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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 have increased sharply in recent years. Most applications for permission to remain in the UK (other than under the Points Based Immigration System) now cost £1,033. In addition, applicants may need to pay an Immigration Health Surcharge (£624 a year for adults and £470 for children). On average, therefore, migrants will need to spend almost £2,600 to get permission to remain in the UK for the standard period of two and a half years. For human rights applications submitted from abroad, the cost can be north of £3,000.

These sums are, in fact, the very bare minimum. People may also need to pay £150 to pass an English language test. Others will stump up £800 for using the in-country Super Priority Service to get a decision in 24 hours if they simply cannot afford not to travel for months while the Home Office makes a decision on their application. The equivalent for applications outside the UK costs £956. Then there is legal representation, unfortunately no longer a luxury but often a necessity. The Immigration Rules are hard to navigate, and legal aid is limited almost exclusively to asylum claims, domestic abuse or particularly complex cases.

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

Fortunately, case law has found that it is unlawful for the Home Office 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, the Home Office has interpreted the case law in a very restrictive manner, so it is still quite difficult to qualify for a fee waiver. Many applicants will still incur debts or other financial hardship.

This article will look at when it is possible to get a fee waiver on a UK immigration application. Expected where otherwise specified, it will focus on waivers for applications made within the UK. At time of writing, the Home Office was due to update its policy on out-of-country fee waivers, so there may be more to say on that subject shortly.

Background to the policy on fee waivers: case law

Three 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 is 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.

The third case major case is R (Dzineku-Liggison & Ors) v Secretary of State for the Home Department (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC). It would not have arisen if Home Office policy had accurately reflected the previous cases. While the Home Office should have been assessing whether an applicant could afford the fee, it was instead assessing whether the applicant was destitute or would be rendered destitute by payment of the fee. The Upper Tribunal in Dzineku-Liggison had to reiterate that the correct test is affordability.

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”. Applications eligible for a fee waiver are:

  1. applications for permission to remain under the five-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 permission to remain under the five-year parent route
  3. applications for permission to remain under the ten-year partner, parent or private life route, where the applicant claims that refusal of that application for permission would breach their rights (or the rights of other people) under Article 8 of the European Convention on Human Rights
  4. applications for permission to remain on the basis of other ECHR rights, provided that human rights constitute a substantive basis of the claim
  5. applications for further permission to remain from applicants granted Discretionary Leave following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further permission 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
  7. human rights visa applications. As mentioned above, the Home Office is due to update its policy on entry clearance fee waivers, which should provide more details on who exactly is eligible.

It is possible for an applicant to pay their own fee but apply for a fee waiver for one or more dependant. It is also possible to ask for a waiver of the Immigration Health Surcharge only, and not the main application fee, if the applicant can only afford one of the two.

Importantly, applications for indefinite leave to remain, even if based on a human rights claim, are not covered. Applicants can end up extending their temporary leave forever, until they can afford the indefinite leave to remain fee. This is currently £2,389 and will in all likelihood continue to increase. In all fairness, Home Office guidance on its fee waiver policy says that

those 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 family life guidance, though, confirms that this will only be appropriate in “rare cases”.

Criteria to be granted a fee waiver

According to Home Office guidance for its caseworkers, applicants for a fee waiver will need to show that they cannot afford the fee.

More specifically, applicants will be granted a fee waiver if one of the following circumstances apply:

  1. They cannot afford the fee
  2. They are destitute
  3. They are at risk of imminent destitution
  4. Their income is not sufficient to meet a child’s particular and essential additional needs 

Previous versions of the guidance had failed to emphasise that affordability was sufficient, rather than the applicant having to be destitute or imminently destitute. This has improved in the updated version published on 5 March 2021.

The definition of destitution given in the guidance is the same as that for assessing whether asylum seekers are eligible for asylum support. Under section 95(3) of the Immigration and Asylum Act 1999, 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.

So how does the Home Office consider applications for fee waivers?

Affordability and destitution

Following on from the case of Dzineku-Liggison, the Home Office has become a lot more “lenient” when assessing fee waiver applications (put another way: it has started complying with the law). Its guidance better reflects the fact that the only valid consideration in fee waiver applications is whether an applicant can afford the application fee or not. Accordingly, the guidance says:

An applicant is considered unable to pay the fee when they do not have sufficient funds at their disposal after meeting essential living needs such as housing and food. This applies independently of whether the applicant is destitute or at risk of destitution.

Destitution or risk of destitution is still a factor, in the sense that, if an applicant is destitute or at risk of imminent destitution, then it is accepted that they cannot afford the fee. “Imminent” destitution is taken as destitution within the next three months, or where payment of the fee would lead to destitution.

For applicants who are not destitute or at risk of destitution, but who cannot afford the fee, the Home Office looks at whether applicants have a sufficient “surplus income” after meeting “essential living needs”, and/or savings, which would allow them to pay the fee. More on what this means below.

“Child’s particular… needs”

Some applicants who have children with further essential needs may be granted a fee waiver if

  1. they are unable to afford those needs due to their low income; and/or
  2. they would be unable to meet these further needs if they were to pay the application fees

For these applications, the Home Office will consider whether the child is supported by one or both parents; whether a child would be able to “enjoy or maintain full participation in school activities”; and whether the child has further needs based on a protected characteristic, such as a disability.

Assessing “surplus income”

Surplus income is understood as any income left after accommodation and essential living needs are met. Officials will consider all types of income and assets. Page 16 of the guidance gives a list. In addition to what one might expect, such as employment income and cash savings, relevant income and assets include:

income… from other family or friends…

expenditure on… cars or other vehicles [and] other personal possessions such as mobile phones or computers

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”.

