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Fee waiver policy: who qualifies and what does the Home Office policy say?

Fee waiver policy: who qualifies and what does the Home Office policy say?

Fees for immigration applications continue to increase every year. Most applications for leave to remain submitted from the UK (other than under the Point Based System) cost £993. In addition, applicants may need to pay an Immigration Health Surcharge (usually £500). On average, therefore, an applicant will need to spend almost £1500 to get leave to remain in the UK.

This is, in fact, the very bare minimum. One may also need to pay £150 to pass an English language test for applications where there is an English language requirement; £590 for the Premium Service Centre for those who simply cannot leave their passport with the Home Office for months; and more to get legal representation. Legal representation is unfortunately no longer a luxury but often a necessity, with Immigration Rules being increasingly harder to navigate, and legal aid being limited to almost exclusively asylum claims and applications on the basis of domestic violence.

Unsurprisingly, not everyone can afford the fees to regularise their immigration status or renew their leave to remain in the UK.

Fortunately, caselaw has found that it was unlawful for the Secretary of State to charge a fee for a human rights based application where the applicant cannot afford the fee. Unfortunately, as will be clear from this post, it is still very difficult to qualify for a fee waiver, so that many applicants may still incur debts or other financial hardships when applying for leave in the UK.

Background to the policy on fee waivers: caselaw

Two cases were at the basis of the Home Office policy on fee waivers. The first is Omar, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin). The High Court found that:

The Secretary of State, as a public official, is under a duty to make and interpret rules in the light of section 3 of the Human Rights Act. The requirement in regulations 6 and 30 of the 2010 Fees Regulations that, in this class of case, a fee must be paid, there is no provision for waiver and an application without a fee “is not validly made” must, in the light of section 3, be read subject to a qualification that the specified fee is not due where to require it to be paid would be incompatible with a person’s Convention rights [82].

In other words, charging a fee for a human rights based immigration application will itself breach human rights law where the individual concerned cannot afford the fee.

The second case was Carter, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin)There, Mr Justice Stewart stated that

if a person demonstrates upon proper proof that they cannot pay the fee, then a policy which does not provide for waiver in those circumstances is incompatible with a Convention right [26].

In other words, the Secretary of State must agree to waive the fee when an applicant is unable to afford the fee and has a human rights claim.

Who can qualify for a fee waiver

In accordance with the above case law, only those who raise a human right claim will be eligible for a fee waiver, and only where this human rights claim “constitutes a substantive basis of their application”. More particularly, the following groups can qualify:

  1. applications for leave to remain under the 5-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance
  2. applications for leave to remain under the 5-year parent route
  3. applications for leave to remain under the 10-year partner, parent or private life route, where the applicant claims that refusal of that application for leave to remain would breach their rights (or the rights of other specified persons) under ECHR Article 8 (the right to respect for private and family life)
  4. applications for leave to remain on the basis of other ECHR rights
  5. applications for further leave to remain from applicants granted discretionary leave (DL) following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further leave to remain would breach their ECHR rights
  6. applications for further DL from victims of trafficking or slavery who have had a positive conclusive grounds decision from a competent authority of the national referral mechanism (NRM), have already accrued 30 months’ DL and are seeking to extend it for reasons related to trafficking or slavery

It is possible for an applicant to pay for their fee but apply for a fee waiver for one or more dependant.

Importantly, applications for indefinite leave to remain, even if based on human rights claim, are not covered. Applicants could be extending their leave forever, until they can afford to pay the Indefinite Leave to Remain fee. This is currently £2297 and will in all likelihood continue to increase with the years. In all fairness, the Home Office policy guidance says

applicants who make an application for limited leave to remain may request a longer period of limited leave than would normally be granted, or ILR, and where full reasons are provided for why this is appropriate in their case, this will be considered. Guidance on when a longer period of limited leave, or ILR, might be appropriate is available in the Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family life (as a partner or parent) and private life: 10-year routes.

That guidance, though, confirms that this will only rarely be appropriate:

there may be rare cases in which a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period (or ILR).

Criteria to be granted a fee waiver

Applicants for a fee waiver will need to show that one of the following three circumstances apply:

1. They are destitute

Applicants are considered destitute when

  1. They do not have adequate accommodation or any means of obtaining it; or
  2. They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

2. They would be rendered destitute by payment of the fee

This route is for those who are not destitute at the time of the application, and have adequate accommodation and can meet their other essential living needs, but have no disposable income.

In both these cases, however, these applicants will also need to show that

without compromising their ability to accommodate themselves adequately or meet their other essential living needs
o they are unable to borrow the required amount from family or friends and
o there is no basis for believing that the applicant’s financial circumstances are likely to change within a reasonable period (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time)

3. There are exceptional circumstances

The guidance says very little on what are considered exceptional circumstances, except by giving this example:

where the applicant is not destitute and would not be rendered destitute by paying the fee but cannot afford to pay it because they need to spend the money on essential child welfare needs, because of their child’s illness or disability

How do the Home Office consider applications for fee waivers

On 18 August 2017, the Home Office published its first guidance on the circumstances in which applicants may qualify for a fee waiver (this was published again on 31 August with very minor changes).

