England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester M60 9DJ
		29/07/2014

Mr Justice Stewart :

Introduction

1. Pursuant to limited permission being granted to the Claimant (C) by Judge Stephen Davies on 27 February 2014 the issue in this case is: whether the Defendant's (D) decision to refuse to waive the application fee on Form FLR(O) in respect of C gives rise to a breach of Article 8 ECHR.

Relevant Factual Background

2. C is aged 22 years. He was born in Jamaica on 13 March 1992. He is a Jamaican national present in the UK without leave. He entered the UK aged 7 as a visitor on 17 September 1999 with limited leave, expiring on 17 March 2000. He has remained in the UK since then unlawfully, residing with and supported by his grandmother who has indefinite leave to remain. He attended schools in the Manchester area until the age of 16 years, leaving school on 20 June 2008. On 10 July 2009 he was convicted of burglary of a dwelling and theft.
3. C's first attempt to regularise his stay in the UK was made when he was 20 years of age in July 2012. Via his solicitors, the South Manchester Law Centre (SMLC) he applied on form FLR(O) for leave to remain in the UK on the basis of his Article 8 rights. The application form explained the basis on which SMLC considered that C was exempt from payment of the fee. It stated that he was dependent on his grandmother whose sole income is her state pension. D rejected the application on 9 August 2012 because of non payment of the fee. On 28 September 2012 SMLC sent a pre-action protocol letter to D and judicial review proceedings were issued on 31 October 2012.
4. On 30 November 2012, Beatson J (as he then was) handed down judgment in Omar v Secretary of State for the Home Department [2012] EWHC 3448. A stay was granted pending an appeal to the Court of Appeal in Omar, but the Defendant in that case subsequently withdrew her appeal.
5. On 22 July 2013, a consent order was made whereby the parties agreed to stay proceedings pending the submission by C of a further application to be considered pursuant to the new "Destitution Fee Waiver" Policy. C made that application for leave to remain (LTR) on 5 September 2013. It was made on form FLR(O). He also submitted a form Appendix 1 FLR(O) in support of his request for fee exemption on the grounds that "he is destitute and dependent entirely upon the financial support of his grandmother…(and) has no other source of money or income." Further details were given corroborating his claim for fee exemption.
6. By a letter dated 19 October 2013, D rejected C's new application, refusing to waive the application fee. A box was ticked which states "Your client does not qualify for a fee waiver because you are not considered to be destitute and there are no exceptional circumstances". The reason given was:

"The reason your client has not met the requirement above is due to the fact that it is stated in Appendix 1 FLR(O) form that your client lives with his grandmother, Hyacinth Hoyes. In her letter dated 3 September 2013 Ms Hoyes states that your client has never lived with anyone else in the UK and that they have lived together for 14 years. Ms Hoyes also states that she doesn't charge your client any rent and that she buys all his food. Further she states that "I give him no more than £20 per week on average". As a result we do not consider your client meets the definition of destitution and is not eligible for a fee exemption. "

7. C notified the court and D that he wished to challenge this decision and continue with the proceedings. He served an Amended Statement of Facts and Grounds. Permission was refused on paper but, as mentioned above, limited permission was granted by Judge Stephen Davies on 27 February 2014.

Legal Materials

8. I set out in the Appendix to this judgment the relevant parts of the statutes, statutory instruments and policy documents to which I have been referred.
9. In outline:

(i) The power to charge fees in connection with immigration is contained in section 51 of the Immigration Asylum and Nationality Act 2006 ("The 2006 Act"). Section 51(3)(c) permits Regulations to be made which "may confer a discretion to reduce, waive or refund all or part of a fee." Article3(2)(a) of the Immigration and Nationality (Fees) Order 2011 ("The 2011 Order") requires a fee for applications for LTR. Regulation 3 of the Immigration and Nationality (Fees) Regulations 2013 ("The 2013 Regulations"), in conjunction with table 1 of Appendix 1 to the 2013 Regulations, specifies a fee of £578 for an application for limited LTR^[1]. Following the decision in Omar D introduced:

"Appendix 1 FLR(O) – request for fee exemption RFE from Applicant who is destitute seeking to apply for leave to remain on the basis of Article 8 Right to Respect for Family or Private Life under Appendix FM or paragraph 276ADE".

