England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/12/2011

Mr Justice Sales :

1. This is an application for judicial review of a decision of the Secretary of State for the Home Department ("the Secretary of State"), acting by the UK Border Agency ("UKBA"), refusing to waive the fee for an application for entry clearance for settlement in the United Kingdom to be made by the Claimant. The Claimant is a child of Somalian nationality who has fled that country and is currently in Addis Ababa in Ethiopia. Members of the Claimant's family are present in the United Kingdom: his sister ("Ms S"), his father ("Mr S senior") and his brother ("Mr H"). They (in particular Ms S) wish to sponsor his application for entry clearance to come here, but they are living on state benefits and maintain that they lack the resources to pay the application fee.

The age of the Claimant

2. The evidence regarding the age of the Claimant was, regrettably, murky. When Ms S made her asylum application in 2002, described below, although she could give only a rough indication of when her parents were born she provided precise birth dates for each of Mr H and the Claimant on her asylum application self-completion questionnaire. She said that the Claimant was born on 15 May 1994. That would make the Claimant 17 years old today.
3. In correspondence from the Claimant's solicitors from 2009 in connection with the present claim, however, they gave his date of birth as 15 May 1996. That is also the date of birth given in the entry clearance application form prepared for the Claimant but not signed by him. This would make him 15 years old. His Counsel, Mr Armstrong, maintained that this is his correct age.
4. The position was made more unsatisfactory by information given in the Detailed Statement of Facts and Grounds (both in its form dated 3 February 2011 and in its amended form dated 27 April 2011, both as settled by Mr Armstrong and, as he informed me, specifically approved by Ms S), that Mr S senior and Mr H travelled to Addis Ababa in 2003 leaving the Claimant "by then 9, with the grandmother in Somalia". This indicated that his date of birth was indeed 1994, not 1996. Yet earlier in the same documents Mr Armstrong had said that the Claimant was born on 15 May 1996 and that the statement in Ms S's asylum questionnaire was "simply a mistake".
5. In a witness statement dated 7 June 2007 produced in support of an application for entry clearance by Mr S senior and Mr H, Ms S gave the age of the Claimant as "12", which might seem to be rather more consistent with a date of birth in May 1994 (so that the Claimant would only just have turned 13) than May 1996. However, without referring to her previous evidence, in these proceedings Ms S made a witness statement dated 2 February 2011 in which she said she had made a mistake in giving a date of 1994 rather than 1996 in her asylum questionnaire.
6. I was left feeling sceptical that the Claimant's true date of birth is 15 May 1996 rather than 15 May 1994. It is a point of some potential significance, since the younger the Claimant is, the stronger may be his claim under Article 8 of the European Convention on Human Rights ("the ECHR") and under the Human Rights Act 1998 ("the HRA") as relied on in these proceedings.
7. However, I do not think it would be fair to the Claimant to proceed on any basis other than that his date of birth is 15 May 1996. That is because Mr Singh for the Secretary of State pleaded in terms in the Detailed Grounds of Defence dated 20 July 2011 that the Claimant was born on 15 May 1996. So that aspect of the Claimant's claim was not put in issue, but rather was treated as common ground, and he has therefore not had a fair opportunity to put in more material to allay any scepticism the court might have on that point.

