Permitting access to public funds

Question 1

About this guidance

Accepted Answer

This guidance tells caseworkers how to consider whether to lift or not impose the no recourse to public funds (NRPF) condition for applicants granted permission within the family, private life and Hong Kong BN(O) routes, as well as when to consider exercising discretion for those on other immigration routes.

Contacts

If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors relating to the family and private life routes, then email the Family Policy team.

If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors relating to the Hong Kong BN(O) routes, then email the BN(O) route policy team.

If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors relating to the exercise of discretion for those in other immigration routes, then email the Compliant Environment and Enforcement Unit.

If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance then email the Guidance Rules and Forms team.

Publication

Below is information on when this version of the guidance was published:

version 3.0
published for Home Office staff on 17 July 2024

Changes from last version of this guidance

Guidance clarified regarding which routes under Appendix FM allow for recourse to public funds.

Question 2

Access to public funds for those in family, private life and Hong Kong BN(O) routes

Accepted Answer

General

Those seeking to establish their family or private life in the UK must do so on a basis that prevents burdens on the taxpayer and promotes integration. The family and private life Immigration Rules are predicated in part on safeguarding the economic wellbeing of the UK, which is a legitimate aim under Article 8 of the European Convention on Human Rights (ECHR) (the right to respect for private and family life) for which necessary and proportionate interference in Article 8 rights can be justified.

The Immigration Rules are approved by Parliament and govern the no recourse to public funds (NRPF) policy in grants of permission made under the family, private life and Hong Kong BN(O) routes under the relevant rules, and in grants of permission made otherwise under ECHR Article 8 on the basis of exceptional circumstances.

This approach now carries the full weight of primary legislation under Part 5A of the Nationality, Immigration and Asylum Act 2002, inserted by section 19 of the Immigration Act 2014 and implemented on 28 July 2014. This sets out public interest considerations concerning the maintenance of effective immigration controls and other considerations which apply where a court or tribunal is considering whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8. In particular, it sets out in section 117B(3) of the 2002 act inserted by section 19 of the Immigration Act 2014, that:

’ It is in the public interest, and in particular in the interests of the economic wellbeing of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons –

a) are not a burden on taxpayers, and

b) are better able to integrate into society.’

However, notwithstanding the above, in accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009, the best interests of a child, whether that child is the applicant or a dependant of the applicant, must be taken into account as a primary, although not the only, consideration when deciding whether it is reasonable to impose or maintain an NRPF condition.

The position in Appendix FM and Appendix Private Life

Paragraphs GEN.1.11A and PL 10.5 provide the basis for those in the family and private life routes for exceptions to the wider policy on most migrants not having access to public funds. In all cases where an applicant is being or has been granted Paragraphs GEN.1.11A and PL 10.5 provide the basis for those in the family and private life routes for exceptions to the wider policy on most migrants not having access to public funds. In all cases where an applicant is being or has been granted permission under the following paragraphs, consideration must be given to whether the applicant meets the criteria to have the NRPF condition not imposed or lifted:

D-ECP.1.2., D-LTRP.1.2. (the 10-year partner route)
D-ECC.1.1., D-LTRC.1.1. (the child route)
ECPT.1.2. or D-LTRPT.1.2. (the 10 year parent route)
PL 9.1. (the private life route)

The relevant criteria are:

the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or is at risk of imminent destitution
there are reasons relating to the welfare of a relevant child which outweigh the considerations for imposing or maintaining the condition (treating the best interests of a relevant child as a primary consideration)
the applicant is facing exceptional circumstances affecting their income or expenditure

The position in Appendix Hong Kong British National (Overseas)

Paragraph HK 65.1 provides that a person in the UK with permission on the Hong Kong BN(O) route may have that permission varied to remove the NRPF condition where they have provided the decision-maker with satisfactory evidence that:

the applicant is destitute, as defined in section 95 of the Immigration and Asylum Act 1999, or is at risk of imminent destitution
there are reasons relating to the welfare of a relevant child which outweigh the considerations for maintaining the condition (treating the best interests of a relevant child as a primary consideration)
the applicant is facing exceptional circumstances affecting their income or expenditure

Eligibility for the non-imposition or lifting of the NRPF condition

Applicants are eligible to be considered under this guidance when you are granting them permission:

on the 10 year route as a partner or parent under Appendix FM
as a child under Appendix FM
under Appendix Private Life
under Appendix Hong Kong British National (Overseas) where the applicant has permission within the route

When granting such permission, you must consider whether there is evidence to suggest that the NRPF condition should not be applied.

