Strategic Litigation

Project 17 is committed to ending destitution among migrant families through providing advice, advocacy and support for individuals to improve their access to support from local authorities. 

However, often individual advocacy is not enough where policies and laws prevent families from being able to access the support they need in order to meet their essential living needs and to safeguard the wellbeing of the children in these families. In these instances we engage in strategic litigation to address these underlying wrongs. 

What is strategic litigation? 

“Strategic litigation has been defined in different ways, for example: “Litigation means taking cases to court. Strategic litigation is a method that can bring about significant changes in the law, practice or public awareness via taking carefully-selected cases to court. The clients involved in strategic litigation have been victims of [wrongs] that are suffered by many other people. In this way, strategic litigation focuses on an individual case in order to bring about social change”.  (Mental Disability Advocacy Centre: http://mdac.info/en/what-wedo/strategic_litigation) 

A typical feature of strategic litigation is that cases are brought by individuals to test a legal point that also applies to cases other than just their own. The aims of strategic litigation involve more than simply winning legal arguments in court: strategies might seek to create awareness and publicise the cause for which the strategy is mobilised, encourage public debate, set important precedents, achieve change for people in similar situations, and spark policy changes.” (from the Public Law Project’s Guide to Strategic Litigation)

Why engage in strategic litigation?

Project 17 works with legal representatives to identify suitable clients for strategic litigation, identify policies, guidance or practice which we feel may be unlawful, to provide witness statements in ongoing legal actions or to act as an intervener in ongoing challenges. 

Strategic litigation is a last resort, involves considerable work (and potential financial costs) for the charity and potential stress for the person bringing the challenges. Therefore, it is not something we engage in lightly. However, it has considerable potential to lead to legal and policy changes which affect and benefit many of the people we work with. This is why Project 17 does not hesitate to get involved in strategic litigation when necessary. 

Project 17 has also contributed to the Immigration Law Practitioner’s Associations ‘Introduction to Strategic Litigation” training to help educate other charities about how to build successful strategic litigation and to address some of the concerns other may have in engaging with this approach to systemic change - https://ilpa.org.uk/introduction-to-strategic-litigation/

Examples of strategic litigation supported by Project 17 that helped forge social change:

• Contributed to challenge to extend entitlement to 15 hour free nursery places to everyone, subject to a maximum income threshold, regardless of immigration status. 
• Contributed to a challenge dealing with Change of Condition application by someone on the student dependent route. The challenge forced an important concession from the Home Office that people on all visa routes could be considered for a Change of Condition application however it also severely limited the application of this ruling by stipulating that “where an applicant, or their dependent children, can reasonably be expected to return to their home country the expectation is that they should do so - particularly compelling circumstances will need to be established to require the NRPF condition to be lifted.
• Contributed to a challenge of Zambrano careers from leave under the EU settlement scheme. The courts found the guidance to be unlawful and order the Home Secretary to amend the guidance. The case has gone many rounds in the courts, more details here.
• Acted as an intervener in a challenge to Home Office guidance which stipulated that people with a no recourse to public funds condition needed to demonstrate destitution before they could make a change of condition application to have the NRPF condition lifted. The court found that this policy was unlawful and should be amended to ensure that those who are at risk of destitution are also able to access public funds. This does not go far enough but it is a start. 
• Contributed to challenge which extended the Healthy Start vouchers to those who are subject to No Recourse to Public Funds (both those with leave to remain with a NRPF condition and those who do not yet have immigration status) are also entitled if they have a British child under four and are on a low income.  Healthy Start is a scheme that allows families who have a child under four years old and who are on a low income to buy fruit, vegetables, cow’s milk, formula milk (stage one) and pulses. 
• Contributed to challenge that was instrumental in the extension of free school meals to all families with No Recourse to Public Funds regardless of their immigration status as long as they can show that their income is below the threshold.  
• Contributed to challenge which enabled schools to claim pupil premium for all children who are in receipt of Free School Meals. The pupil premium is a sum of money given to a school by the Government which they can use in a number of ways to improve the educational attainment of pupils who are disadvantaged – now including children with NRPF if they are in receipt of free school meals. 
• Brought challenge to Lewisham’s Robust Front Door policy which embedded considerable gatekeeping practices in Lewisham Councils approach to eligibility for support under section 17 of the Children’s Act 1989. Litigation resulted in a reversal of this policy and to improving support for eligible families with NRPF living in Lewisham.