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”.

Essential living needs, in turn, include “utilities, food, clothing, toiletries, non-prescription medication and household cleaning items” and “travel and communication to enable the supported persons to maintain interpersonal relationships and access a reasonable level of social, cultural and religious life”. The guidance refers to the 2017 report on review of cash allowances paid to asylum seekers for a breakdown of essential living needs. Importantly, applicants are “not expected to be purchasing these items at a cost significantly higher than what is quoted in the data”.

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
  • spending extravagantly or excessively

If so, the fee waiver application may be refused.

In other words, applicants are expected to prioritise Home Office fees and to limit their expenses to what the Home Office considers “essential”.

How to submit the application and what evidence should be included

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

With regards to evidence, the guidance makes it very clear that

the onus is on the applicant to credibly demonstrate that they qualify for a fee waiver… it remains the responsibility of the applicant to sufficiently evidence their claimed financial circumstances, or to provide a credible explanation of why such evidence is not available.

It also says:

caseworkers should normally expect to see information and evidence relating to the applicant’s income, their accommodation, the type and adequacy of accommodation, the amount of their rent/mortgage or of their contribution towards this, and their outgoings in terms of spending on things like food and utility bills. This information should be supported by independent evidence, such as their pay slips, bank statements, tenancy agreement and utility bills. The nature of the evidence provided will vary depending on the individual circumstances of the applicant, but the caseworker should expect to see evidence appropriate to the circumstances being claimed.

Applicants being supported by a charity or local authority should submit evidence from the relevant organisation confirming the nature and amount of support provided.

Of course, this is not possible for everyone, in particular those who are homeless or rely on informal support such as food banks and friends. In those cases, the guidance says that

the caseworker will need to be satisfied that the person’s circumstances are as they claim, by making an assessment of their credibility.

It also directs caseworkers to exercise evidential flexibility “in exceptional circumstances” and where “the applicant has provided clear and compelling evidence as to their circumstances and that, without a fee waiver, they will not be able to apply for leave to remain”.

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

In practice:

  1. Applicants should provide as much evidence as possible of their finances and accommodation, including the usual “official” evidence like payslips, bank statements and tenancy agreements, but also: letters from any friends and family who usually support the applicant; letters from any charities assisting the applicant; and a letter from the local authority if involved. These should cover the six months prior to the application.
  2. Applicants who have little or no evidence may want to provide a statement setting out how they support themselves, including where they live and how they meet their essential living needs such as food and clothes.
  3. A table setting out the applicant’s sources of income and details of their expenditure will also be useful, highlighting that the surplus income is less than the application fees.
  4. Any “unusual” expense — i.e. anything not included in the list of essential needs above, or which is much higher than the Home Office would expect (on the basis of the report on asylum seeker allowance mentioned above) should be explained.
  5. Where “official” evidence such as bank statements is missing, applicants should set out why it is not available.

What happens after the fee waiver application is submitted?

Application is granted

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

The application for permission to remain must then be submitted within ten working days. The Home Office guidance suggests that this is ten working days from the date of the fee waiver decision, but paragraph 34 of the Immigration Rules makes clear that it is ten days from the “receipt” of the decision. Nowadays, the date of decision and the date of receipt are usually the same, as decisions are sent by email.

The person must then make an appointment at a Service and Support Centre within 17 working days. (At present this final step can be different due to Covid-19; the Home Office might instead ask applicants to upload their evidence online.)

If the 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 

• customers who have experienced domestic abuse

• 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 2021. He makes an application for a fee waiver on 15 January 2021, and the application is approved on 15 February 2021. 

Jose has ten 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 2021, 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 ten 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 ten 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 ten 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 2021, and he is given ten working days to submit further evidence to show that he does qualify for a fee waiver. Jose submits further evidence on 20 February 2021. In a decision of 10 March 2021, 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). 

How good is the policy?

There is no doubt that since I wrote the original version of this article in late 2017, the policy has significantly improved, in no small part thanks to the case of Dzineku-Liggison. Fee waivers are now more than a fanciful option which many didn’t consider at all.

The policy now makes it clear that the only consideration for caseworkers is whether applicants can afford a fee. This has been reflected in practice, with many more granted fee waivers than in the past. It is also good to see that applicants are no longer asked about their ability to borrow money from friends, or to delay the application until they can afford the fee.

The application process, though, can still be improved. First and foremost, applicants still have to go through the demeaning and undignified process of explaining and justifying all their expenditures. That what many would consider well-deserved “treats”, like Christmas presents or a fancy dinner out, can be labelled as “extravagant” says a lot about the Home Office’s continued attitude towards migrants.

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

The sheer volume of evidence and explanation required also means that, ironically, fee waiver applications can 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).

Lastly, the Home Office must urgently amend the online application form, which still refers to the destitution test rather than the affordability test. Applicants without a lawyer, in particular, may be put off by that and think they may need to pay the fee if they are not destitute or at risk of destitution.

Overall, though, recent changes have been positive all round. I just hope that the next time I am amending this post, it will be to confirm that we now have a lawful policy for entry clearance fee waivers as well.

This article was originally published in September 2017 and has been updated so that is correct as of the new date of publication shown.

Nath is an immigration solicitor and Senior Caseworker at Islington Law Centre. She is also a co-convenor of the ILPA Family and Personal Migration Working Group and a trustee of JCWI. She tweets: @NathGbikpi.