In addition, applicants who have been granted permission with the NRPF condition within the Appendix FM, Appendix Private Life and Hong Kong BN(O) routes can ask for it to be lifted via a Change of Conditions application.

Evidence

In all cases the applicant must provide relevant documents to evidence their financial circumstances and need for public funds. Where they claim that there are reasons relating to the welfare of a child which outweigh the considerations for imposing the condition or that they are facing exceptional circumstances affecting their income or expenditure, they must also provide documentary evidence to support this.

Evidential flexibility may apply in situations where certain pieces of evidence cannot be obtained.

Evidential flexibility

Evidential flexibility is a principle which allows you to decide a case without requiring every piece of evidence or information set out in the application form.

This is only likely to be applicable in exceptional circumstances where either:

the additional missing evidence is unnecessary because the other evidence provided is clear and compelling
there is a compelling reason why the evidence cannot be provided

The onus is on the applicant to provide sufficient evidence to satisfy you that they meet the criteria for being granted access to public funds, but there will be some cases where providing evidence is more difficult than others.

If you are satisfied that the applicant has provided clear and compelling evidence of their financial circumstances and this demonstrates that they meet the relevant criteria, then evidential flexibility can be applied.

If you are unsure, refer to a senior caseworker before applying evidential flexibility.

Each case must still be considered on its own individual merits in line with the current guidance. If further evidence is required, you may make further enquiries, but it remains the responsibility of the applicant to sufficiently evidence their claimed financial circumstances, or to provide a credible explanation of why such evidence is not available.

If you believe the applicant may qualify for access to public funds in circumstances where all requested documentary evidence has not been provided but remain unsure, refer to a senior caseworker before applying evidential flexibility.

How to assess whether the applicant is destitute

A person is 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

There are no fixed monetary values attached to the destitution test in this context. This means that you can take account of an applicant’s individual circumstances in reaching your decision.

What constitutes ‘adequate accommodation’ and ‘essential living needs’ and the costs of these may be different in different cases, depending on a number of factors, including (but not restricted to):

whether an applicant is supporting any dependants and, if so:
- their number
- age
- needs
the part of the UK an applicant lives in
whether an applicant or someone dependant on them has a disability which requires adjustments to be made to their accommodation

The following questions will help you assess whether the applicant is destitute.

Does the applicant currently have somewhere to live?

are they street homeless?
have they recently been evicted with no increase in income since then?
are they relying on accommodation from a friend or charity?
are they staying in shared accommodation with a partner from whom they are separated?

Is that accommodation adequate?

is there evidence of overcrowding, for example confirmation of overcrowding from a local authority, or would it be considered overcrowded based on the Shelter guidance?
is there any evidence that it contravenes public health regulations, for example no clean water, lack of heating?

Can the applicant afford their accommodation and essential living needs?

how much do they pay for rent, council tax, essential bills, and other essential living needs - combined, is this greater than their income?
are their accommodation costs reasonable for where they live, or could they reasonably be expected to move somewhere less expensive?
are they relying on support from family, friends, a charity or local authority?
do they have savings or assets on which they can rely?
essential living needs also include the costs of maintaining interpersonal relationships and accessing a reasonable level of social, cultural and religious life - can these be met?

A broad breakdown of these essential living needs and the weekly cost associated with them, and which may be used as a guide, can be found in the latest report on review of cash allowance paid to asylum seekers.

If the answer to any of the questions in bold is no, you must grant access to public funds.

Where an applicant is currently in receipt of public funds and you are granting further permission, you must consider whether the applicant could continue to afford their accommodation and essential living needs if the NRPF condition was imposed.