The form states:

Definition of Destitution

"You will only be considered to be destitute if:

a) You do not have adequate accommodation or any means of obtaining it (whether or not your other essential living needs are met); or

b) You have adequate accommodation or the means of obtaining it, but cannot meet your other essential living needs."

10. D's policy is set out in the Immigration Directorate Instructions dated September 2013 ("The 2013 Directions"). The following extracts are of particular relevance:

Section 1.1 In respect of applications relying on private life:

(i) "Applicants will qualify for a fee waiver only where they can demonstrate on the basis of evidence provided that they are destitute, or where there are exceptional circumstances."

(ii) In section 2 the definition of destitution set out above is repeated.

(iii) Section 3.8 deals with how to assess destitution.

(iv) Section 7 provides for fee waiver, absence evidence of destitution in exceptional circumstances. "Exceptional circumstances" are said to relate only to the Applicant's financial circumstances and the fact that they wish to rely on an ECHR rights to remain in the UK.

Omar

11. The case of Omar dealt with the position of a person who had an Article 8 right to remain in the UK which had been recognised by the Tribunal but who could not pay the fee to apply to extend a grant of six months leave.
12. The material issue in Omar was described as follows:

"3. ……. The first is whether the Secretary of State for the Home Department acted unlawfully on 12 July 2010 in refusing to accept the claimant's application for an extension of discretionary leave without a fee. This involves a challenge to the decision made on 12 July 2010, to the vires of the relevant regulations, which provide for a fee and do not provide for it to be possible for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS^[2] support."

At paragraph 13, it was noted re Omar:

"He was still housed and supported by NASS, and in the light of the minimum funds granted by NASS, he did not have sufficient funds to pay the fee."

13. At paragraph 64 the judge encapsulated the Claimant's submission:

"There has, he submitted, been no explanation of why provision is made in the rules for waiver of fees in respect of destitute persons who seek leave to enter (the position considered in R (QB) v Secretary of State [2010] EWHC 483 (Admin)) and those who have been the victims of domestic violence but not for a person whose only means of support are payments by NASS or other categories of people…"

14. In the circumstances of Omar the judge said:

"68. …It is common ground that the claimant cannot currently be removed from the UK as a result of his successful appeal against deportation. He does not, however, have the right of abode in the UK and is required to have leave to remain. He cannot be accorded a status which is not part of the statutory scheme: see S v Secretary of State [2006] EWCA Civ 1157 and see also R(Alvi) v Secretary of State [2012] UKSC 33 at [26] – [33] and [109] per Lord Hope and Lord Walker. If the claimant remains in the UK after the expiry of a period of limited leave, in principle he will commit an offence under section 24 of the 1971 Act.

69. The tribunal has held that it is a disproportionate interference with the claimant's Article 8 rights to deport him. If he cannot afford the fee, unless he obtains leave without making an application, or there is some flexibility about the requirement to pay the fee, he is put in the position of committing an offence under section 24 and taking the (perhaps remote) risk of being prosecuted. There is also a risk that there will be an interference with his family life…"

15. Finally the judge stated:

"82. …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. Bearing in mind the approach of the House of Lords in Ghaidan v Godin Mendoza [2004] UKHL 30, I do not consider that the implication of qualifying words with this effect contradicts the essential principles or scope of the regulations. Accordingly, the decision made by the Secretary of State on 12 July 2010 was unlawful.

83. On the assumption that his submissions were rejected, Mr Johnson invited me to do so by adding the following qualifying words to the end of the regulation: "except where that would be incompatible with a Convention right". Mr Mackenzie agreed…"

The Claimant's Challenge to Policy

16. C's submission on this point can be initially encapsulated as follows:

(i) The crucial point is that he cannot afford the fee. If that is the case then, irrespective of whether he meets the test of destitution or exceptional circumstances in Appendix 1 FLR(O), his Article 8 rights are breached.

