The COVID-19 pandemic has brought questions around migrants’ rights to access public funds and the National Health Service (NHS) into the spotlight. Migrants can access the government’s Coronavirus Job Retention Scheme via their employer. However, there are limits to the government assistance which some migrants are entitled to following disruption to their normal income, and access to free NHS healthcare may also be unavailable to some people.
No recourse to public funds (NRPF) is an immigration condition imposed on most individuals who hold limited leave to enter or remain in the United Kingdom. It does not apply to individuals who:
- are in the United Kingdom exercising EU free movement rights; or
- have been granted pre-settled status (which is a form of limited leave) under the EU Settlement Scheme.
An individual’s immigration stamp, entry clearance sticker, biometric residence permit or Home Office approval letter will show whether the condition has been imposed.
The condition is breached if an individual accesses the following public funds:
- attendance allowance;
- carer’s allowance;
- child benefit;
- child tax credit;
- council tax benefit;
- council tax reduction;
- disability living allowance;
- domestic rate relief Northern Ireland;
- housing benefit;
- income-based jobseeker’s allowance;
- income-related employment and support allowance;
- income support;
- local authority housing;
- local authority homelessness assistance;
- personal independence payment;
- severe disablement allowance;
- social fund payment;
- state pension credit;
- universal credit; and
- working tax credit.
Breach of the condition is a serious matter and can lead to the person having their leave curtailed or their future UK immigration application refused. The breach can be remedied by repaying the funds received; however, this is not always a straightforward process.
If an individual accesses government funding that falls outside the public funds listed above, this will not be a breach of the NRPF condition.
Therefore, receiving payment from an employer under the furlough scheme will not be considered a breach of the condition.
Further, government guidance confirms that public funds do not include benefits which a person is entitled to because they have paid national insurance contributions, such as:
- contribution-based jobseeker’s allowance;
- incapacity benefit;
- retirement pension;
- widow’s benefit and bereavement benefit;
- guardian’s allowance; and
- statutory maternity pay.
State-funded schooling is also not considered to be a public fund; however, separate conditions for Tier 4 students mean that they cannot study at a state-funded school.
To complicate matters, some people who are subject to the NRPF condition can claim some of the listed public funds (eg, due to an agreement between their country of nationality and the United Kingdom). The Home Office guidance summarises what exceptions apply; however, individuals should consider seeking specific advice on their individual circumstances before deciding whether to claim a particular listed public fund.
People granted limited leave under the 10-year partner, child or parent route or the 10-year private life route can apply to the Home Office to have the NRPF condition lifted. They must provide satisfactory evidence that:
- they are destitute or at imminent risk of destitution;
- there are particularly compelling reasons relating to the impact on a child’s welfare due to the low income of their parents or carers; and
- there were exceptional circumstances relating to the migrant’s financial circumstances at the time that their application was being considered and they now wish to provide evidence of this.
This process does not apply to people on the five-year partner, child or parent routes or other immigration categories, including work or student categories.
The COVID-19 pandemic has led to a considerable surge in applications to have the NRPF condition lifted. The situation has also prompted the government to take additional steps to ensure that migrants made vulnerable by the pandemic are supported in other ways that are not considered to breach the NRPF condition.
People who must make a new immigration application under certain routes can apply for a fee waiver if they are destitute or would become destitute if they had to pay the fee or the immigration health surcharge (IHS).
People who are facing difficulties due to the circumstances of the pandemic can contact the Coronavirus Immigration Team on a case-by-case basis. This may become relevant, for example, where a sponsored employee:
- has been made redundant;
- cannot find alternative sponsored employment; and
- cannot leave the United Kingdom due to flight restrictions or other considerations.
Migrants can also approach their local authority for support.
Everyone in the United Kingdom, regardless of their immigration status, is entitled to free COVID-19 testing and treatment.
However, the Home Office has not clarified whether some NHS charging will be applied to individuals who are within scope of the COVID-19 immigration concessions granting a free automatic visa extension, grace period or exceptional assurance. This may be either because they have not paid the IHS or because they are a visitor or short-term migrant who is normally expected to retain appropriate insurance to cover the cost of health treatment in the United Kingdom.
The Home Office and the Department of Health and Social Care do have mechanisms available to exempt individuals from being charged. Confirmation on whether these will be used in the current situation is urgently needed so that affected individuals are aware of the issue and can look at their options for securing appropriate insurance if required.
Those who are subject to charging may become liable for considerable costs. They may also have future UK immigration applications refused if they have an outstanding debt to the NHS of at least £500. A particular danger is that in some historic cases, notifications of NHS debts have not been made until after the person has submitted and paid for their next immigration application.
— to www.lexology.com