How to assess imminent risk of destitution

A person is at imminent risk of destitution if at the time the application is received, they have accommodation and can meet their essential living needs, but there are reasons why this is unlikely to continue beyond 3 months from the date of application.

The following questions will help you assess whether the applicant is at imminent risk of destitution.

Will the applicant have somewhere to live in 3 months’ time?

are they likely to be evicted?
if their accommodation is being provided for by someone else, is it likely that they will be able to continue to rely on this in 3 months’ time?

Is the accommodation likely to be adequate in 3 months’ time?

Is there anything that would affect this over the next 3 months, for example will it become overcrowded?

Will the applicant be able to afford their accommodation and essential living needs in 3 months’ time?

is their income likely to change over the next 3 months (for example will they become unemployed)?
are the costs of their accommodation or essential living needs likely to increase?
will any savings drop below the threshold in place for eligibility for access to Universal Credit?

If the answer to any of the questions in bold is no, you must grant access to public funds.

How to assess needs of children

Is the applicant’s income enough to meet the needs of any dependent children?

The aim of this consideration is to assess whether a decision to impose, or not lift, the NRPF condition would have a disproportionate impact on a child’s welfare. To do this, you will first need to understand the family’s financial circumstances in order to consider the impact on the child.

You must consider whether preventing access to public funds would lead to the child:

experiencing a lower level of wellbeing than they currently enjoy
being deprived of something beneficial to which they currently have access
not being able to access a specific item of recognised benefit normal for a child

You must consider any childcare that may be needed if the parent is working, any needs relating to school attendance (such as the cost of school trips or uniforms), or any other items that a child could reasonably be expected to benefit from but would not otherwise be considered essential, such as books or toys.

The best interests of any relevant child

Having assessed the likely effect on any relevant child of imposing, or maintaining, an NRPF condition on the applicant, you must then consider whether it would be in the best interests of any relevant child to impose, or to maintain, such a condition.

If an NRPF condition would not be in the best interests of any relevant child and would significantly impact on a child’s needs, you must consider whether, in all the circumstances, and treating the best interests of any relevant child as a primary (but not the only) consideration, the adverse effect of an NRPF condition on the child outweighs any other considerations for imposing or maintaining it.

How to assess exceptional circumstances

It is for the applicant to provide compelling evidence that there is something exceptional about their financial circumstances affecting their income or expenditure that justifies lifting or not imposing the NRPF condition, even though they are not destitute or at risk of imminent destitution and the NRPF condition is not preventing them from meeting their child’s needs. Cases which meet this threshold are likely to be rare. If the applicant has raised exceptional circumstances affecting their income or expenditure, or there are reasons for regarding them as engaged, and insufficient detail has been provided, you must ask for further information.

A decision on whether there are exceptional circumstances affecting income or expenditure that justify permitting access to public funds must be made on a case-by-case basis, taking into account the applicant’s individual circumstances, those of any dependant family members and all the information and evidence the applicant has provided.

A decision to allow access to public funds on the basis of exceptional circumstances affecting income or expenditure must be approved by a senior caseworker.

Applicants who do not respond to requests for further evidence

If an applicant has provided minimal or no evidence in their application, and the information provided is not sufficient to make an informed decision, you can reject the application if they have failed to provide the information after 2 further information requests have been made. In exceptional circumstances, where it is clear an applicant needs more time to submit evidence, it may be necessary to make an additional request or to provide more time for the evidence to be provided. This must only be in exceptional circumstances, such as where the applicant is a victim of domestic abuse or they are homeless.

Applicants must be told in this correspondence that if they fail to provide additional information, their application will be rejected.

Additional guidance on specific topics

Disability

If there is evidence that an applicant or a member of their immediate family unit has a physical or mental disability, you must carefully assess their individual essential living needs and accommodation requirements. Those with disabilities may have increased expenditure because of their specific support and accommodation needs. Where an applicant or their family member has outgoings related to meeting those needs, you must regard these as essential living costs. This could include, for example, attendance at day centres or adjustments to accommodation.

