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

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

Fees for immigration applications continue to increase every year. Most applications for leave to remain submitted from the UK (other than under the Points Based System) cost £1,033. In addition, applicants may need to pay an Immigration Health Surcharge (usually £1,000) for an application for 2.5 years leave to remain. On average, therefore, an applicant will need to spend a bit more than £2,000 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; £610 for using a Super Priority Service to get a decision in 24 hours for those who simply cannot afford not to travel for months while the Home Office makes a decision on their application; and more to get legal representation. Legal representation is unfortunately no longer a luxury but often a necessity. The Immigration Rules are increasingly hard to navigate, and legal aid is limited almost exclusively to asylum claims and applications on the basis of domestic abuse.

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

Fortunately, case law 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. Many applicants will still incur debts or other financial hardships when applying for leave in the UK.

Background to the policy on fee waivers: case law

Two cases form the basis of Home Office policy on fee waivers. The first is R (Omar) 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.

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

The second case was R (Carter) 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 Article 8 of the European Convention on Human Rights (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 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 discretionary leave from victims of trafficking or slavery who have had a positive conclusive grounds decision, have already accrued 30 months’ discretionary leave 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 a 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 £2,389 and will in all likelihood continue to increase over 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 these cases, however, there is also a need to consider 

  • whether, if receiving accommodation and essential living needs support from family or friends, they are able to borrow the required amount for their immigration application also (but only if receiving accommodation this way). 
  • whether the applicant’s financial circumstances are likely to change – for instance, for those with the relevant leave, because of an offer of employment – 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. This does not mean discretionary items, but it does mean substantial items such as travel to special needs facilities, or expenses linked to responding to illness, or long term health conditions or disability.

How the Home Office considers applications for fee waivers

The most recent Home Office fee waiver guidance is dated 4 January 2019.

It is clear that the Home Office will only want to grant a fee waiver in very limited circumstances. Officials are instructed to look at applications very restrictively and their point of departure is 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
  • the applicant will need to provide relevant evidence of their income and expenditure so that their disposable income can be calculated. Caseworkers will need to use their judgement in assessing the applicant’s evidence of income and expenditure to determine whether this goes beyond essential living needs and can only be regarded as extravagant in relation to their circumstances and obligations, including fee payments

Therefore, the Home Office will look not only at the circumstances of the applicant, but also their friends and family.

In addition, the Home Office will look at all types of income and assets. Pages 22 and 23 of the guidance give 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 may be expected to liquidate their assets, for example “on the basis that an asset has been recently acquired or is not being used, or of any other value to the applicant, for it to be an item that counts against the grant of a fee waiver”.

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’ spending habits will be looked at to see if they have “intentionally disposed of funds”, for example by: 

  • providing support or loans to others without any detail as to how these are being applied 
  • voluntarily giving funds away to a third party 
  • paying debts before they are required to do so, or paying more in response to a debt than is required
  • buying a personal possession that is clearly not essential to their living needs or spending extravagantly 

If so, the fee waiver application may be refused.

How to submit the application and what evidence should be included

Fee waiver requests are made online, before the application for leave to remain is made.

With regards to evidence, the guidance says that

When applying for a fee waiver the applicant will be asked to provide details of their financial circumstances. This will mainly be in the form of statements covering the 6 months period prior to the date of application for all bank or building society accounts they hold, and 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 happens after the fee waiver application is submitted?

What happens after an application for a fee waiver has been considered depends on the outcome of the application.

Application is granted

If an applicant is granted a fee waiver they will be issued with a Unique Reference Number to be used when applying for leave to remain online. 

The application for leave to remain must be submitted within 10 working days of the date of the decision (not the date that the decision is received). They must then make an appointment at a Service and Support Centre within 17 working days. 

If an applicant fails to make the application within these timescales, they may need to make a new fee waiver application. If their leave has expired in the meantime, they may become an overstayer. 

Some applicants who have been granted a fee waiver may be able to also apply for travel assistance to reach their closest Service and Support Centre, including those:

• in receipt of asylum support or Local Authority support 

• Domestic Violence customers 

• a responsible adult attending an appointment with a child in social care 

• anyone where paying for travel would render them destitute 

• where travel is over 3 miles

Example

Jose is making an application to remain in the UK on the basis that he has parental responsibility for two British children. He currently has leave to remain valid until 20 January 2019. He makes an application for a fee waiver on 15 January 2019, and the application is approved on 15 February 2019. 

Jose has 10 working days to submit the application for leave to remain as a parent. If he submits the application on time, the Home Office will consider the date of application as being the date of the fee waiver application, on 15 January 2019, so that his right to remain in the UK will be extended until a decision has been made on the application for leave to remain. If Jose fails to submit the application on time, he will have become an overstayer in the UK. If he wants to remain in the UK, he will also need to make a new application for a fee waiver, as he cannot rely on the one already made.

Application is refused

The status of an applicant when their application for a fee waiver is refused 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 submit additional evidence that demonstrates they qualify for a fee waiver. If the new evidence submitted satisfies the caseworker that they are eligible for a fee waiver, their application will be granted and they will be given another 10 working days to submit the application for leave to remain. 

If the new evidence does not satisfy the caseworker that they are eligible for a fee waiver, their application will be refused and they will be given 10 working days to submit an application for leave to remain and pay the application fee. If they do not do so before their leave expires, they will become overstayers.

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

Example

Let’s take the example of Jose above. His application for a fee waiver is refused on 15 February 2019, and he is given 10 working days to submit further evidence to show that he does qualify for a fee waiver. Jose submits further evidence on 20 February 2019. In a decision of 10 March 2019, the Home Office advises Jose that it is still not satisfied that he qualifies for a fee waiver. Jose has now ten working days to submit, and pay for, an application to remain as a parent, or he will become an overstayer.

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 the 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 its 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). 

What about the Immigration Health Surcharge?

Decision-makers are now required to take into account the whole of the amount to be paid by an applicant when a fee waiver request is made. In other words, they must consider both the application fee and the Immigration Health Surcharge. 

Where an applicant can pay the whole of the immigration fee but none, or only part, of the Immigration Health Surcharge, the immigration fee will be required, and the exemption will be applied to the Immigration Health Surcharge. If the applicant is unable to pay the fee or the Immigration Health Surcharge, both will be waived.

This is a welcome change given the recent doubling of the Immigration Health Surcharge from £200 a year to £400 a year.

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 the immigration application fees are still given a chance to remain lawfully in the UK. Recent welcome changes also include the fact that it is possible to request a waiver for the Immigration Health Surcharge only (it used to be that an applicant had to pay both or none), and that less weight seems to be given to an applicant’s ability to borrow money from friends or to delay the application until they can afford the fee.

However, it is still 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. 

The fact that applications now need to be made online is very problematic, in particular for those who are destitute and may not have access to a computer. 

Ironically, fee waiver applications often seem to be 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 legal aid exceptional case funding).

This article was originally published in September 2017 and has been updated to take into account recent changes to the fee waiver policy.

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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