- Background to the policy on fee waivers: case law
- Who can qualify for a fee waiver?
- Criteria to be granted a fee waiver
- So how does the Home Office consider applications for fee waivers?
- How to submit the application and what evidence should be included
- What happens after the fee waiver application is submitted?
- How good is the policy?
Fees for immigration applications have increased sharply in recent years. Most applications for leave to remain submitted from the UK (other than under the Points Based System) now cost £1,033. In addition, applicants may need to pay an Immigration Health Surcharge (usually £1,000, due to rise to £1,560 in October) for an application for two and a half 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 (rising to £2,500 in a matter of months with the planned surcharge increase).
This is, in fact, the very bare minimum. One may also need to pay £150 to pass an English language test; £800 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 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 hardships when applying for leave in the UK.
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  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  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 .
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)  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 wee waiver are:
- applications for leave 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
- applications for leave to remain under the five-year parent route
- applications for leave to remain under the ten-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
- applications for leave to remain on the basis of other ECHR rights, provided that human rights constitute a substantive basis of the claim
- 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
- 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 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
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 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 one of the following circumstances apply:
- They cannot afford the fee
- They are destitute
- They are at risk of imminent destitution
- Their income is not sufficient to meet a child’s particular and additional needs
- They are faced with exceptional financial circumstances
This is all well and good — in particular the fact that the guidance now mentions the “affordability test”. Prior to Dzineku-Liggison, only (2), (3) and (5) above were mentioned in the policy.
Unfortunately, later sections of the guidance reflect the Home Office’s previous (unlawful) position. For example, it states that the test is all about destitution:
The assessment itself is against the circumstance of destitution, or its likelihood if required to pay the fee, as set out in the qualifying section above.
In addition, the affordability test is only discussed in the context of exceptional circumstances:
Although a fee waiver will not normally be granted where evidence of destitution is not provided, or where an applicant cannot show that they would be rendered destitute by paying the fee, there may be exceptional circumstances affecting the applicant’s expenditure which mean that a fee waiver should be granted. Exceptional circumstances at this point relates only to the applicant’s financial circumstances and their ability to pay the application fee. For instance, if the applicant is not destitute and would not be rendered destitute by paying the fee but cannot afford to pay it because, in relation to their income, they incur significant additional expenditure to provide for a child’s well-being needs.
There is also no explanation of how the Home Office will assess whether an applicant can or cannot afford the application fees. See the thread below by Alasdair Mackenzie for further discussion of issues with the policy.
OK, Home Office fee waivers, for people applying to stay for family/private life reasons. As @JulianBild flags up, there’s new guidance out & it kind of illustrates the @ukhomeoffice’s attitude when they’re told they’ve broken the law. 1/@Saul_Stone1 @DoughtyStImm @DLPublicLaw https://t.co/TrJMCT1Aox— Alasdair Mackenzie (@AlasdairMack66) June 19, 2020
One can only hope that the next version of the guidance will more accurately reflect the affordability test.
So how does the Home Office consider applications for fee waivers?
As mentioned above, the most recent version of the fee waiver policy (dated 18 June 2020) continues to be very restrictive.
It is clear that the Home Office only wants to grant a fee waiver in very limited circumstances. Officials are instructed to look at applications very restrictively and their point of departure seems to be that an applicant should be able to afford the fee. The guidance still does not set out how caseworkers should assess whether an applicant can afford the fee, but rather focuses on circumstances where the applicant claims destitution or that there are exceptional circumstances. 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. There should normally be evidence of working, or seeking employment, or reasons why this is not possible
• where the applicant is applying for leave under 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. In these circumstances the applicant should provide an explanation of why their partner’s income is insufficient to be able to support them
• 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 paymentsPages 18/19
As this shows, the Home Office will look not only at the financial circumstances of the applicant, but also of their friends and family.
In addition, officials will consider all types of income and assets. Pages 21 to 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 or 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 makes it very clear that
It is the responsibility of the applicant to fully evidence their claimed financial circumstances, or to provide a credible explanation of why such evidence is not available.
It also says:
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.
Where the applicant states that relevant documentary evidence cannot be provided, for example where an applicant is street homeless, the caseworker will need to be satisfied that the person’s circumstances are as they claim, by making an assessment of their credibility
There is also a part about “evidential flexibility” (a welcome recent addition):
Situations in which the decision maker may be flexible in requiring further additional evidence are as follows:
• the applicant is a single parent and restricted in seeking and taking employment due to the need to look after children (this includes both pre-school children and children who can no longer attend a school due to COVID-19 restrictions)
• cases where eviction notices have been issued, or eviction has actually taken place
• cases where family, friends, or an identifiable organisation is providing essential living needs, e.g. a charity or food bank, and the applicant has no other means of being provided with essential living needs
• the applicant is the parent or main guardian of a child who is not attending school because of COVID-19 concerns
• there is evidence of vulnerability related to pregnancy, a long-term health condition, disability, or mental illness – this includes dependants as well as the applicant
If the applicant is being supported by family or friends, a local authority or a charity, the caseworker will 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 who usually support the applicant setting out why they cannot help with the fees (ideally corroborated by evidence of their own finances); letters from any charities assisting the applicant; and 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. Any “unusual” expense should be explained; and, 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 leave to remain online.
The application for leave to remain must be submitted within ten working days of the date of the decision (not the date that the decision is received). The person must then make an appointment at a Service and Support Centre within 17 working days.
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
• 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
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.
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 the separate document verification guidance).
How good is the policy?
One must welcome the fact that it is possible to apply for a fee waiver. Those who cannot afford the immigration application fees are still given a chance to remain lawfully in the UK. Positive 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, even the most recent version of the policy is disappointing. It missed the opportunity to make it clear that applicants who cannot afford the fee, whether or not they are destitute or at risk of destitution, are eligible for a fee waiver. Regardless of what the guidance says, that is the correct legal test and applicants who cannot afford the fee should apply on that basis. But the guidance will no doubt put some applicants off and lead caseworkers to make unlawful fee waiver refusals.
The fact that applications need to be made online is also 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 so that is correct as of the new date of publication shown.