Where someone the applicant relies on for financial support is in receipt of welfare benefits, child benefit or tax credits, this income is relevant when assessing whether the applicant meets the criteria for being granted access to public funds. This includes all benefits paid to mitigate the impact of being on a low income.

However, certain benefits are paid to meet the specific essential needs of the recipient and to help with extra living costs if they have both:

a long-term physical or mental health condition or disability
difficulty doing certain everyday tasks or getting around because of their condition

Where a benefit is paid on this basis, it should not generally be regarded as relevant income for the purposes of an income/expenditure assessment of the household. This includes the following:

Disability Living Allowance
Personal Independence Payment
Adult Disability Payment (paid by Social Security Scotland)
Child Disability Payment (paid by Social Security Scotland)
Attendance allowance
Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme
Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme

However, where there is evidence that payment of one or more of the above benefits is being used for non-essential or luxury spending unrelated to the specific essential needs of the recipient, you must consider whether it would be reasonable for this income to be taken into account when undertaking an income/expenditure assessment. This is likely to be relevant only in rare cases and you must seek senior caseworker advice before rejecting an application on this basis.

If it appears that one or more of the above benefits is being saved to the extent that there are sufficient funds to potentially provide for the living needs of the family, you must request further information to establish the purpose of the savings. Where they relate to intended purchases of non-essential or luxury items, you must consider whether it would be reasonable for this income to be taken into account when undertaking an income/expenditure assessment. This is likely to be relevant only in rare cases and you must seek senior caseworker advice before you reject an application on this basis.

If you believe a particular benefit may be being paid to meet the specific support needs of someone with a long-term health condition or disability, and it is not listed above, you should seek senior caseworker advice who may seek further advice by emailing the Family Policy team, where required.

Example scenario one

An applicant who has permission within the family life route makes a Change of Conditions application so that they can access public funds. They care for their disabled partner who receives PIP payments which are being used to meet the essential living costs of the family. There is no evidence of luxury or non-essential spending.

In this scenario, you must not consider the PIP payments as part of the wider family income as these funds are paid specifically to meet the recipient’s essential needs. If the applicant is unable to meet their essential living needs after discounting the PIP payment, you should grant the application for a change of conditions and allow the applicant access to public funds.

Example scenario two

An applicant with permission in the Hong Kong BN(O) route applies for a change of conditions. They receive PIP and their partner is in paid employment. The applicant saves the entirety of their weekly PIP payments and has a significant amount of money in their savings account.

You ask the applicant why they are saving their PIP payments. The applicant advises that they are planning a family holiday. In this scenario, you should consider the PIP payments as part of the wider family income. The payments are not being used to meet the recipient’s essential needs and are instead being saved for non-essential purposes.

Evidence of disability

Where any disability, or physical or mental health condition is raised it should be accompanied by relevant information such as confirmation or other documentary evidence from a doctor or other healthcare or social care professional. Where insufficient evidence has been provided, you must consider contacting the applicant directly to discuss how they can evidence their disability, physical or mental health condition. You must seek senior caseworker advice where you are unsure whether to contact an applicant.

If there is evidence that an applicant has special needs and may need assistance to explain their case clearly, you can signpost them to other agencies who may be able to assist, such as Citizens Advice. For details of an applicant’s local branch see: Citizens Advice.

If it is established an applicant has a particular disability, or physical or mental health condition and this means that they are unable to provide all the relevant information and evidence, you must consider applying evidential flexibility (see above).

The applicant is receiving support under the Immigration and Asylum Act 1999

Where an applicant is supported under section 95 or section 4 of the Immigration and Asylum Act 1999, they will already have been assessed as destitute. You may grant access to public funds where it is clear that there has been no change in an applicant’s underlying financial circumstances since the last assessment of destitution which would affect their eligibility for support.

Where support under section 95 or section 4 of the 1999 Act has been discontinued, an applicant will need to produce evidence of their financial position and accommodation arrangements since then.

The applicant is receiving support from a local authority

Where an applicant and their family are in receipt of support from a local authority, the local authority will have conducted its own assessment of an applicant’s circumstances. The receipt of such support will generally mean that an applicant would otherwise be destitute. This does not mean that applicants must apply to the local authority before they can qualify to have the NRPF condition lifted.