(ii) The evidence clearly establishes that C is unable to afford the fee in that he receives a maximum cash allowance of £20 per week, well below the minimum sum stipulated by law to be necessary for a single person of his age to live upon – the single person allowance for income support is £56.80 per week.

(iii) The refusal by D to process C's application to regularise his status in the UK is an ongoing breach of Article 8. This is regardless of the fact that D has taken no steps to remove C. Article 8 encompasses the right to develop as a person^[3]. C has no permission to work and claim benefits. He would find it difficult to pursue higher education/vocational training. Therefore C is being forced by D's decision to subsist below the poverty line. D's decision results interferes with C's personal autonomy and right to self determination and therefore interferes with his Article 8 rights. These rights can only properly be given effect to by a grant of status in the UK; a promise not to remove a person pending some further event is insufficient of recognition of Article 8 rights^[4]. C is entitled to a decision about his rights to reside in the UK. He is being deprived of this because his application has been rejected for want of the fee which he cannot pay.

The SS Case [R(Shueb Sheikh) v SSHD [2011] EWHC 3390 (Admin)]

17. D relies upon the SS case whilst accepting that it concerned an entry clearance application rather than an in country application for LTR. The critical paragraph of Sales J's judgment is paragraph 74. In my judgment I have to be cautious in adopting too much of paragraph 74, given that the whole context of the judge's comments was that the Claimant's Article 8 claim was "to be assessed by reference to the principles applicable to identify 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". (Para 74(3)). C's case is that the refusal to waive the fee and process his application is an interference with his Article 8 rights and so, to adopt Sales J's words in paragraph 74(4) "This means that the case is in a rather different category".^[5]
18. What I accept does translate from paragraph 74 of SS to the present situation is the following:

– It is fair and proportionate to the legitimate interests identified in Article 8(2) for state authorities to focus attention primarily on the ability on an applicant to pay the relevant fee. If there is no great difficulty in them raising funds to pay the fee there will be no tenable case under Article 8 for the Applicant to be exempted.

19. C submitted that para 74 (10) SS is relevant to my decision. In that sub-paragraph Sales J said:

"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… 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… the Secretary of State and the court… are entitled to subject the case to critical evaluation to determine its true underlying strength…"

20. I do not consider that it is relevant in the case of Claimants such as the present one whether or not they can demonstrate a strong claim under Article 8. In the SS case the refusal to waive the fee would have set the Article 8 claim "at nought". That is not the position here. I have to consider the issue of principle: if someone has a potentially valid claim for LTR, is D's policy unlawful? Further, paragraph 74(10) SS must be read in the context of the policy which Sales J was considering. This is set out at paragraph 35 SS and stated (interalia) "Destitution alone will not be considered as valid grounds for waiving visa fee."
21. In short I do not derive substantial assistance from SS because (a) It is clearly distinguishable because it concerned a different category of Article 8 rights which were potential, rather than actual. (b) C's Article 8 rights will not be set at nought. (c) There was no destitution exception to the requirement to pay a fee in the policy being considered in SS.

Article 8 and D's Destitution/Exceptional Circumstances Policy – Discussion

22. There was a measure of important common ground between the parties. Three questions need to be asked, namely:

(i) Is D's policy capable of interfering with an Article 8 right?

Both parties agree that it is.

(ii) Does the policy pursue a legitimate aim?

Again both parties accept that the policy does pursue a legitimate aim as set out in paragraphs 7.1 – 7.3 of the Explanatory Memorandum to the 2013 Regulations.

(iii) Is the policy capable of being applied in a proportionate way?

Although the parties agree on the question, they disagree in part on the answer. C accepts D's submission that D has a margin of appreciation. Also, both parties accept the qualification that the margin of appreciation cannot extend to denial of a Convention right.