The factual background

8. Ms S was born in Somalia in 1985. As a girl living in Somalia, Ms S's family feared for her safety on grounds of her ethnic and tribal affiliations, as they belong to the Reer Hamar minority clan and had suffered attacks in Somalia. Mr S senior was able to call on his brother living in the USA to raise the money to send Ms S to the United Kingdom. She arrived here in June 2002 as an unaccompanied minor, aged 16. She applied for asylum and was granted indefinite leave to remain as a refugee recognised under the UN Refugee Convention 1951.
9. Ms S had been married in Somalia at the age of 13, but left her husband to come to the United Kingdom and has since divorced him. She was pregnant when she arrived in the United Kingdom and had her son here. She has since then had a second child. She has worked hard to make a life for herself and her children here.
10. While the family were living in Somalia in 2000 they were attacked. The Claimant's mother died shortly afterwards and the Claimant's grandmother moved in with them to look after the children. Ms S left Somalia in 2002, as set out above. Mr S senior and Mr H left Somalia and went to Addis Ababa in 2003. They left the Claimant behind in Somalia with his grandmother.
11. Mr S senior and Mr H made applications on 21 September 2003 from Addis Ababa for entry clearance to join Ms S (as their sponsor in the United Kingdom), relying on the Secretary of State's family reunion policy in place at the time. At the time they made their applications, the policy of the Secretary of State was not to charge an application fee where the sponsor had refugee status (as Ms S had). They did not include the Claimant in their applications.
12. Following the death of the Claimant's grandmother, he travelled to Addis Ababa in 2005 to join Mr S senior and Mr H. They did not, however, make an application on his behalf for entry clearance to come to the United Kingdom.
13. They were interviewed for the purposes of their applications in September 2004. Their applications were refused by the Secretary of State by notice dated 9 September 2004, on the grounds that they had failed to demonstrate any close family ties with Ms S in the United Kingdom and were living with their family unit in Ethiopia.
14. Mr S senior and Mr H appealed against this decision under section 82 of the Nationality, Immigration and Asylum Act 2002. Ms S gave oral evidence at the hearing of their appeal. In a determination dated 20 January 2006, Immigration Judge Oliver dismissed the appeal under the Immigration Rules but allowed the appeal under Article 8 of the ECHR. The Secretary of State sought and obtained a reconsideration of that decision. There was therefore a further hearing before the Asylum and Immigration Tribunal (Immigration Judge Woodhouse and Immigration Judge Paul) in June 2007, at which Ms S relied on her witness statement dated 7 June 2007 and again gave oral evidence.
15. In her witness statement she said that she had made an application for her "father [Mr S senior] and brothers [Mr H and the Claimant]" to join her in the United Kingdom, but in fact her only application to the Secretary of State and to the Tribunal on the appeal was for Mr S senior and Mr H to join her. She did not apply for clearance for the Claimant to come to the United Kingdom. He was to be left behind to live with family friends in Addis Ababa. This tended to undermine the case being presented to the court on the present application, which sought to emphasise the closeness and pressing nature of the family ties between the Claimant, Mr S senior, Mr H and Ms S.
16. In a further witness statement dated 2 February 2011 prepared for these proceedings, Ms S said that the reason that no application was made at that time in relation to the Claimant was that Mr S senior and Mr H were already in the court system with appeals pending, and she did not want to sponsor a further application which might prejudice the other applications which had already been subject to long delay. She also said she was advised by her solicitor that an application for the Claimant would stand more chance of success if the rest of the family were granted entry.
17. Neither of these points struck me as good explanations, particularly when assessed in the light of further long delay in making an application for the Claimant after the applications of Mr S senior and Mr H were successful and they were admitted to the United Kingdom (see below). It is difficult to see how making an application for the Claimant would prejudice or hold up consideration of the applications of Mr S senior and Mr H (and it is noticeable that in her witness statement Ms S did not say that her solicitor advised her that it would). Although Ms S was advised that the Claimant's application would have a better prospect of success if the rest of the family were granted entry, it is difficult to conclude that that was the factor which governed her decision not to sponsor an application by the Claimant, because she still delayed for some two years even after Mr S senior and Mr H were admitted to the United Kingdom. Also, if it was really felt that it was urgent to try to reunite the Claimant with the rest of the family, one might have thought, given the delay which had been experienced with her father and Mr H, that the more obvious course would be to make an application for the Claimant as soon as possible, relying as necessary on his appeal rights which would be likely to arise after the others had been admitted to the United Kingdom (if they succeeded in their appeals).
18. In her evidence to the Tribunal, Ms S stressed the financial support she provided to the family in Addis Ababa in order to emphasise the closeness of their family ties. She said that although she only received benefits of £100 per week, she budgeted and managed to save to send $100 every month since she came to the United Kingdom. This evidence was accepted by the Tribunal.
19. In a decision dated 8 August 2007 the Tribunal allowed the appeals by Mr S senior and Mr H. It accepted that on Ms S's evidence of financial support and regular telephone contact with her father and Mr H, their continued financial and emotional dependency on her indicated a strong connection between them which had remained largely unbroken despite Ms S's departure in 2002. The Tribunal concluded, therefore, that there was a continuity of family life between Mr S senior and Mr H and Ms S, "further strengthened by [Ms S's] decision to support their application for entry clearance …". The Tribunal found that Mr S senior had a serious medical condition which was not being treated in Ethiopia, that Mr H was his carer and that it was not reasonable to expect Ms S to go to Ethiopia to join them. The Tribunal found that the consequences of the Secretary of State's decision had consequences of such gravity as to engage the operation of Article 8. The Secretary of State raised an issue whether Mr S senior and Mr H could be adequately maintained by Ms S as their sponsor if they came to the United Kingdom, but the Tribunal observed that, according to the Secretary of State's Family Reunion policy as it then stood, as the sponsor (Ms S) had refugee status she was not expected to meet the maintenance and accommodation requirements of the Immigration Rules, so that the Secretary of State had not properly addressed the application of that policy and could not show that the decision was "in accordance with the law" and proportionate. The appeal was therefore allowed on human rights grounds.
20. Mr S senior and Ms H were then granted entry clearance and came to the United Kingdom, where they have continued to live. They too are dependent on state benefits.
21. There was then a gap of about two years in which none of Ms S, Mr S senior or Mr H took any steps to try to arrange for the Claimant to come to the United Kingdom to join them. This again tended to undermine the claim in these proceedings that the Claimant has a family tie with them of such great strength as to provide a pressing case for recognition and protection by way of a positive obligation arising under Article 8. The reason for this gap was not explained in Ms S's evidence. Mr Armstrong invited me to assume that it was because Ms S was depressed and struggling to cope with looking after her children (she now has two, having formed a new partnership since being in the United Kingdom, and she also looks after a child of a friend). In the absence of evidence to explain the delay, I do not think it is right to make such an assumption. On any view, there was a marked contrast between the efforts made by Ms S in relation to her father and Mr H and what was done in relation to the Claimant. The delay of two years before an application for entry clearance was made in relation to the Claimant called for explanation but none was given in the evidence.
22. Ms S continued to provide financial support to the Claimant to enable him to live with and be cared for by family friends in Addis Ababa. She sent $50 a month. In a further witness statement dated 12 October 2011, Ms S said that in the summer of 2011 the Claimant stopped living with the family friends because they complained about the amount of money she was sending and had moved to live with a neighbour who Ms S does not know and to whom she sends money to support the Claimant (but who also complains about the amount being sent).
23. Eventually, an application for entry clearance was made by the Claimant at the British Embassy in Addis Ababa in about September 2009. It seems it was rejected because no application fee was paid. It was then re-presented under cover of a letter from the Claimant's solicitors dated 9 September 2009 in which they said that the Claimant was not applying under the Immigration Rules but under the Family Reunion Policy and Article 8 of the ECHR. The letter complained that an application fee had been demanded and stated that the sponsor (Ms S) was not in a position to pay the fee in view of her financial circumstances. The letter went on: "In view of the fact that [the Claimant] is the minor dependant of a recognised refugee no fee should be payable". By another letter from the Claimant's solicitors to the British Embassy, also dated 9 September 2009, they maintained that as the Claimant was the minor sibling of the sponsor, entry clearance guidance indicated that no fee should be payable.
24. It seems there were further email exchanges with the Entry Clearance Post in Addis Ababa in which the Post insisted that an application fee should be paid before the Claimant's application for entry clearance would be considered and the Claimant's solicitors asserted that this was inconsistent with the Secretary of State's policy guidance, which they said "indicates that a dependant of a refugee applying for indefinite leave to remain, as [the Claimant] is, should not have to pay a fee". This was the way the point was put when reiterated in a letter before claim dated 25 January 2010 sent on behalf of the Claimant intimating a challenge to the failure of the British Embassy to accept the Claimant's entry clearance application without the payment of a fee (and in another letter dated 1 December 2009 the Claimant's solicitors stated: "In view of the fact that the Applicant is the minor dependant of a recognised refugee no fee should be payable"). The letter dated 25 January 2010 claimed, "It is not in dispute in this case that the [Claimant] is the pre-flight dependant of the Sponsor" – a statement which was untrue, if read (as the policy guidance referred to suggested it should be) as saying that the Claimant was the dependant of Ms S (his sponsor) at the time she fled Somalia.
25. The letter before claim also pointed out that Mr H had not had to pay such a fee in order to submit his application in 2004 and went on, "in our submission there is no reason to distinguish his case from that of the current Applicant [the Claimant]". The solicitors also contended that since Ms S, the sponsor, had assumed parental control over the Claimant, remitting money and taking day to day decisions on his welfare, the Claimant should be treated as the adopted minor child of the sponsor (although, for the purposes of application of policy, the treatment of adopted children as if they were natural children was a point raised in a witness statement of Muhuntham Paramesvaran dated 28 September 2010 in support of the claim for judicial review, this does not assist the Claimant in the present case as Ms S had never in fact adopted the Claimant and certainly had not done so by the time she fled Somalia).

The legal framework and the Secretary of State's policy on charging an application fee

26. At this stage it is necessary to explain how the Secretary of State's policy in relation to charging a fee for an application for entry clearance has changed over time. It appears that under the relevant policy at the time Mr S senior and Mr H made their applications for entry clearance in 2004 there was a legal power to waive any such fee and a policy to do so in circumstances where a family member was already in the United Kingdom as a refugee. I was not shown the detail of this, but the evidence was that they were not charged a fee for their applications. Part of the problem in this case is that the Claimant, his solicitors and Ms S all seem to have assumed that the same policy would or should be applied in the case of an application by the Claimant in 2009. However, policy in relation to such a matter may be (and often will be) subject to change, and an individual only has a legitimate expectation to be treated in accordance with the policy in place at the time when a decision in his case falls to be made: see the observations of Lord Scarman in In re Findlay [1985] 1 A.C. 318, 338.
27. The legal framework and the changing policy in relation to charging a fee in the period from about late 2007 are spelled out carefully and in detail by Ouseley J in R (Elmi) v Secretary of State for the Home Department [2010] EWHC 2775 (Admin). The present case has been affected by changes in guidance, policy and practice.
28. By the time the Claimant made his application in about September 2009, regulations were in place which provided for a fee to be charged for an application for entry clearance, but which also provided that no fee should be charged if the application was for the purpose of Family Reunion under Part 11 of the Immigration Rules or if "the Secretary of State determines that the fees should be waived": Elmi, at [9] and [10].
29. Prior to about July 2008, the Family Reunion Policy included a statement that dependant relatives of a refugee granted asylum in the United Kingdom, other than the minor children of that refugee, would not qualify for Family Reunion under the Immigration Rules. But the statement went on (see Elmi at [7]):

"However if there are compelling compassionate circumstances which warrant consideration of the application 'outside of the Rules' ECOs [Entry Clearance Officers] have discretion to refer applications to the Home Office for a decision on compassionate grounds. However, ECOs must be satisfied that the applicant was genuinely dependant on the sponsor before his flight to seek asylum."