There is no requirement to reach the same conclusion as the local authority.

Where a person has been in receipt of local authority support, they will generally be considered destitute, and you should allow access to public funds. However, you must not automatically reject a request to allow access to public funds because a local authority has refused support. You may still grant a request for the NRPF condition to be lifted or not imposed where it is appropriate to do so having made a separate assessment of the evidence.

In all cases you must consider an applicant’s financial circumstances, based on the information and evidence they have provided, to determine whether they meet the criteria for being allowed access to public funds.

Question 3

Making a decision on the condition code

Accepted Answer

Where you decide that the criteria have been met for lifting or not imposing the no recourse to public funds (NRPF) condition code (condition code 1), you must apply condition code 1A which allows access to public funds.

An applicant granted access to public funds will still have to meet the relevant eligibility criteria for any welfare benefit for which they apply.

Subsequent permission applications

When an applicant who was last granted permission without the NRPF condition code or has had that condition code lifted since they were last granted permission, applies for further permission on the 10 year partner or parent route, child route or private life routes, you must assess whether they continue to meet the criteria for accessing public funds.

A previous grant of permission without the NRPF condition can be a strong indicator of ongoing need for access to public funds. However, this must not be automatic, and you must be satisfied on each occasion that the criteria are met. Although those on the 5-year partner or parent route are not entitled to public funds when they are granted permission, they can request for this restriction to be lifted during their period of permission. In cases where the NRPF condition code has been lifted for someone on the 5-year routes, their circumstances will be re-assessed when they apply for further permission and consideration must be given to whether they meet all requirements, including the relevant financial requirement.

Where someone:

applies for permission on the 5-year partner route
meets the requirements of the rules (including the financial requirement) and so could be granted permission on the 5-year route
is receiving public funds when they make their application

you must contact them to ask whether they wish to be granted permission on the 5- year partner route with no recourse to public funds or vary their application to enable them to be considered for permission on the 10-year partner route.

Grounds for refusal

You may refuse a request for access to public funds from an applicant with permission in family, private life or Hong Kong BN(O) routes where they have not provided evidence to prove that:

they are destitute
they are at risk of imminent destitution
there are reasons relating to the welfare of a child which outweigh the considerations for imposing the condition
they are facing exceptional circumstances affecting their income or expenditure

This includes where they have failed to provide reliable evidence of the availability of accommodation, provision of essential living needs, income level and outgoings, and overall financial circumstances.

You can also refuse a request where it is reasonable to conclude that the applicant has intentionally disposed of funds, for instance, by voluntarily giving or loaning funds to a third party.

Evidence of significant expenditure on non-essential items such as expensive holidays, second cars, or gambling, can be an indication that the applicant has not met the criteria for being granted access to public funds.

Question 4

Appeals

Accepted Answer

Appeals against refusal under the family or private life rules

You must refer to the rights of appeal guidance for information on appeal rights.

Where a human rights appeal is allowed and the Tribunal have found that the requirements of the relevant rules are met, you must grant the permission that the appellant qualified for under the Immigration Rules.

Where the Tribunal finds the relevant rules have not been met, but allows the human rights appeal on the basis of exceptional circumstances family life grounds, the appellant must be granted permission in accordance with paragraph GEN 3.2.(3) of Appendix FM for a period of 30 months.

In cases where an appeal has been allowed and permission granted under the following paragraphs, consideration must be given to whether the applicant meets the criteria to have the NRPF condition not imposed:

D-ECP.1.2., D-LTRP.1.2. (the 10-year partner route)
D-ECC.1.1., D-LTRC.1.1. (the child route)
ECPT.1.2. or D-LTRPT.1.2. (the 10 year parent route)
PL 9.1. (the private life route)

As above, the no recourse to public funds (NRPF) condition must not be imposed, or must be lifted if already imposed, if the applicant has provided evidence that:

they are destitute
they are at risk of imminent destitution
there are reasons relating to the welfare of a child which outweigh the considerations for imposing the condition
they are facing exceptional circumstances affecting their income or expenditure

Question 5

Access to public funds for those whose permission is not within the family, private life or Hong Kong BN(O) routes

Accepted Answer

This section of the guidance covers the discretion the Home Office has to lift the no recourse to public funds (NRPF) condition in cases that fall outside the policy on the above routes. (family, private life or Hong Kong BN(O)).

