high court has ruled on the legality of a long standing immigration policy, known as NRPF.

Background

No recourse to public funds (NRPF) is a condition imposed on persons due to their immigration status by virtue of Section 115 Immigration and Asylum Act 1999. It restricts such persons from accessing public funds when they may ‘generally’ be entitled to. This policy only affected migrants on non-settlement route (temporary residence) including students, workers, and visitors. The home office reserves the power to widen or narrow the categories of migrants they impose the NRPF.

The 2012 “Hostile Environment” policy introduced by Theresa May’s administration, extended the NRPF condition to include migrant’s on a settlement (permanent resident) route. Now Spousal visa and limited leave granted under family or private life rules are all prohibited by the home office from accessing the over 22 public allowances and benefits even where they will normally qualify. It is this new development that has received a lot of public backlash in recent times.

A Research conducted by The Unity Project formed part of the case. It found that, the NRPF extension has the disproportionate impact on women, low-income families, disabled people, and black and minority ethnic (BAME) children who are settling in the United Kingdom by reason of their family or private life. This disproportionality has the tendency of creating a vicious cycle of poverty and inequality, with migrant children suffering the most. It stated further that, the duty placed on local authorities under section 17 of the Children Act 1989 to safeguard and promote the welfare of children ‘in need’ in their area did not really affect these families. It indicated that some migrant children are wrongly refused this option due to poor interpretation of NRPF. In some cases the local authorities threatens to take custody of these children due to poor care. Thus the particular impact of Corona Virus on destitute NRPF families is a public treat.

Court Case R (W, A CHILD BY HIS LITIGATION FRIEND J) v SSHD

On 7th May Lord Justice Bean delivered a landmark judgement in deciding whether or not the NRPF policy is in fact a breach of the Article 3 rights, and if so what remedies were necessary.

In this case, the applicant, an 8 year old British (W) with his immigrant mother had been denied access to majority of the essential welfare support system and even extends to the child’s access to free school meals. He was living in extreme poverty, as his single mother’s wages as a career has not been enough to cater of both of them and their living necessities without the required support from the state.  Under the Home office (HO) guidelines, the NRPF restriction applies until one is considered destitute or offer Compelling or Exceptional reasons based on the welfare of a child or financial needs before they could make a ‘Change of Conditions’ application for the HO to lift this burden.  The applicant argued argued that, the Home Office’s policy of applying the NRPF condition is discriminatory, and that it is incompatible with Article 3 of the European Convention on Human Rights (ECHR) because it forces people into destitution.

The court heard that, the young Brit have been living his entire life in poverty; he moved schools 5 times due to lack of a stable accommodation, his mother was in severe debts and both had been homeless because it had been illegal under the NRPF policy for them to receive the same state support that helps other low-earning parents to survive, including child and housing benefits, or tax credits. The court further heard that W’s mother’s application for ‘Change of Condition’ had been rejected by the Home Office despite the genuine evidence of destitution presented. It was argued that the NRPF policy is causing immeasurable, irreversible damage to so many people, but particularly children like the boy who brought this legal challenge.

The court heard that, the young Brit have been living his entire life in poverty; he moved schools 5 times due to lack of a stable accommodation, his mother was in severe debts and both had been homeless because it had been illegal under the NRPF policy for them to receive the same state support that helps other low-earning parents to survive, including child and housing benefits, or tax credits. The court further heard that W’s mother’s application for ‘Change of Condition’ had been rejected by the Home Office despite the genuine evidence of destitution presented. It was argued that the NRPF policy is causing immeasurable, irreversible damage to so many people, but particularly children like the boy who brought this legal challenge.

Decision

In passing Judgement, the judge held that, the policy 'as presently formulated' breached Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment. It was indicated that the HO was required to amend its policies, to make clear to caseworkers the circumstances in which they are obliged not to impose a condition of “no recourse to public funds”, or to lift such a condition if it has already been imposed, in the case of a person who is not currently destitute but will imminently become so without access to public funds. Judge Bean recognised that families such as W’s must be given access to the welfare safety net to prevent them from falling into destitution.