30. It may be noted that the Claimant would not have been in a position to bring himself within this statement, since he was not dependant on Ms S at the time of her flight to seek asylum. On the other hand, if it had been Mr S senior who had fled to the United Kingdom as a refugee, the Claimant would have been able to claim for entry clearance within the Family Reunion Policy under the Immigration Rules. This is an aspect of the case on which Mr Armstrong sought to rely: see below.
31. From about July 2008, further entry clearance guidance was issued which included a warning that the policy on Family Reunion was being revised and staff should refer to recently issued interim guidance: Elmi at [11]. From 13 October 2008 interim guidance was in force which included the following statement (see Elmi at [12]):

"Other dependant relatives.

Dependant children over the age of 18 and other dependant relatives (eg mother, father, brother, sister etc) do not qualify for Family Reunion under this section of the Rules. However, ECOs should accept applications (gratis) from those mentioned above for consideration. ECOs must not refuse to accept these applications or request applicants to withdraw any applications in this category

•If you are satisfied that the applicant was genuinely dependant on the sponsor before the flight to seek asylum and;

•There are compelling compassionate circumstances, which warrant consideration of the application outside of the Rules ECOs have discretion to refer applications via the HO referrals mailbox NCC2 for a decision on compassionate grounds.

If you are not satisfied that there are compelling compassionate circumstances, then the applications should be refused. The notice of refusal should make it clear as to why you are not satisfied that there were any compelling compassionate circumstances which warranted referral for a decision outside of the Immigration Rules".

32. Thus this interim guidance now stated that applications within the defined category were to be considered without payment of a fee. Again, however, the Claimant could not have relied on this policy, as he had not been dependant on Ms S before she fled to seek asylum.
33. Even with this interim guidance in place, the position seems to have been rather confused. The interim guidance was not treated as definitive policy of the Secretary of State as to how his discretion to waive fees would be exercised. Rather, a more ad hoc approach was followed: see Elmi at [13]. If an applicant claimed not to be able to afford the application fee there would be consideration of a range of potentially relevant factors including the financial circumstances of any UK sponsor and the person who would be paying the air fare, to see whether the waiving of the fee (and hence the increased burden on public funds) would be appropriate in the circumstances.
34. On 7 May 2009 the Entry Clearance Guidance was updated. The Family Reunion rules were still said to be under review, and now in relation to "Other dependant relatives" the text set out above had been replaced with the simple statement, "this content is under review". Now the only relevant statement on fees was that they were to be waived when the Secretary of State directed that they should be: see Elmi at [15]. This was the only relevant statement of guidance in place when the Claimant made his application for entry clearance in early September 2009. It should be noted that, unlike the guidance referred to at para. [31] above, according to this statement, even if Mr S senior had been accepted into the United Kingdom as a refugee and the Claimant had been applying as his dependant child under 18 years of age, there would have been no automatic provision for waiver of the application fee.
35. There were subsequent policy changes on 18 September 2009 and 9 July 2010: see Elmi at [17]. With effect from 9 July 2010 the Secretary of State set out in Operational Policy Instruction 216 ("OPI 216") that her policy was that she would only waive the payment of an application fee

"4. … where there are the most exceptional compelling and compassionate circumstances specifically relating to the payment of the fee. …

5. Officials have no discretion to waive visa fees for any reason other than those listed in the fees legislation …

6. Where there is a request for a gratis visa outside [certain categories of case, not applicable here] this must be referred to the UK.

7. Destitution alone will not be considered as valid grounds for waiving visa fee. When considering the payment of the fee, it is usual practice to consider not only the applicant's ability to pay but also to take into account the sponsor's, or other wider family's ability to pay the fee as well.

8. When applying [the relevant regulation on waiver] the visa application itself will not be examined. Consideration is given solely with relation to the payment of the fee.

9. The expectation is that all applicants seeking a visa to enter the UK … will pay the appropriate fee. Visa operations are an essential part of the UK's immigration control and it is Government policy that, where possible, fees charged for services should cover costs of providing them, to reduce the burden on the taxpayer. …"

36. The substance of OPI 216 was, however, only included as part of the Entry Clearance Guidance which is published on the website of the UKBA by amendment of the Guidance on the website on 22 September 2010. That is when the new statement of policy was put into the public domain.
37. The Immigration and Nationality (Fees) Regulations 2011 (SI 2011/1055) ("the 2011 Regulations") currently govern the charging of fees. The 2011 Regulations were made under section 51 of the Immigration, Asylum and Nationality Act 2006 and came into force on 6 April 2011. They effectively re-enact the previous relevant applicable regulations, but changing the amount payable. Regulation 25 now sets the relevant fee payable for consideration of an application for entry clearance at £810.
38. The amount of £810 is set at a level above the actual estimated unit cost of administration to consider an application for entry clearance to come to settle in the United Kingdom, which is assessed at £391. The Explanatory Memorandum to the 2011 Regulations explains the reason for this as follows:

"3.3 These regulations specify fees above the administrative cost of an application, process or service in line with the Government's charging model. By charging above the administrative costs of the service on the application types referred to in this instrument, the Home Office is able to set fees for other application types at or below cost recovery to support wider Government objectives, particularly where we believe that a cost recovery fee would be so high as to damage international competitiveness in that particular area. …

7. Policy background

What we are doing and why:

7.1 The fees contained in these regulations are set above the administrative cost of providing the application, process or service in line with the Government's flexible charging model. By charging above the administrative cost of delivery on the application types referred to in this instrument, the UK Border Agency is able to generate sufficient revenue to secure the border and control migration for the benefit of the UK. This enables us to fund the necessary improvements to the immigration service, and also to set fees for certain application types below cost recovery in support of wider Government objectives.

7.2 Our overall aim is to ensure our fees make an appropriate contribution to the end-to-end costs of the immigration system in terms of the price paid for considering an application with respect to the interests of the UK taxpayer, who will continue to support the immigration system that brings benefits and enrichment to this country. Our method of fee setting will continue to help to protect certain routes from significant increases and will contribute to the additional revenue needed to fund enforcement and other necessary improvements to the immigration system.

7.3 Fees are set over costs to reflect the value of the product in terms of the benefits that the Secretary of State thinks are likely to accrue to the applicant if they are successful or the process completed. Each route brings a different set of rights and entitlements to a successful applicant. For example, some routes give a successful applicant an entitlement to access the UK labour market without the need for a sponsor, an option to apply for settlement, the ability to bring in dependants who can also work without restriction, have access to benefits etc. Other routes do not bring the same entitlements to applicants (no route to settlement, can't bring dependants, sponsor required etc.) and are priced accordingly. We set fees higher for certain routes in this way to allow us to set a lower fee in others considered to be the most economically sensitive routes (visitors, workers, employers, universities' direct costs).

Settlement applications

7.10 We propose an increase to family settlement visa fee from £750 to £810. This better reflects the value of a route to permanent settlement under this category of visa. In addition, some applicants need not apply for further temporary leave to remain in the UK before settlement. This fee will also align better with fees we charge on economic routes, where applicants pay separately for a visa and any further leave to remain in the UK. …"

39. The Impact Assessment for the 2011 Regulations contained this statement:

What is the problem under consideration? Why is government intervention necessary?

UK Border Agency must ensure that there are sufficient resources to secure the UK Border and reduce migration. Government intervention is necessary to ensure a balanced budget. The Home Office budget will be reduced by 23% in real terms over the next four years, and there will be fewer fee-paying migrants as policy change to limit on migration comes into effect. After efficiency savings of £500m over 4 years have been factored, at current fee levels, we estimate an income shortfall of £80-90m in the financial year 2011-12. To address this, and as part of the Spending Review, HM Treasury has agreed that an increased contribution is to be made by migrants who benefit directly from the services offered by the UK Border Agency."