If there is another route available to consider lifting the NRPF condition, then it would be appropriate to follow that process, for example, for those with restricted leave. Discretion should only be considered if no other route is available.

When considering an application to lift the NRPF condition from a route outside the family, private life or Hong Kong BN(O) routes, you should have regard to the general policy objective, which remains the same: to maintain a firm, but fair and efficient immigration system that requires temporary migrants to generally financially support themselves and their families without recourse to public funds.

For these cases discretion will only be used where there are particularly compelling circumstances which justify giving access to public funds and lifting the NRPF condition. Occasions when discretion is used are likely to be rare. In all cases, the onus is on the applicant to provide sufficient evidence to satisfy the decision maker that the NRPF condition should be lifted. In considering whether to lift the NRPF condition where the applicant has permission on a route where the standard condition is that the person does not have access to public funds, you should consider the following:

there is a general expectation that migrants to the UK should be able to maintain and accommodate themselves and their family members without recourse to public funds
most routes require a person to demonstrate that they can financially support themselves and their family members whilst in the UK
if the person has the right to work in the UK, they should normally be expected to support themselves and their family members through work not public funds
it will normally be appropriate for a person to leave the UK if they can no longer comply with the conditions of their permission or cannot financially support themselves and their families in the UK
the best interests of a child affected by the decision on whether to lift the NRPF condition is a primary, although not the only, consideration
notwithstanding the above principles, whether there are particularly compelling circumstances which mean the NRPF condition should be lifted

The particular circumstances of each case must be considered in light of all the information and evidence provided. In determining whether there are particularly compelling circumstances, you must consider all relevant factors raised.

Where it is accepted that there are particularly compelling circumstances which mean the NRPF condition should be lifted it must also be established that at least one of the following applies:

the applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or is at risk of imminent destitution
there are reasons relating to the welfare of a relevant child which outweigh the considerations for imposing or maintaining the condition
the applicant is facing exceptional circumstances affecting their income or expenditure

For further information on a relevant child see the section on how to assess the needs of children (see above).

Considering the application

Consideration of applying discretion under this guidance must take into account the evidence, which is provided, the best interests of any child/children affected and whether there are particularly compelling circumstances.

As one of the principles is that an applicant who cannot support themselves or their family should leave the UK, a relevant factor will be whether the applicant has demonstrated that they cannot be expected to leave the UK.

If the reasons why the applicant cannot be expected to leave are linked to a risk of persecution or ill treatment on return to their home country then the appropriate action is for them to make an asylum (protection) claim, where they will normally be entitled to apply for asylum support, not for the NRPF condition to be lifted.

If evidence has not been provided to show particularly compelling circumstances or whether the best interests of the child outweighs the reasons for maintaining the NRPF condition, you should contact the applicant to ask them to provide it.

Generally, it will not be regarded as a particularly compelling circumstance where an applicant has been granted permission on the basis they can maintain themselves and their family members without access to public funds and their circumstances change and they can no longer do so, regardless of the reason. The appropriate action is for them to leave the UK. Similarly, if they have the right to work but are not earning enough to support themselves and their family, they should normally be expected to leave the UK. It will also not be regarded as a particularly compelling circumstance if the individual lacks the financial means to leave the UK, such as travel costs or a passport application fee.

Considering discretion where a child is affected by the decision

The consideration of discretion must take into account the circumstances of each case and the impact on children in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009 places an obligation on the Secretary of State to have regard to the need to safeguard and promote the welfare of children in the UK when carrying out immigration, asylum and nationality functions.

This requires consideration to be made of the best interests of the child as a primary, but not the only, consideration in decisions that have an impact on a child. This is particularly important where the decision may result in the child being destitute, where there are obvious factors that adversely affect the child, or where a parent caring for the child asks us to take particular circumstances into account. All decisions must demonstrate that the child’s best interests have been considered.

