Destitution Policy for Immigration Application Fees Deemed Unlawful

A judgment by the Upper Tribunal (Immigration and Asylum Chamber) in Liggison v Secretary of State for the Home Department JR/2249/2019, has concluded that the Home Office's immigration policy on waiving the application fee for destitute immigrants is unlawful. The case centered around a family of Ghanaian nationals who were previously refused a fee waiver for their indefinite leave to remain (ILR) application based on Article 8 ECHR grounds (i.e. human rights). The fee being charged was £7,665, which included the immigration Health surcharge. At the time of the application for ILR, the family's legal representatives, the Refugee and Migrant Forum of Essex and London (RAMEL) included a fee waiver application letter, which stated:

"it is submitted that there is no prospect of the family raising the funds for this application - £7665 with the Immigration Health Surcharge – within the foreseeable future, ie 12 months and on this basis a fee waiver should be granted. Account statements for all bank accounts held by the family, as well as credit cards held by our client, are enclosed. Our client has a savings account and an ISA with Barclays, but she does not receive statements for these accounts. However, her current account statements show that the balance for her savings account has remained consistently at £0.00 whilst the ISA's balance stands at £0.01. It is clear that our client and her partner have no meaningful income, and it is repeated that there is no "prospect of them raising the funds for this application. In summary, it is submitted that our client qualifies for a fee waiver due to her inability to raise the funds for this application".

In January 2019, the Secretary of State for The Home Department refused the fee waiver application based on the conclusion that while the family could prove they could not afford to pay the fees, they could not prove that they would be made destitute.

Affordability vs destitution

In the Upper Tribunal hearing which took place in May 2020, the applicants submitted that the "refusal of the fee waiver application was unlawful and that the respondent's extant published policy on such applications – Fee Waiver: Human Rights-based and other specified applications, version 3.0 (dated 4 January 2019) - is itself unlawful". In making his judgment, Judge Blundell focuses heavily on the Secretary of State for The Home Department's (the Respondent) interest in whether the family is currently or will be made destitute by paying the application fees rather than whether they can afford to pay. More crucially, however, he concludes that the policy and its guidance are unlawful. There are several reasons why he draws this conclusion, including the policy:

• does not provide an underlying test of affordability
• refers to the need to find 'exceptional circumstances' in relation to the ability to pay – however, many who cannot afford to pay may not necessarily have exceptional circumstances
• the policy guidance is dominated by questions of 'destitution', leaving the core matter of affordability to be obscured - as established in R (Omar) v SSHD [2012] EWHC 3448 (Admin) and R (Carter) v SSHD [2014] EWHC 2603 (Admin), the test of 'affordability' which should have been applied when considering a fee waiver is "whether the applicant can afford to pay the fee; "The guidance is not consistent with the affordability test which emerges from Omar and Carter and which is agreed to be the correct test".

Is the human rights application itself a breach of human rights?

Another key question which arose in the Upper Tribunal case was whether applicants with a valid human rights case and who have attempted to regularise their position may be left in a 'half-world' or 'limbo' state if they are forced to wait for a decision by the Secretary Of State For The Home Department because they don't meet the criteria for a fee waiver. This is because applications with the correct form and fee are likely to be processed in a timely manner, but those that do not may face a significant wait.

While the Home Office provides a 'safety net', which means even if an application for leave to remain based on human rights grounds is not 'effective', and hence the case will still be considered before the applicants are required to leave (in large part because the Secretary Of State For The Home Department has a statutory obligation to safeguard and promote the welfare of children), the family would, in the intervening period be "confined to a hostile environment". In other words, the family may face an indeterminate wait for a decision on their case, which would not be in the best interests of the welfare of the family or the children.

On this matter, Judge Blundell stated robustly, "it is difficult to see how that the Respondent can be said to have regard to her statutory obligation to safeguard and promote the welfare of children when children such as the third, fourth and fifth applicants are confined to the hostile environment as a result of the Respondent's adoption and application of a fee waiver policy which fails to reflect the affordability test properly or at all. I recognise, as did Mr. Mackenzie, that the children have existed in that environment for some years, as a result of the decision made by the first and second applicants to overstay and found a family whilst in the UK unlawfully. But their parents subsequently made an application to regularise their position in the UK and were entitled to consideration of that application at public expense if they were genuinely unable to afford the requisite fee. It is the erection of an improper obstacle to that consideration, in the form of an unlawful policy, which means that the children are not entitled to consideration of their applications' forthwith' and must instead wait for consideration of their human rights claims in the fulness of time".

Final words

This Home Office has already been granted permission to apply to the Court of Appeal. If the decision made by the Tribunal is ultimately upheld - that the fee waiver policy is unlawful - this will raise questions regarding how many have had their application refused in the past, or who have paid application fees but didn't need to. We will keep you updated as a matter of progress.