40. Regulation 26(c) of the 2011 Regulations re-enacts the previous provision that no fee is payable in relation to such an application "where … the Secretary of State determines that the fee should be waived". OPI 216 remains in place as the policy which the Secretary of State applies in determining whether the fee should be waived.
41. In exercising her functions, the Secretary of State is under the general duty contained in section 6(1) of the Human Rights Act 1998 ("the HRA") to act compatibly with Convention rights. The particular Convention right at issue in this case is Article 8 of the ECHR, which provides:

"Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

42. In the interpretation and application of Article 8 where the interests of a child are in issue, it may be relevant to refer to Article 3 of the UN Convention on the Rights of the Child ("the UNCRC"), which provides:

"Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health in the number and suitability of their staff, as well as competent supervision."

43. In these proceedings, the Claimant also seeks to rely upon paragraph 2.34 in statutory guidance entitled "Every Child Matters" issued in November 2009 under section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"). Section 55 provides in relevant part as follows:

"Duty regarding the welfare of children

(1) The Secretary of State must make arrangements for ensuring that –

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2) The functions referred to in subsection (1) are –

(a) any function of the Secretary of State in relation to immigration, asylum or nationality; …"

44. Paragraphs 2.34 to 2.36 of "Every Child Matters" provide as follows:

"2.34 The statutory duty in section 55 of the 2009 Act does not apply in relation to children who are outside the United Kingdom. However, UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention. In some instances international or local agreements are in place that permit or require children to be referred to the authorities of other countries and UK Border Agency staff will abide by these.

2.35 As a matter of policy, posts overseas that receive or deal with applications will seek to work with local agencies in order to develop arrangements that will protect children, or promote their welfare, or reduce the risk of their being trafficked and exploited".

2.36 Before taking up entry clearance or visa duties, UK Border Agency staff must receive training on the importance of having regard to the need [to] safeguard and promote the welfare of children that they may encounter when working overseas."

The development of the dispute

45. I did not have before me a full set of the correspondence between the parties. The application bundle was incomplete in a number of respects. However, it appears that in response to the letter before claim of 25 January 2010, the Secretary of State made requests for time to consider her response. Eventually, by letter dated 17 March 2010 the Claimant's solicitors said that they were advising him to issue proceedings.
46. This brought a response from the UKBA by letter dated 23 March 2010, in which it stated that relevant documents had not been received at the British Embassy in Addis Ababa; said "please note that your client would not qualify to apply for a visa [i.e. without payment of an application fee] under the Family Reunion policy"; and invited him to make an entry clearance application under a different category, "where a fee would need to be paid". This was a fair response, which pointed out that the claim by the Claimant's solicitors in their letters that the Claimant was entitled under the relevant policy to have his application considered without payment of a fee was incorrect.
47. The proper course for the Claimant, if he wished to maintain that his application should be considered without any requirement for a fee to be paid, would then have been to set out in detail the reasons why he maintained that the UKBA should proceed in that way. He and his solicitors did not do that, however. Instead, his solicitors wrote again on 25 May 2010 enclosing a copy of the letter before claim of 25 January 2010 and a copy of QB v Secretary of State for the Home Department [2010] EWHC 483 (Admin), and stating "It is absolutely clear from this judgment that there is no justification for charging fees to our client". I consider QB in more detail below; it suffices here to say that it did not make it "absolutely clear" that the Claimant could not be charged the usual fee. The Claimant and his solicitors did not set out any detailed argument (indeed, did not set out any argument at all) by reference to the specific circumstances of his case why the Secretary of State should treat herself as legally obliged to exercise her discretion to waive the fee in his case.
48. It seems that the Secretary of State did not respond to this letter. There was then a delay by the Claimant for reasons which were not explained to me until 5 October 2010, when the claim form was issued to challenge the failure to accept the Claimant's application for entry clearance without payment of a fee. In the Detailed Statement of Facts and Grounds, settled by Mr Paramesvaran of the Claimant's solicitors, it was alleged as the Claimant's primary case that the Secretary of State had acted contrary to her own published policy (the complaint made previously) and now, in addition, it was alleged she had acted irrationally, in breach of Convention rights and had misdirected herself in refusing to waive the usual fee in the Claimant's case. Even at this stage, however, the Claimant did not set out detailed grounds by reference to his own particular circumstances to explain the irrationality or breach of Convention rights, other than to say that it is irrational and a breach of Article 8 and Article 14 "for the policy to do anything other than make special provision for other dependant relatives".
49. On 23 November 2010 a consent order was made, according to which the application for judicial review was stayed upon the Secretary of State "agreeing to consider whether the Claimant is eligible for a fee waiver in respect of an application for entry clearance under her applicable policy (Entry Clearance Basics 6.6 'Issue of Visa Gratis') within 1 month of the date this consent order is sealed". For reasons which were unclear, there was a delay by the court in the order being sealed until 12 January 2011.
50. By letter from the UKBA dated 17 January 2011, the Secretary of State refused the Claimant's request for waiver of the usual fee for consideration of his entry clearance application. The letter contained an incorrect reference to the relevant fee being £1680, but this was later corrected and the Claimant suffered no prejudice as a result of the inaccuracy. The letter referred to the policy in OPI 216, pointed to an absence of relevant evidence specific to the Claimant's case (in particular to explain why the Claimant or his sponsor, Ms S, could not pay the relevant fee) and concluded that the UKBA was not satisfied that there were "the most exceptional, compelling and compassionate circumstances specifically relating to the payment of the fee". The letter also considered whether the refusal to waive the fee would amount to a breach of the right to respect for family life under Article 8 of the ECHR. The UKBA did not accept that there was any family life between the Claimant and Ms S; that in any event such level of family life between them as did exist could continue as it had done up till then, with the Claimant in Ethiopia; and further that any interference with their family life would be lawful, necessary and proportionate. The letter pointed to the reference to the "economic well-being of the country" in Article 8(2) and emphasised that the payment of application fees "is essential to fund a number of the [UKBA's] operations".
51. In the light of this decision, the Claimant filed replacement Grounds of Claim dated 3 February 2011, drafted by Mr Armstrong. These replacement Grounds of Claim were supported by a witness statement of Ms S dated 2 February 2011. She now gave evidence that the financial support of $100 per month previously sent by her to Mr S senior and Mr H had been for the Claimant as well, and that she had continued to provide financial support for the Claimant after Mr S senior and Mr H came to the United Kingdom in 2007 at a rate of $50 per month. She also paid $150 to arrange for the transportation of the Claimant to Addis Ababa in 2005. All these amounts were saved up by her out of her welfare benefit payments. It does not appear that Mr S senior or Mr H have made any contribution from the welfare benefit payments which they receive. Ms S says that her current financial circumstances are not healthy: she cannot work because of physical health problems and depression; she is in receipt of welfare benefits, from which she has to support her two children (and it may be another child of a friend in her care, though it is unclear whether her friend gives her money in relation to this); her monthly income is approximately £1075 (excluding housing benefit). She points out that Mr S senior is in receipt of welfare benefits, while Mr H receives carer's allowance in relation to his care of him. She said she had no means to pay the fee of £1680 on behalf of the Claimant. She said that she, Mr S senior and Mr H are the only family which the Claimant has left. She provided documentation in support of her evidence about these points, including a bank statement in respect of her bank account for the period 18 December 2010 to 17 January 2011.
52. In the light of the new claims in the replacement Grounds of Claim and the new evidence, the Secretary of State filed an Acknowledgement of Service inviting the court to direct that the Secretary of State should revisit once more the decision whether there should be a waiver of the application fee in respect of the Claimant, before proceeding to give permission for judicial review. In due course, Charles J so ordered by an order dated 6 April 2011. He directed that the Secretary of State should have 14 days in which to reconsider the decision, with directions for further amendment of the Grounds of Claim thereafter if the Claimant remained dissatisfied with the result.
53. By letter from the UKBA dated 11 April 2011 ("the Decision Letter"), the UKBA gave a further reasoned decision, taking into account the new submissions and evidence adduced on behalf of the Claimant, again refusing the Claimant's claim that the usual application fee should be waived in his case. The Decision Letter noted the following:

(1) the CIA World Factbook 2010 gave the average per capita income in Ethiopia as $83 per month and that the website of the Ethiopian Embassy gave figures of $1 per day for unskilled labour and a monthly salary of $90 for a fresh graduate; and that the Claimant's income from Ms S fell between that of an unskilled labourer and the average monthly income in Ethiopia. The UKBA therefore did not accept that "the most exceptional, compelling and compassionate circumstances" applied in his case;

(2) the bank statement for Ms S's account showed that £1312.60 was paid into Ms S's bank account in the month to which it related, more than the income of £1075 per month she claimed to have, and that significant payments amounting to £582.12 were shown to the electrical retailers Currys and Comet in that month. Other significant expenditure was also noted, such as a total of £120 paid to T-Mobile (UK) Ltd. On these figures, assuming them to be representative, the UKBA fairly noted that it appeared that Ms S could save the money required to pay the application fee (the then correct amount of £750 was set out) within a reasonable time (i.e. by foregoing expenditure on large but, on the face of it, inessential items);

(3) the income of Ms S from child benefit and child tax credit for her two children and been increased from 27 August 2010 by sums in respect of a third qualifying child;

(4) Ms S had not given a full picture of the financial position of Mr S senior and Mr H, as she did not set out the benefit payments received by Mr H, and no bank statements had been submitted in respect of them to show whether they had any savings. The UKBA therefore said (fairly, in my view) that in view of the incomplete disclosure regarding their financial circumstances the Secretary of State was not satisfied that they could not contribute to meeting the cost of the application fee;

(5) the claim, now made in light of the new evidence adduced by Ms S, that a refusal to waive the application fee involved a breach of the Claimant's rights under Article 8 of the ECHR. The UKBA now accepted that the Claimant had a family life with Ms S, following H (Somalia) [2004] UKIAL 0027 (it should be noted that this was not an admission that the previous conclusion in the letter of 17 January 2011 was wrong: the information relevant to this issue available to the UKBA by the time of the Decision Letter was much more extensive than it had been in early 2010 – in my view, the assessment of the position in the letter of 17 January 2011 was fair and reasonable on the material which had then been provided to the Defendant). However, the UKBA also noted that the extent of Ms S's relationship with the Claimant was limited and could continue at the same level, and would not be interfered with by any refusal to waive the application fee in the Claimant's case. The UKBA made the further points that there was no positive obligation under Article 8(1) to waive the application fee in order to demonstrate respect for the Claimant's family life, and that even if there were an interference it would be lawful, necessary and proportionate in accordance with Article 8(2), as being in the interests of "the economic well-being of the country". The UKBA wrote, "The payment of application fees is essential to fund a number of the [UKBA's] operations, and it is not disproportionate to require your client and his sponsor rather than the UK taxpayer to meet the cost of your client's entry clearance application";

(6) Ms S's witness statement of 2 February 2011 stated that a cousin in Somalia had arranged for the Claimant to travel from Somalia to Ethiopia in 2005, so that it appeared that the Claimant had at least one other living relative outside the United Kingdom;

(7) the history of the development of the dispute. The UKBA denied that there had been any undue delay in considering the matter;

(8) notes adduced by Ms S from a doctor and a nurse stating that she was depressed, suffering from glaucoma and unable to work. However, whilst expressing sympathy for her position, the UKBA also referred to the fact that, as set out in her own witness statement, she was studying for a BTEC in Public Service and that she had been approved as carer for three children, which showed that she could function in a pressurised academic environment and take on responsibilities despite her medical problems.

54. In the light of the Decision Letter, the Claimant again re-pleaded his case in Amended Grounds of Claim dated 27 April 2011, once more drafted by Mr Armstrong. In the Amended Grounds of Claim, explanations were offered for certain withdrawals from her bank account (in particular, it was said that the £582 withdrawn in payment to Currys and Comet was not withdrawn by Ms S, but by another person using her account because they did not have an account of their own). The grounds of claim were now set out as:

(1) The Secretary of State unfairly and unlawfully moved the goalposts, without affording the opportunity to make further representations, by reducing the fee from £1,680 to £750, although the Claimant also pointed out that the true figure was £810;

(2) The Secretary of State unlawfully failed to have regard to material matters. In particular, (a) it is said that "the real strength of the case lies in the fact that it concerns a child on his own (save for a temporary carer) without status in a country not of his origin, and the rest of his family in the UK, in circumstances where were it not for the order of arrival – i.e. had the father rather than the sister arrived first and been granted refugee status – he would be entitled to be admitted as a matter of right": it was submitted that this factor set the case apart and engaged the protection of Article 8; and in his submissions, Mr Armstrong also emphasised (b) that on the facts asserted "- i.e. assuming them to be true although most of them are in any event not in dispute –" the Claimant has a good claim under Article 8 to be admitted to the United Kingdom, which he is completely shut out from presenting by the Secretary of State's insistence on payment of the normal fee; (c) that the Claimant is a child, and that while this is not a case to which section 55 of the 2009 Act applies, the relevant statutory guidance in "Every Child Matters" required compliance with the spirit of that duty, but it was not referred to in the Decision Letter; and (d) the substantial delay since the Claimant asked for waiver of the normal fee in September 2009 was "very largely" the responsibility of the Secretary of State and ought to have been taken into account in accordance with Elmi at [44];

(3) The Secretary of State's decision was irrational;

(4) The Secretary of State's decision breached the Claimant's rights under Article 8 of the ECHR. Mr Armstrong submitted that, in addressing the Claimant's claim under Article 8, I should address the current situation as it presents itself to the court. Further to that submission, he sought to rely on a further witness statement of Ms S dated 12 October 2011, adduced some time after the Detailed Grounds of Defence in respect of the Decision Letter, dated 20 July 2011, were filed. In her witness statement of 12 October 2011, Ms S explained how she had changed the arrangements for the Claimant's care in Ethiopia, affirmed the accuracy of the explanations for some of the withdrawals from her bank account in December 2010/January 2011 set out in the Amended Grounds of Claim and provided some additional information about other people who used her account (and a further statement for the account for the period 18 August to 16 September 2011), explained that due to a family dispute Mr H had now left Mr S senior's home and no longer cared for him and that she had had no contact with him for two months, stated that due to a fire at her previous house in June 2011 she had lost a lot of documents, and confirmed that neither of Mr S senior nor Mr H had been charged fees in respect of their entry clearance applications.

55. Blake J granted permission for judicial review. In his observations he focused in particular on Article 8 of the ECHR and called attention to Article 3 of the UNCRC.