23. Having set out the structure of the issues, I return to the critical point of whether the policy is incompatible with a Convention right. So long as the policy is not so incompatible, D is entitled to adopt a rigorous approach to the question of fees^[6].
24. The question is whether the line should be drawn by restricting fee waiver to those who are genuinely destitute or can demonstrate exceptional circumstances. I accept that if that line is lawful then a rigorous policy is justified, as set out in paragraph 3.8 of the 2013 Directions which deals with the evidence required for an applicant to demonstrate that they are destitute. It is also reasonable and proportionate for those who claim they are destitute to provide information and evidence as to their finances. Case workers should not have to make their own enquiries to see whether the applicant meets the policy requirements.
25. I further accept in general terms D's submission that (to the extent possible) a policy should provide clear objective guidance to case workers dealing with fee waiver applications. Unless guidance is clear and objective, transparency, consistency and fairness may be compromised. Decisions may give rise to further litigation with attendant costs, which costs would fall upon other applicants/the tax payer.
26. The difficulty with D's case, however, became apparent during argument. It seems to me that there are two major problems with the policy. These are:

(i) The narrow point

In Omar the Claimant could not afford the fee and the facts of Omar dealt with the situation where a Claimant was "destitute or in receipt only of NASS support".^[7]

Consistent with the factual position in Omar, D's Destitution Policy makes specific provision for those in receipt of NASS. In paragraph 3.4 of the 2013 Directions, if a person is receiving asylum support then "they will already have been assessed as being destitute by a Home Office caseworker" and if the Applicant's financial circumstances are unchanged "they will qualify for a fee waiver and it is not necessary to re-assess destitution"^[8]

The effect of this exemption is that a person assessed as destitute who then receives NASS has their accommodation and essential needs met.^[9] In other words, the receipt of NASS by definition takes them outwith D's definition of destitution. Nevertheless, they qualify as of right for fee waiver. Yet, a person who, by virtue of their status, does not qualify for NASS but who has a roof over their head and whose essential living needs are being met does not qualify, even if they prove that they are in no better position than an NASS recipient applicant. This internal inconsistency in the policy is a serious concern.

(ii) The wider point

In any event, the heart of the matter is what is the true ratio of Omar? To what extent does Omar assist in determining where the incompatibility with a Convention right arises? D's submission is that the policy is entirely consistent with the ratio because "this class of case"^[10] means a person who is destitute or in receipt only of NASS support. (I note that D's Skeleton Argument did not initially include the words "in receipt only of NASS support"). I do not accept that the ratio is so limited. I note from paragraph 13 of Omar, the Claimant's submission in that case that "in the light of the minimum funds granted by NASS, he did not have sufficient funds to pay the fee."^[11] It seems to me 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.

27. The difficulty with D's submission became apparent in the following manner:

I put to D's Counsel the position where an applicant, not in receipt of NASS, proved that he was no better off than such a person. The response was that the exceptional circumstances provision enabled a degree of flexibility. I pressed by asking to what extent somebody in such a financial position would come within exceptional circumstances, since the 2013 Directions at paragraph 7 seem to circumscribe very closely the ambit of exceptional circumstances. After lunch Mr Kellar informed me as follows:

"The Defendant accepts in principle if a person were able to prove with sufficient evidence of satisfactory quality that their financial position was such that were they to pay the application fee, they would be left without sufficient funds to meet their essential living needs and would thereby be rendered destitute within the meaning of the policy, this could amount to exceptional circumstances. In making that assessment, the Defendant would consider all the circumstances of the case, including, but not limited to, the income and assets of the applicant under the support currently or potentially available to them from family members, friends or others."

This position of D:

As read out to me, does not reflect the reality that if a person is in that position, it is not a question of them being able to pay the fee and thereby being rendered destitute within the meaning of the policy. Such a person would not be able to get their hands on the hundreds of pounds necessary to pay the fee. D appeared to accept this point by qualifying the statement by saying that exceptional circumstance may apply if in reality, as a result of an applicant's financial position, they could not pay the fee.

Does not appear to accord with the policy on exceptional circumstances. (policy, Paragraph 7). Nor does it appear to accord with the Introduction to the policy (paragraph 1.0) which refers to the Omar case and says in terms

"this class of case refers to cases such as that of the Claimant, who was in receipt of asylum support because he was destitute. In light of this judgment a new fee waiver has been introduced for those who can evidence that they are destitute, when making a relevant Human Rights claim."

