04 Sep Following threat of judicial review the government has agreed to continue the extension of Free School Meals for families with No Recourse to Public Funds whilst it considers a permanent change to the eligibility criteria

Thousands of children in the UK have already benefited from the temporary extension of FSM to families with NRPF following our earlier legal action, but the government had refused to make this change permanent. In this latest challenge we alleged that the eligibility criteria for FSM in primary legislation was discriminatory and incompatible with human rights legislation and should be permanently changed. In response to our Letter Before Claim the government has now agreed to review the eligibility criteria and continue the temporary extension pending the conclusion of this review.

This is a significant development in the campaign to permanently extend free school meals to pupils from low-income migrant families with no recourse to public funds. It is a step in the right direction and marks an early victory for children rights campaigners and, most importantly, children who have gone hungry because of their parent(s)’ immigration status.

The claim is being brought by three children that have been excluded from free school meals because their mothers are unable to claim welfare benefits. Our judicial review pre-action letter argued that the exclusion of our clients, and the many thousands in their position, discriminates against children on the basis of their parents’ immigration status and disproportionately affects children from Black and Ethnic Minority backgrounds and therefore breaches their human rights.

Our threat of legal action followed calls from over 60 organisations, led by the Children’s Society, to the Secretary of State for Education to permanently extend free school meals to poor children of migrant families. The announced review builds upon our threat of judicial review earlier this year which led to the government temporarily agreeing to extend free school meals to thousands of children in the position of our clients during the Covid-19 pandemic.

To be clear, we may still have to bring legal action if the government’s review does not fully address the exclusion of our clients from free school meals, but we are tentatively optimistic that the review, which includes consideration of the future of the extension and any income threshold, will finally bring an end to the discriminatory nature of the current eligibility criteria for free school meals.

Rachel Etheridge, Associate Solicitor at MG&Co, who acts for the Claimants, says:

“The coronavirus crisis has highlighted the inequalities that exist in the UK. It is unacceptable that children from deprived backgrounds, many of whom will be British citizens or spent their entire lives here, should be left to go hungry simply because their parents are migrants to the UK. The government has gone some way to addressing this issue through the temporary extension to FSM, which followed our earlier proposed claims for judicial review, and we hope the government will now do the right thing and make that change permanent”.

Clare Jennings of MG&Co who acts for the Claimants says:

“For years now thousands of children in some of the most deprived families have been excluded from free school meals due to their parent(s)’ immigration status. We believe that an eligibility criteria that means disadvantaged children go hungry just because of the immigration status of their parent is discriminatory, breaches human rights and needs to be changed. We are therefore delighted that the temporary extension following our earlier proposed claims for judicial review is to continue for now whilst the government conducts its review. We call on the government to demonstrate their commitment to lifting children out of food poverty by permanently changing the eligibility criteria for FSM”.

Notes to editors

1. The eligibility criteria for FSM is set out in section 512ZB of the Education Act 1996 and requires a parent to claim specified welfare benefits.

2. Changes to the immigration rules and to the eligibility criteria for welfare benefits has meant that many parents lawfully in the UK (including those of British children) cannot claim the prescribed benefits. Consequently their children are not entitled to free school meals. Children whose parents are undocumented are also affected.

3. As the criteria is set out in primary legislation the Claimants will be seeking a declaration that the legislation is incompatible with the Human Rights Act 1998, and specifically, Article 14 of the ECHR, read with Articles 3, 8 and Article 2, Protocol 1 of the ECHR.

4. The Claimants are represented by Rachel Etheridge and Clare Jennings of MG&Co and Julia Smyth and David Blundell QC of Landmark Chambers.

5. For further information please contact Rachel Etheridge or Clare Jennings on 0208 445 9268 or by email rachel@matthewgold.co.uk and clare@matthewgold.co.uk.