Fakih, R (on the application of) v Secretary of State for the Home Department (IJR) [2014] UKUT 513 (IAC)

Date

7 November 2014

Link to judgment

http://www.bailii.org/uk/cases/UKUT/IAC/2014/[2014]_UKUT_513_iac.html

Discrimination ground

Disability

Summary of case

The applicant (F) was the elderly mother of a refugee who herself was in receipt of benefits. F had numerous health problems and was dependent on her daughter for financial and emotional support, in addition to day-to-day care. F applied for leave to remain on Article 8 grounds outside the Immigration Rules on this basis, and was granted limited leave to remain, but with a No Recourse to Public Funds (NRPF) condition imposed. F applied for the NRPF condition to be lifted, but this was refused. She brought judicial review proceedings in the Upper Tribunal challenging the imposition of the condition on her leave, the refusal to remove it and the policy that gave rise to the decision.

There were 3 grounds of challenge, namely:

  1. The policy as to the criteria for imposing a NRPF condition was ultra vires (ie unlawful) as it had not been laid before Parliament;
  2. The Secretary of State had not complied with her duties under s149 of the Equality Act 2010 (Public Sector Equality Duties (PSED)) when formulating the policy;
  3. The Secretary of State’s approach to the decisions in the individual case was unlawful.

Outcome

The Upper Tribunal allowed the application for judicial review, declaring the policy unlawful and finding that the Secretary of State had failed to discharge her duty under the PSED. The Tribunal found that due regard had not been had to the impact of the policy on people with disabilities and that rendered the policy unlawful.