For further information on the best interests of any relevant child see the section on how to assess the needs of children (see above).

Families or children may highlight the differences in quality of education, health and wider public services and economic or social opportunities between the UK and their home country and argue that these mean that it is in the best interests of the child for them to stay in the UK. Such differences would not normally themselves be sufficiently compelling to mean the family cannot be expected to leave the UK if they are no longer able to financially support themselves in the UK. Many parents reasonably and legitimately take their children to live in other countries even though it can cause a degree of disruption.

You must make an assessment based on the individual facts of the case, taking into account the principles set out above as well as the impact of the decision on an affected child.

Considering whether an applicant can be expected to leave the UK

Circumstances in which it might be accepted that a person cannot be expected to leave the UK include:

where there are serious medical grounds which prevent the person or a dependent family member from being able to travel - in such cases medical evidence will be required to demonstrate the reasons for not being able to travel
where there are reasons why it is not reasonable to expect any dependent child to leave the UK and this outweighs the need to maintain the NRPF condition (for further information see section ‘Considering discretion in respect of those with children’)

Considering an application while a family or private life claim or application is made

As part of an application to lift the NRPF condition, an applicant may seek to rely on their family and private life in the UK.

The existence of an outstanding family or private life application or claim in itself is not a particularly compelling circumstance which warrants the lifting of the NRPF condition. For example, the applicant may be able to seek support from another family member or make a family life application from overseas (for example if in the UK as a visitor). You must therefore still apply the central test, which is whether the applicant has provided evidence of particularly compelling circumstances for the NRPF being lifted.

If a change of conditions application is submitted where the applicant has already made a valid application for permission to stay in the UK on a family or human rights route, where possible the change of conditions application should not be considered in isolation but considered alongside that application. If that application is refused and there is no extant permission (and no 3C leave) the change of conditions request will fall away as the person will be an overstayer. However, where this joint consideration is not possible, or the person still has extant permission you must consider the change of conditions request, taking into account the decision on the application.

It is not appropriate to fully assess the merits of an applicant’s family or private life claim when considering the change of conditions request. Such a decision should be taken by the specialist family/private life caseworker assessing a valid application under that route. However, it is likely to be reasonable to expect a person to leave the UK if they are here for a temporary purpose or if the whole family can leave together.

An assessment must be based on the applicant’s individual circumstances and consideration of any relevant information or evidence provided.

Considering an application while a human rights appeal is outstanding

The existence of an outstanding human rights appeal, for example based on family or private life, is not in itself a particularly compelling circumstance. If there is no further evidence of any particularly compelling circumstances, the Change of Conditions application falls to be refused.

Each case will need to be considered on a case-by-case basis and all considerations to apply discretion should be referred to a senior caseworker.

Making a decision

If the applicant has not provided evidence of particularly compelling circumstances, then you do not need to consider whether they are destitute. They are expected to leave the UK and remove themselves from any destitution they have found themselves in whilst in the UK.

If you accept there is evidence of particularly compelling circumstances, you will need to consider the application for change of conditions as set out in the section in this guidance: ‘How to assess whether the applicant is destitute’.

Cancellation of permission to enter or stay

The information provided as part of the application to lift the NRPF condition may provide information which suggests the applicant is no longer meeting the requirements of the Immigration Rules of the route they are on.

If a decision is made not to lift the NRPF condition, the case should be referred for consideration of cancellation of their permission to enter or stay. This referral should include any reasons why it is considered, as a result of the Change of Conditions application, the person may no longer meet the requirements of the Rules under which they were granted permission. A copy of the Change of Conditions application and any accompanying representations will be available on the Home Office document database.

To refer a case for cancellation of permission to be considered email the Status Review Unit.

For further information on cancellation, see: Cancellation and curtailment of permission guidance.

Future applications

A decision taken on lifting or not lifting the NRPF condition is not a decision which determines the outcome of a claim for permission on any other basis.

The decision relates only to the NRPF condition attached to their existing permission.

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