Briefing note (2): Secretary of State for Education further extends early years nursery to children whose parents have “no recourse to public funds” due to their immigration status

MG&Co’s clients have successfully settled court proceedings challenging their exclusion from the early years nursery scheme on the grounds that the exclusion amounted to discrimination on the basis of race and nationality and was contrary to the scheme’s statutory purpose of benefiting the poorest children in society.

About early nursery scheme

In 2014 the government announced funding for a ‘fairness premium’ which entitled all disadvantaged 2-year-olds to 15 hours per week of free pre-school education. The scheme aimed  to narrow the gap in achievement between children from economically deprived backgrounds and their more affluent peers.

In practice, however, the eligibility criteria excluded many of the poorest children in the UK whose parent(s)’ immigration status mean they cannot claim means tested welfare benefits, which is a trigger for entitlement. This in turn disproportionately impacted

About the case

We represented a 2 year old who was born in the UK and is a “child in need” in receipt of support and accommodation from his local authority under section 17 of the Children Act 1989. Without this help, he would be destitute and street homeless because his mother had no alternative source of support, as she was prohibited from working or claiming benefits due to her being in the UK without leave at the time of the claim.

With only limited financial support being provided to the family, our client was growing up amongst the very poorest households in the UK. Nevertheless, by virtue of our client’s mother being unable to claim benefits, he was excluded from a free early nursery place despite the fact that his mother had significantly less income than the parents of children who were eligible for such a place.

Last year, following another successful court challenge, the Government extended the free nursery places to 2-year-olds from NRPF households whose parents would meet the financial criteria to claim welfare benefits, when the parents have leave to remain under Article 8 human rights grounds or because they are a Zambrano carer (i.e. a primary carer of a British child). However, our clients and the wider group they represented remained ineligible.

The Government’s concession

Following issuance of court proceedings in May 2020, the Government has finally agreed to extend the scheme to 2 year olds whose parents have NRPF as a result of being undocumented/ here without leave and who receive support from their local authority under s.17 of the Children Act 1989, provided that they meet the usual economic criteria.

For further information about the challenge please contact Rachel Etheridge or Clare Jennings.

David Blundell QC and Julia Smyth of Landmark Chambers act as counsel.

The final order can be accessed here:  final sealed order