Legal analysis

56. A request for waiver of a fee in respect of an application for entry clearance which would normally be due is a request for a substantive benefit which entails the state having to bear some cost. A person who applies for a waiver of the normal fee will be entitled to such waiver if he can show (i) that he falls within some statement of policy by the Secretary of State regarding the circumstances in which a waiver will be granted, or (ii) that there are other compelling circumstances of his case not referred to in any statement of policy that ought to be taken into account by the Secretary of State (see Elmi at [43]-[44]) and that, taking such matters into account, it would be irrational for the Secretary of State to refuse to grant a waiver, or (iii) that there is a duty on the Secretary of State under section 6(1) of the HRA to grant a waiver, by reference to Convention rights (here, Article 8 is relied upon). The person applying for a waiver may also be entitled to judicial review of a decision to refuse such waiver, so as to compel a reconsideration of that decision, if he can show that any of the usual grounds of judicial review (such as failure to take into account relevant considerations, or that irrelevant considerations have been taken into account) are made out.
57. The basis of the original application by the Claimant for a waiver of the fee was that he fell within a clear statement of policy which entitled him to be granted a waiver of the fee. That was an untenable basis of application: see paras. [23]-[25], [30], [32], [34] and [46]-[47] above. It is important to emphasise this point, as it is relevant to the question of responsibility for delay in considering the Claimant's claim for a waiver of the fee.
58. It was only in the claim of 5 October 2010 that reference was made to a possible wider basis of claim, but no detailed statement or evidence was provided in support regarding the particular financial position of the Claimant or his sponsor (see para. [48] above). On the basis of the information then available to her, the Secretary of State was entitled to make the decision set out in the UKBA letter of 17 January 2011 (para. [50] above) by reference to the statement of policy applicable at the time (OPI 216) and by reference to her assessment of the claim under Article 8. This is again relevant to the question of responsibility for delay in considering the claim.
59. It was only in the claim of 3 February 2011 and the additional evidence in support of it that a clearer picture of the extent of financial support given by Ms S to the Claimant and of Ms S's own financial circumstances emerged (para. [51] above). That was the material available for consideration by the Secretary of State in taking the decision set out in the Decision Letter.
60. Since that decision was taken, further evidence has been adduced from Ms S (para. [54] above). That further evidence cannot be relied upon to impugn the decision in the Decision Letter. It is only relevant to the Claimant's claim based on Article 8, in so far as that is put forward on the footing that this court should consider the position at the time of the hearing and judgment.
61. I turn, then, to consider the Grounds of Claim set out above.

Ground (1): unfair moving of the goal-posts in relation to the stated amount of the fee

62. In my view there is nothing in this point. The issue between the parties was and is whether the Claimant should have to pay the relevant ordinary fee as set out in regulations from time to time. The reference to a fee of £1,680 in the letter of 17 January 2011 was admitted to be an error, but it was an obvious one which those advising the Claimant could see for themselves by referring to the regulations. The error played no material part in the development of the dispute, since whatever the amount of the fee the onus lay on the Claimant to set out good reasons why a waiver should be granted. The reference to a sum of £750 in the Decision Letter was to the relevant ordinary fee set out in the version of the regulations which applied at the time of the Claimant's revised claim dated 3 February 2011 which the Secretary of State had agreed to consider. By the date of the Decision Letter, the 2011 Regulations had just come into force, with a revised fee of £810. It would perhaps have been more accurate for the Decision Letter to refer to this amount, as by the date of that letter it was the waiver of that fee which was in issue. But, again, that change has played no material part in the development of the dispute and has not affected in any significant way the ability of the Claimant to present his request and claim for a waiver.

Ground (2): failure to have regard to material matters

63. The first submission under this heading pressed by Mr Armstrong was that it was purely accidental in which order the other family members reached the United Kingdom, with Ms S coming here first and successfully claiming asylum, to be followed by Mr S senior, who was admitted from Ethiopia for reasons other than by reference to a personal claim for asylum by him. If, on the other hand, Mr S senior had come here first and successfully claimed asylum, Mr Armstrong said that the Claimant would have been able to bring himself within the terms of the Family Reunion Policy applicable at the time. Mr S senior would on that scenario have been a person who had fled to asylum in the United Kingdom, and at the time of his flight the Claimant was his dependant. The Claimant could in those circumstances have claimed entry to the United Kingdom straight away and in 2002-2007 would not have had to pay an application fee. This feature of the case was, submitted Mr Armstrong, a powerful factor generally and under Article 8 pointing in favour of the Secretary of State now deciding simply to admit the Claimant without insisting on payment of an application fee.
64. I reject this submission. There is no good basis either in domestic law or in the case-law under Article 8 for requiring the Secretary of State to consider a purely hypothetical scenario to test the actual claim being made in the manner suggested by Mr Armstrong. The Secretary of State was entitled to address the actual case which presented itself to her, as she did.
65. There are further problems with this submission. It is not correct to characterise the order in which Ms S and Mr S senior came to this country as something which was purely accidental. On the contrary, the decision that Ms S should come to the United Kingdom first was a deliberate choice made by Mr S senior. It was also his choice to seek entry to the United Kingdom later on from Ethiopia, relying on his daughter's already established presence here. Also, the court has next to no evidence about the circumstances in which he came to leave Somalia by going to Ethiopia, and it cannot simply be assumed that he would necessarily have established that he had a good claim to asylum had he (in the speculative counterfactual scenario which Mr Armstrong put forward) managed to come to the United Kingdom first himself. Any such claim would have had to be assessed by reference to the particular facts of his case, which have not been put before the court. The Secretary of State and the court are not obliged to speculate about any of this, in the manner proposed by Mr Armstrong.
66. Next, Mr Armstrong submitted that, when considering whether to grant a waiver of the fee, the Secretary of State should have adopted an approach akin to that employed by the courts when considering whether a defendant to a claim for summary judgment should be given leave to defend the claim at a full trial, so as to assume in the Claimant's favour that all the facts and circumstances alleged by him were true. On that approach, so the argument ran, the Secretary of State should have recognised that the Claimant had a good (indeed, unanswerable) claim under Article 8 to be admitted to the United Kingdom, which he is completely shut out from presenting by the Secretary of State's insistence on payment of the normal fee.
67. I reject this argument as well. Again, there is no warrant in domestic or Strasbourg case-law for the adoption of such an approach. Mr Armstrong himself recognised that his submission ran counter to observations in the judgment of Black J (as she then was) in QB v Secretary of State for the Home Department at [35]-[37] and [46], which I consider further below. When I review the position under Article 8 below, I explain why I think (perhaps contrary to some of the observations of Black J) that the merits or force of the underlying claim under Article 8 to be allowed to enter the United Kingdom are relevant to a claim to waiver of the application fee based on Article 8. But there is nothing in that analysis which requires the Secretary of State to assess the strength of the Article 8 claim on the footing that everything that the claimant asserts is true, as happens in favour of a defendant in a summary judgment application in domestic law. In evaluating a claim for substantive relief under Article 8 in this context, as in relation to any claim based on Article 8, the Secretary of State is entitled to make a critical assessment of the points put forward by the claimant to decide whether the claim is properly made out or not. That was the approach properly adopted by the Secretary of State in making her decisions in this case, both in the letter of 17 January 2011 and in the Decision Letter. The contrary approach put forward by Mr Armstrong is, in my judgment, wrong in principle, since it would not properly strike a fair balance between the interests of the individual and the interests of the general community, which balance underlies and informs all the Convention rights.
68. The next point emphasised by Mr Armstrong under this Ground is that the Claimant is a child, and that while this is not a case to which section 55 of the 2009 Act applies, the relevant statutory guidance in "Every Child Matters" required compliance with the spirit of that duty, but it was not referred to in the Decision Letter. As Mr Armstrong acknowledges, section 55 only applies to children in the United Kingdom and so did not apply in relation to the Claimant's case. Paragraph 2.34 of "Every Child Matters", on which the Claimant does seek to rely, is directed to the conduct of UKBA staff working overseas and does not set out policy applicable to the Secretary of State and her decision-makers in the United Kingdom, which is where the policy in OPI 216 directed that decisions on waiver of fees in cases like the present should be taken. Further, paragraph 2.34 is concerned with identifying children who may be in need of protection or safeguarding or who have welfare needs that require attention. But the Claimant does not fall into this category: his needs are being met in Ethiopia, and have been for a long time, out of the money sent by Ms S. The argument based on paragraph 2.34 was not a point raised by the Claimant in the replacement Grounds of Claim of 3 February 2011 which were the subject of the decision in the Decision Letter (it was only introduced into the Amended Grounds after the relevant decision had been taken). For all these reasons, it is not surprising that the Secretary of State did not refer to the point in the Decision Letter, and she cannot fairly be criticised for that.
69. The final matter on which Mr Armstrong placed particular weight under this Ground was the substantial delay since the Claimant asked for waiver of the normal fee in September 2009. He maintained that the delay was "very largely" the responsibility of the Secretary of State and ought to have been taken into account by the Secretary of State when deciding in the Decision Letter whether to grant a waiver of the application fee. In Elmi, Ouseley J indicated at [44]-[47] that where the Secretary of State has been responsible for delay in considering a claim for waiver of the application fee, that may be a relevant factor which has to be taken into account.
70. In my view, this submission also falls to be dismissed. The Secretary of State was not responsible, or principally responsible, for the delays in considering the claim now put forward by the Claimant. In light of the history of the development of the dispute (paras. [45]-[55] above) and the points made at paras. [57] and [58] above, I consider that the principal responsibility for the delay rested with Ms S, the Claimant and those acting for him. It was only on 3 February 2011 that anything resembling a properly formulated case set out by reference to the relevant policy in place and Article 8 and supported by evidence regarding the particular circumstances of the Claimant was put forward. That case was then considered in proper time and rejected in the Decision Letter.
71. In my judgment, Ground (2) with all its varied aspects falls to be dismissed.

