The law of humanity: Covid-19 and beyond

Covid-19 has exposed the struggles that families face meeting basic needs. Many of these issues pre-date the pandemic, however, the lockdown has imposed additional pressures; migrant communities, single-parent households and those in precarious work are particularly vulnerable.

The No Recourse to Public Funds (NRPF) condition is imposed on almost all migrants granted limited leave to remain ("LTR"). Where the condition is imposed, a person will be excluded from accessing most welfare benefits, including those designed to protect children's welfare. The NRPF policy has had severe consequences for many migrant families, and it is widely criticised for disproportionately impacting single mothers and children from minority ethnic backgrounds.

In R (W, A Child By His Litigation Friend J) v The Secretary of State for the Home Department & Another [2020] EWHC 1299 (Admin) the question for the High Court was whether the NRPF regime failed to provide protection from inhuman treatment.

The Claimant was an eight-year-old British national, whose Ghanaian mother was granted LTR subject to a condition of NRPF. Project 17, a frontline organisation assisting those subject to NRPF access support under section 17 of the Children Act 1989, was an intervener.

In W, the Claimant relied on two legal principles to argue that the state has a positive obligation to prevent destitution. This means the government has a duty to take active steps to provide assistance, rather than just refraining from breaching rights. These principles are derived from the European Convention on Human Rights (“ECHR”) and the common law. As is well established, the Human Rights Act 1998 places a duty on public authorities to act in a way that is compatible with the rights protected under the ECHR. This includes the absolute prohibition on torture or inhuman or degrading treatment or punishment under Article 3, and the positive obligations to protect. However, in W, the Claimants also relied on the obligations under the common law and the principle of the "law of humanity". This was drawn from an old case Reg. v Inhabitants of Eastbourne (1803) 3 East 103, which described the principle as follows:

“…the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving”.

Applying these principles, the High Court found that the NRPF regime as a whole failed to clearly give effect to the state’s obligation to prevent the imminent prospect of inhuman or degrading treatment without recourse to public funds. Following, W early applications to remove a NRPF condition should be allowed in order to pre-empt the risk of destitution.

The threshold for a breach of Article 3 and the law of humanity, however, has been set very high and the test will only be met where shelter, food or the basic necessities of life are denied. Despite this, whether the threshold is met is context specific. As a consequence where access to support and services is denied to children, young people and other vulnerabilities, the threshold is more easily met.

A pre-emptive law of humanity can therefore be used to protect children who are at risk of street homelessness; where living conditions may soon amount to inhuman or degrading treatment or a child is at risk of abuse, neglect or exploitation in their own home, or in a placement. In a time when children and young people face new challenges and risks, the High Court’s appeal to the law of humanity is an important reminder of the positive obligations owed by the state, and that apply regardless of legal status.

Geeta Koska is a barrister at 1MCB Chambers, working across housing, community care, immigration and public law