Impact

This decision has been widely welcomed by various organisations, immigration advocates and human rights activists. It is expected to provide a lifeline to people unable to work during the Covid-19 pandemic who are blocked from accessing essential state support. This decision will however not affect the ability of the Secretary of State to continue to make grants of leave to remain in the United Kingdom subject to a condition of "no recourse to public funds" in the normal run of cases.

At the meantime, the judgement implies that, there is no need wait to be in destitution or provide evidence of destitution to get NRPF sanctions lifted, the requirement is to prove that without recourse to public funds, one may be destitute. The Home office have now amended NRPF to include people at risk of becoming destitute. e Office needs to take to comply with the judges’ ruling. At the meantime, the judgement implies that, there is no need wait to be in destitution or provide evidence of destitution to get NRPF sanctions lifted, the requirement is to prove that without recourse to public funds, one may be destitute. You can Apply online if you already have leave granted on the basis of your family or private life and your financial circumstances change.

There are thousands of questions that may run in a person’s mind after certain diagnoses, short terminal illness or even severe covid-19 cases. It ranges from who inherits my estate and by how much, to who should take care of my kids and pets. The answer is, without a will, it is not as straight forward as one may think and it is even daring when you have other families or properties elsewhere outside the UK.

The Plaque of Covid-19 places everybody in vulnerable position; from the royal family, heads of Government to the homeless. Hundreds of people who are unable to fight the virus, die daily in UK. Every one of these deaths are sad and disheartening moment for the family and loved ones. Who could expect things could get worse? Dying without a will has plenty of unintended consequences, many of which can be tough on the family left behind.

It will not be uncommon to hear stories of patients of Covid-19 attempting to deliver a message to health care professionals about the apportionment of his/her estates after their death. But this may be rather too late. Yes we all may depart one day and we may have wishes as to who must enjoy what we have laboured for. This article will attempt to explain what happens in the event one dies without making a will and the essence of a wills and trust in these difficult times.

A will or testament is a legal document that expresses a person's wishes as to how their property is to be distributed and affairs managed after their death. The current intestacy rules in the UK are primarily the Intestates’ Estates Act 1952, Administration of Estates Act, 1925 and the Inheritance and Trustees’ Powers Act 2014. They outline a rigid straight forward procedure the distribution of deceased estate and management of his successors. Of course the state will not know who matters to you the most, and therefore had established this blanket provision for all who care less about their estate disbursement. The rule is outline later in this article.

What happens to deceased partner/ cohabitee?

Cohabiting couples are the second-largest family type in UK at 3.4 million (17.9%). Despite this huge number, the law makes no provision for entitlement in the estate should one party die.  This means, irrespective of the lengthy commitment and struggle of live together, in the event of death, you are entitled to nothing of his/her notwithstanding your support.

I recount the ordeal of Witney in Sussex who had lived with her ‘Partner’ over a 9 year period. During this time she had contributed immensely to the partner’s studies and business and both were planning to tie the knot in 2 months. Whiles driving home one day from work, he had a serious accident, and was in coma for almost a month. Witney had to stop working and care for him during these times.  Unfortunately he passed away.  All his estate by law reverts to his parents, including his estranged father who was never in his life. As an Unmarried partner, Whitney was entitled to nothing, she had lost her job, lost her partner and worse of all threatened with eviction from the deceased property, although she paid part of the mortgage, the title was in her partner’s name only. Her only option was to apply to court for financial provision from the partner’s estate (As she had lived with the deceased over 2 years) or argue that there was a Joint tenancy in place due to her contribution (Lloyds Bank plc v Rosset), who could imagine the legal cost, etc. Clearly she would not be the only terrified person in this case; her partner would too, and may be kicking off in the coffin.

What happens to deceased children?

For parents with young children, you may want to know who will take care of your children in such scenario. If the other parent is alive, he/she will take over, however where there are no other parents, your siblings or parents or the other partners parent cannot take over, no no no, not so smooth. The rules indicate that the court or the local council shall decide who will look after the children. The children will therefore be under social care for the length of period the council requires, to choose someone to bare such responsibility. It may well be a person you may vehemently disagree, or never want close to your child.