Ground (3): Irrationality

72. Essentially for many of the same reasons as are given in relation to Ground (2), this Ground also falls to be dismissed. Judged in terms of ordinary domestic standards of rationality, there was nothing irrational in the decision reached in the Decision Letter. The relevant fee is set by legislation and the Secretary of State is entitled to operate a restrictive policy in relation to the exercise of her power of waiver: see Elmi at [42]. On the materials available to the Secretary of State at the time of the Decision Letter, she was entitled to take the view that an insufficient case had been made out to show that the Claimant's family was really incapable of funding the application fee. Unexplained payments out of Ms S's bank account in a single month, apparently made by her to buy expensive electrical goods and for extended mobile telephone usage, suggested that the application fee could be afforded within a reasonable time. No full picture of the financial circumstances of Mr S senior and Mr H was given. Also, upon due consideration, there appeared to be no extraneous compassionate circumstances relating to the circumstances of the Claimant in Ethiopia which compelled a different decision (cf Elmi at [43]-[44]; QB at [37]). The Claimant was being satisfactorily looked after in Ethiopia, with a reasonable level of income furnished by Ms S.

Ground (4): Article 8

73. In my view, although Mr Armstrong invited me to focus on the position at the time of the hearing, the Claimant is entitled to rely upon Article 8 as it applied to the circumstances which presented themselves to the Secretary of State (since if, on the materials available then, a breach of Article 8 could be shown that would lead to the conclusion that the Secretary of State had breached her duty under section 6(1) of the HRA to act compatibly with Convention rights) and as it applies at the time of the hearing and judgment (since if, on the materials available then, it could be shown that a breach of Article 8 would occur, the court would be subject to its own duty under section 6(1) of the HRA to act compatibly with Convention rights).
74. In my judgment, the main points to be borne in mind in structuring consideration of the case under Article 8 at either of these points in time are as follows:

(1) A person outside the United Kingdom may have a good claim under Article 8 to be allowed to enter the United Kingdom to join family members already here so as to continue or develop existing family life here: see e.g. Gul v Switzerland (1996) 22 EHRR 93 and Sen v The Netherlands (2001) 36 EHRR 81;

(2) There is, in general terms, a reasonable relationship between the application fee in issue and the burden involved on the state and the benefit potentially to be gained by an applicant for entry to the United Kingdom such as to remove any problem under Article 8 in relation to requiring payment of the fee for an application for entry clearance in a usual case. This observation covers both the estimated average direct cost of consideration of an application (£371) and the balance of the £810 fee, which operates as a form of contribution or tax levied on those who seek to make use of the immigration system to secure entry to the United Kingdom imposed in the interest of securing the overall quality of the system for them and others;

(3) A request for waiver of the application fee in a case such as the present is, in substance, a request that the state incur expense (or forego income which would in normal circumstances accrue to it) so as to facilitate, potentially at least, the enjoyment of family life by the claimant (and other members of his family) in a new place, i.e. the United Kingdom. The claim to be entitled to a waiver of the fee by application of Article 8 involves a claim that Article 8 imposes a positive obligation to facilitate enjoyment of that potential family life. Mr Armstrong and Mr Singh were therefore in agreement (rightly, in my opinion) that the claim under Article 8 is to assessed by reference to the principles applicable to identifying the extent of positive obligations under that provision, rather than by reference to the principles applicable where a direct interference with a right under Article 8(1) is in issue;

(4) This means that the case is in a rather different category from those cases in which the imposition of a fee involves a direct impediment placed in the way of an individual who wishes to exercise a clearly established Convention right other than Article 8, such as the right to have a civil dispute resolved by a court under Article 6 (where court fees imposed on people who cannot pay prevents them from having access to the very benefit that the right under Article 6 is supposed to confer: see, e.g., R v Lord Chancellor, ex p. Witham [1998] QB 575) or the right to marry under Article 12 (where a fee imposed on people who cannot pay again prevents them from having access to the very benefit that the right is supposed to confer: see R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; referred to in QB at [26] and [30]). There is no automatic right under Article 8 for family members located outside the United Kingdom to be united with other family members who are in the United Kingdom; nor does Article 8 create an automatic procedural right for someone outside the United Kingdom who is applying to join family members here to have his case considered free of charge by the immigration authorities. The question under Article 8 is whether, by insisting on payment of a fee, the state has failed properly to accord respect to family life where there may (or may not) be a good claim under Article 8 to enter the United Kingdom to deepen such family life as already exists;

(5) The approach to identifying positive obligations under Article 8(1) draws on Article 8(2) by analogy, but is not identical with analysis under Article 8(2): see e.g. Rees v United Kingdom (1986) 9 EHRR 56, para. [37]:

"In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention. In striking this balance the aims mentioned in the second paragraph of Article 8 may be of a certain relevance, although this provision refers in terms only to 'interferences' with the right protected by the first paragraph – in other words is concerned with the negative obligations flowing therefrom."

Also see Evans v United Kingdom (2008) 46 EHRR 36, para. [75]:

"Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State's positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation."

(6) The notion of "respect" in Article 8(1), which is the foundation for implied positive obligations under that provision,

"is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. …" Goodwin v United Kingdom (2002) 35 EHRR 18 at para. [72].