It is clear that the Home Office will only want to grant a fee waiver in very limited circumstances. They are instructed to look at applications very restrictively and their point of departure is clearly always that an applicant should be able to afford the fee. In particular, the guidance says

In considering whether an applicant qualifies for a fee waiver on the basis of destitution, the caseworker should have in mind that:

  • Those who already have limited leave to remain will normally be entitled to work in the UK.
  • Where the applicant is applying for the 10-year partner route, their partner will be a British Citizen or settled in the UK and will have access to work and to any public funds for which they qualify. It is therefore unlikely that the applicant will be destitute.
  • Where the applicant is applying for the private life route, they will generally have lived in the UK for a significant period. To show that they are currently destitute the applicant will have to explain how they have previously supported themselves in the UK and why their previous means of support are no longer available to them
  • If a person has been without any formal or obvious means of support (such as income from employment or local authority support) for a prolonged period, it may be reasonable for the caseworker to assume that the person has had, and may continue to have, access to an alternative form of support (for example, income from overseas or from a relative or friend), unless the applicant provides evidence that this is not the case or that their circumstances have changed and that they are now without any means of support

Therefore, the Home Office will look not only at the circumstance of the applicant, but also their friends and family. Applicants are expected to borrow money from their friends and family before applying for a fee waiver.

In addition, the Home Office will look at all types of income and assets. Page 20 of the guidance gives a list of all the relevant income and assets, including

  • income […]from other family or friends
  • cars or other vehicles
  • other personal possessions, such as mobile phones, computers

Applicants will be expected to liquidate their assets whenever possible.

Income from unlawful employment is also to be taken into consideration, although “The applicant should be informed that they may be committing a criminal offence and should stop working immediately”.

Finally, applicants may be asked to save for the money during a “reasonable amount of time”. This “reasonable period” does not apply to those who are already overstayers or whose leave will expire within 28 days. In other words, an applicant will not be expected to make him or herself an overstayer to save the money for the fees.

What evidence should applicants submit

The introduction to the guidance says that

When applying for a fee waiver the applicant will be asked to provide full details of their financial circumstances, including statements covering the 6 month period prior to the date of application for any bank or building society account they hold. They must also provide a full breakdown of their monthly income and expenditure at the time of application.

Of course, this is not possible for everyone; many do not have bank accounts in the first place, for example because they are homeless or because they simply cannot open a bank account because they are overstayers.

The guidance makes provision for those who do not have this evidence.

If the applicant is being supported by family or friends, a local authority or a registered charity, the caseworker should expect to see corroborating documentary evidence confirming provision of support and detailing the nature and amount of the support provided.

Importantly, in all cases, evidence must be up-to-date.

In practice, applicants should provide as much evidence as possible of their finances and accommodation, including the “usual” payslips and bank statements, but also letters from any friends and family setting out why they cannot help with the fees (ideally corroborated by evidence of their own finances); and letters from charities assisting the applicant; a letter from the Local Authority if involved. A table setting out the applicant’s sources of income and details of their expenditure will also be useful.

What if the application for a fee waiver is refused?

The application for a fee waiver is not a stand alone application; it is made at the same time as the application for leave to remain. Applicants will need to check “fee exemption” on the payment page of the application form, and complete and attach form Appendix 1: request for fee waiver.

The Home Office will only go on to consider the application for leave itself once they are satisfied that the applicant qualifies for a fee waiver. So what happens if they are not satisfied? This depends on whether the applicant had valid leave at the time of the application.

Applicants who had valid leave at the time of the application will be advised that they do not qualify for a fee waiver and be given 10 working days to “validate” their application by submitting the fee or additional evidence to demonstrate that they qualify for a fee waiver.

If the applicant provides further evidence within 10 working days but this does not demonstrate that they qualify for a fee waiver, the application should be rejected as invalid. In other words, an applicant is given one chance to submit more evidence but, if not yet satisfying the Home Office that they are eligible, they will be making themselves overstayers.

If the applicant had no valid leave at the date of application, their application will simply be rejected as invalid, and they will need to submit a new application with the fee or with a new application for a fee waiver.

Applicants should also be wary of submitting false or incomplete information with their applications for a fee waiver, as this will impact not only the application for a fee waiver but also the application for leave to remain itself. The guidance states that

Applicants who fail to disclose their financial circumstances in full, or who provide false information in their fee waiver application, may have current or future applications for leave to enter or remain refused because of their conduct (see General grounds for refusal guidance). They may also be referred for enforcement action, resulting in possible arrest and removal.

The guidance further confirms that the Home Office may undertake their own checks regarding the applicant’s finances:

Checks may be undertaken with agencies such as HM Revenue & Customs, the Department for Work and Pensions and Equifax to verify information provided by the applicant with regard to their income and finances (see Document Verification guidance). In addition, unannounced home visits may be undertaken to verify information provided by an applicant with regard to their accommodation and assets

What about the Immigration Health Surcharge

The guidance itself does not mention the Immigration Health Surcharge, however Appendix 1 makes it clear that

You should not pay the Immigration Health Surcharge (IHS) if you are applying for a fee waiver. Applicants who are granted a fee waiver are not required to pay the IHS.

How good is the policy?

One must welcome the fact that it is possible to apply for a fee waiver, so that those who cannot afford paying for their immigration application fees are still given a chance to remain lawfully in the UK.

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However, it is clear that the Home Office will only grant fee waivers in very limited cases. Only those who raise human rights claim will be eligible, and only if they can prove, with substantive evidence, that they are destitute, will be rendered destitute by payment of the fee, or exceptional circumstances apply. Even then, they will need to prove that they have no family or friends who could help with the payment of the fee, and that they could not have saved for the fee prior to making the application.

Ironically, these applications seem to be often so complex that applicants may need to pay for a legal representative to help them prepare the application (unless they can find someone to assist pro bono, or manage to obtain exceptional case funding).

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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