UK Intestacy Inheritance Tree

Wills or Intestacy? The Corona Virus Legacy

Nothing in the rules expands the distribution of the estate outside this scope to (Co- habitants, step children, friends or even pets) so when none of this family are in existence, the estate of the deceased shall revert to the crown. It is obvious this rules are rigid and takes no account of the individual’s actual wishes. Making a will is therefore not only wise, but an absolute guidance to controlling one’s legacy.

Please contact us for advice/queries on drafting a comprehensive wills or enquiring about estate planning solutions.

The Supreme Court of the United Kingdom on 29th April 2020 delivered a landmark decision in the case AM (Zimbabwe) (Appellant) v Secretary of State for the Home Department (Respondent) following precedence from Paposhvili v. Belgium a Grand Chamber of ECtHR in Strasbourg. The case is important for foreign citizens residing in the UK who committed serious crimes as it determines how Human Rights considerations, particularly Article 3 (Freedom from torture and inhuman or degrading treatment) apply in deportation cases.

Background

AM (Appellant) a citizen of Zimbabwe has been residing in UK for at least 20 years and had established family life with his partner and child both in the UK. He however committed series of offences, highest of which he was jailed for 7 years. This made him a foreign criminal under Section 32(5) of the UK Borders Act 2007 and thus he was subject to automatic deportation. He was therefore issued with a deportation order and detained in 2012 but he appealed before being deported.

At a hearing before the First-tier Tribunal, counsel then appearing for AM relied on his medical condition as an HIV+ and the limits on treatment available to him, in addition to the impact of his deportation on his wife and child, to advance a claim based on Article 8 of the European Convention on Human Rights. The First-tier Tribunal rejected the claims as not strong enough against the public policy test. AM appealed, and the appeal was dismissed by the Upper Tribunal. He then appealed to the courts of appeal.

All this while, counsel for AM had not sought to rely on his Article 3 rights because the position of the law at the time in (N v SSHD [2005] UKHL 31), was unfavourably strict. By that precedence, a court would only grant article 3 on medical grounds if:

‘the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity’. Lady Hale

It meant that, AM would likely not be successful unless there is the likelihood of immediate and eminent death through deportation. Prior to AM’s appeal hearing, the European courts of Human Rights had delivered a judgement in Paposhvili v Belgium [2017] Imm AR 867 which changed the test held by N v SSHD [2005] UKHL 31, for Article 3 Medical grounds decision. In Paposhvili v. Belgium, the Court determines that Article 3 is triggered in cases where:

the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”.

AM’s therefore applied to switch the basis of his appeal from article 8 to article 3.  He argued that he (HIV+) had been receiving treatment from the NHS with a drug which restores his CD4 blood count to a safer level and has since stabilised his condition. He claimed his condition could worsen if deported, as Zimbabwe has no active treatment for HIV, and therefore deportation will be an inhumane punishment for him. Counsel drew the court’s attention to the new rule in Paposhvili. The Appeals court welcomed the decision in Paposhvili at Strasbourg but also indicated that, it was bound by the precedence of the UK Supreme and therefore dismissed the appeal.

AM’s appeal to the Supreme Court was however successful. The Supreme unanimously followed the decision in Paposhvili and departed from N v SSHD [2005]. The Supreme Court has therefore extended the ambit of Article 3 to cover all cases within the category set out in Paposhvili above.

Case Impact

In a situation where a migrant facing deportation has serious health complication, particularly in a nature where the lack of access to its treatment in the receiving country exposes them to a permanent decline in their health or significant reduction in the life expectancy of the individual, It will be a breach of their convention rights to deport such individuals.

The Supreme courts further directs that, the Court or tribunal in handling article 3 claims will now have to put appropriate procedures in place to allow the individual to adduce evidence of the potential risk upon return to the country of origin and for the State to examine the foreseeable consequences of return with regard to both the general situation and the individual’s circumstances. The evidence must be capable of demonstrating “substantial” grounds for a “very exceptional case” because of a real risk of subjection to inhuman treatment.

It is important to have an understanding of the legality of any deportation order, whether it is possible to appeal a deportation decision and what you would need to address in any representation to the courts.

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