(7) Reflecting these considerations, an implied obligation under Article 8(1) will only be found where the court "has found a direct and immediate link between the measures sought by the applicant and the latter's private and/or family life": Botta v Italy (1998) 26 EHRR 241, paras. [33]-[35]. A court will be slow to find an implied positive obligation which would involve imposing on the State significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the State in the public interest: see, e.g., the rejection of the implied obligation argument by the ECtHR in its admissibility decision in Sentges v The Netherlands, ECtHR, decision of 8 July 2003 (denial of assistance in the form of provision of a life-transforming robotic arm for a severely disabled person); also see Draon v France (2006) 42 EHRR 40, paras. [105]-[108] (Grand Chamber);

(8) On the other hand, the fact that the interests of a child are in issue will be a countervailing factor which tends to reduce to some degree the width of the margin of appreciation which the state authorities would otherwise enjoy. Article 8 has to be interpreted and applied in the light of the UNCRC: see In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2011] 2 WLR 1326 at [26]. However, the fact that the interests of a child are in issue does not simply provide a trump card so that a child applicant for positive action to be taken by the state in the field of Article 8(1) must always have his application acceded to (for example, the applicant in Sentges was a child); see also In re E (Children) at [12] and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 WLR 148 at [25] (under Article 3(1) of the UNCRC the interests of the child are a primary consideration – i.e. an important matter – not the primary consideration). It is a factor relevant to the fair balance between the individual and the general community which goes some way towards tempering the otherwise wide margin of appreciation available to the State authorities in deciding what to do. In the present context, the age of the child and the closeness of their relationship with the other family members in the United Kingdom are likely to be important factors which should be borne in mind (if, e.g., a very young child has just been separated from his mother, with whom he has a close relationship in the ordinary way, that is likely to indicate a strong interest for that child in restoring family life with the mother);

(9) In the context of charging fees for consideration of an application for entry clearance for a family member, it is fair and proportionate to the legitimate interests identified in Article 8(2) of "the economic well-being of the country" and "the protection of the rights and freedoms of others" (i.e. other users of the immigration system and taxpayers generally) for the state authorities to focus attention primarily on the ability of the applicant (even if the applicant is a child) and his sponsor and family members to pay the relevant fee, as policy OPI 216 does. If there is no great difficulty in them raising funds to pay the fee, there will be no tenable case for an implied obligation under Article 8(1) for the applicant to be exempted from paying the fee. In such a case it cannot be said that there is a "direct and immediate link" between the waiver of the fee and respect for family life (Botta and Draon); nor that the fair balance between the interests of the individual and the interests of the general community requires the state authorities to forego collecting the application fee. Putting the same point positively, the collection of the fee would fall within the wide margin of appreciation to be accorded those authorities (even after adjustment in light of Article 3 of the UNCRC if the interests of a child are in issue);

(10) But in a case where the claimant, sponsor and family can show that they have no ability to pay the fee, it will in my view be necessary to assess in broad terms the strength and force of the underlying claim which is to be made. If, upon undertaking such an exercise, it can be seen that the claimant may well have a strong claim under Article 8 involving an aspect of the interests protected by that provision of particularly compelling force - supporting his claim to be allowed to enter the United Kingdom to develop or continue his family life with other family members already here - and that insistence on payment of the fee will set that claim at nought, then in my view an obligation may arise under Article 8 for the Secretary of State to waive the fee (or for the court to order the Secretary of State to waive the fee). In doing this, the Secretary of State and the court are not bound to take the claimant's asserted case at its highest, as on a summary judgment application, as Mr Armstrong submitted. They are entitled to subject the case to critical evaluation to determine its true underlying strength and the true force of the particular Article 8 interest being asserted. If it is a strong underlying case concerning a compelling interest under Article 8(1), then (by contrast with the position under sub-paragraph (9) above) it can be said that there is a "direct and immediate link" between the waiver of the fee and respect for family life and that the fair balance between the interests of the individual and the interests of the general community does require the state authorities to forego collecting the application fee. Putting the same point negatively, the collection of the fee would not then fall within the margin of appreciation to be accorded those authorities (especially, in the case of a child, after adjustment in light of Article 3 of the UNCRC);

(11) In a marginal case, falling between the types of case referred to in sub-paragraphs (9) and (10) above, where the claimant, sponsor and family may be able to raise the money for the application fee but it may take some time for them to do so, the strength and force of the underlying Article 8 case will again be important, as will the assessment of the financial resources available and how long the making of the application might have to be delayed in order for the necessary funds to be raised.

75. I recognise that when one is dealing with cases falling within sub-paragraphs (10) and (11) above there will be an inevitable tension between the function of the payment of the fee (i.e. to cover the costs of considering the underlying Article 8 claim to be made) and the need to assess the strength of that underlying claim in order to determine whether the fee should be paid. However, in my view, since Convention rights are to be interpreted in a way which makes them practical and effective rather than theoretical or illusory (see e.g. Airey v Ireland (1979) 2 EHRR 305, para. [24]), there is no escape in such cases from the need to make a fair assessment of the strength and force of the underlying claim which will be defeated by insistence on payment of the fee.
76. It may be that this conclusion is somewhat at odds with observations by Black J in QB at [46] - although it is pertinent to observe that at [37] she took the Secretary of State to be making a concession that the proper approach would involve consideration of compassionate factors beyond the question of ability to pay the fee, and it is unclear to me why such factors would not include the underlying merits of the Article 8 claim, since Article 8 itself directly reflects a class of compassionate factors. However that may be, and with respect to her, I do not think that Black J expressed herself with such force on this issue that I should treat her observations as outweighing the analysis of the position under Article 8 which I have set out above.
77. I turn then to apply the legal approach set out above to the facts of the present case. I first address the position as it presented itself to the Secretary of State at the time of the Decision Letter.
78. In my view, the present case fell into the marginal category referred to in para. [74(11)] above. I consider that the Secretary of State gave proper consideration to the underlying merits of the Article 8 claim in the Decision Letter and that her decision on the materials before her not to waive the application fee cannot properly be impugned as unlawful and in violation of Article 8. She was entitled to form the view that the family life between Claimant and Ms S, Mr S senior and Mr H was at the less intense and compelling end of the scale (compare, in that regard, Odawey v Entry Clearance Officer [2011] EWCA Civ 840, esp. at [49]). Ms S had only been in contact with the Claimant at a long distance since 2002. Mr S senior and Mr H did not put in any evidence themselves in support of the Claimant's application. They had left the Claimant behind in Somalia when they moved to Ethiopia in 2003. They had left him behind again when they moved to the United Kingdom in 2007. Ms S had not taken steps for two years after that to support the Claimant in making an application for entry clearance. The Claimant was not in desperate circumstances in Ethiopia, since he had been supported there by Ms S at a reasonable level since 2005. The Secretary of State was also entitled to form the view that even though the family were on state benefits, there was a reasonable prospect on the financial information presented to her that they would be able to raise the funds necessary to pay the application fee within a reasonable time.
79. I then proceed to examine the claim based on Article 8 on the evidence available before me, which included material not available to the Secretary of State. In my judgment, the claim for waiver of the application fee again fails. The assessment remains in substance as set out in para. [78] above. The underlying Article 8 claim to respect for family life was at the weak end of the scale. Although Ms S had gone a little further by giving evidence to explain to some degree the use of her bank account, she had not met all the points made on it by the Secretary of State. Nor did she provide a full picture over an extended period of the sums going into and out of her account, or of exactly what benefits were available to Mr S senior and Mr H and what their outgoings were, so as to inform the court in a detailed way what resources might be available to the family to fund the application fee. Her own conduct in managing to save from her benefits payments (and it must have been difficult, but it was possible) so as to send $100 a month to Ethiopia between 2003 and 2007, and then $50 a month thereafter, showed that it was possible to gather together reasonably substantial sums of money over time. One might have thought that it would be still easier for the family to do that when three of them were present in the United Kingdom all with income from state benefits. I was not satisfied on the limited material put before me that this was not possible.
80. Therefore, taking into account both the limited strength and force of the underlying Article 8 claim and the possibility that the family might be able to save to be able to afford the application fee, and giving due weight to the interests of the Claimant as a child and Article 3 of the UNCRC, I conclude that there is no obligation on the court under section 6(1) of the HRA, by reference to Article 8, to require the Secretary of State to waive the application fee in the Claimant's case.

Conclusion

81. For the reasons given above, the application for judicial review is dismissed.