Does not sit easily with the fact that there is nothing on the request for fee exemption form (Appendix 1 FLR (O)) which indicates D's position as explained to me. Page 1 of the form expressly says "you should only complete this form if you are seeking a fee exemption because you are destitute and so are unable to pay the fee for your leave to remain application form FLR(O)" Then the definition of destitution is set out.^[12]

(i) Puts a person who may prove themselves to be in no better position than an applicant in receipt of NASS into a discretionary "exceptional circumstances" category whereas the applicant who is in receipt of NASS has a right to fee exemption. (ii) If the "exceptional circumstances" provision is broader than it appears from paragraph 7 of the policy, then that undermines the laudable objective of having guidance which is clear and objective.

The Present Case

28. C was not "destitute" within the meaning of the policy. Permission was refused to challenge this decision of D. C has adequate accommodation and his essential living needs are met.
29. As regards the documentary evidence in support of his claim, C has provided:

(i) A letter in relation to pension credit

(ii) One un-itemised bank statement of his grandmother for the period of July/August 2013

D criticizes the absence of statements for a longer period and the absence of a breakdown of the income and expenditure on the bank statement disclosed^[13]. Therefore D submits that, even if the destitution/exceptional circumstances policy is unlawful, C has not satisfied the burden of showing that he is unable to afford the relevant fee.

30. D submits that if, as I have found, the policy is unlawful, I should reject C's claim because C did not provide sufficient evidence of satisfactory quality that he could not pay the fee. They refer to page 8 of the application form and in particular the statement "If you are being supported by a friend or relative, we require written evidence in the form of a letter confirming this, with formal documentation showing that person's financial resources."
31. I note in passing that the form is directed to the position where somebody is actually being supported by a relative. D's explanation to me of the exceptional circumstances Policy would include income and assets of the applicant under the support currently or potentially available to him from family members, friends or others.
32. I have referred in paragraph 6 of this judgment to the decision letter rejecting C's application. It is clear that that decision letter was based on destitution. It specifically says "As a result we do not consider your client meets the definition of destitution and is not liable for a fee exemption." In my judgment, given that the decision is founded solely on a policy which I consider to be unlawful, C is entitled to a reconsideration by D. It is not for the court in the circumstances of the present case to make that decision. This is particularly so as the application form is geared to the destitution criteria.
33. I therefore declare that the Policy is unlawful in that the decision to refuse to waive the application fee based on the destitution criteria and exceptional circumstances (as described in paragraph 7 of the 2013 Directions) is incompatible with the Article 8 Rights of a person such as C, who is within the jurisdiction and who has an arguable private/family life within Article 8(1) ECHR.

Supplemental Judgment

34. This supplemental judgment follows unsuccessful discussions between the parties as to the form of order and the question of a stay.
35. I have had regard to the Defendant's application for permission to appeal and submissions on disposal dated 26 July 2014 and the Claimant's written submissions on the form of an order consequential on the judgment to be handed down on 29 July 2014, dated 25 July 2014.
36. I have decided:

(i) That permission to appeal to the Court of Appeal should be granted for the reasons given in paragraphs 6 and 7 of Mr Kellar's submissions. This is the impact on the fees/waiver system and the important points of principle raised by the case. I also consider that the real prospects of success threshold is satisfied.

(ii) There is good reason to grant a stay of this case. These are set out in paragraph 12 of Mr Kellar's submissions. I am not persuaded that the case of Payne [2011] EWCA Civ 492 prevents my granting a stay. I am delaying the execution of my judgment until the determination of its correctness has been made by the Court of Appeal.

Appendix

Human Rights Act 1998

3 Interpretation of legislation

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)This section—

(a)applies to primary legislation and subordinate legislation whenever enacted;

(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c)does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

………………….

6 Acts of public authorities.

(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right

………………………

8 Judicial remedies

(1)In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

……………

SCHEDULE 1 The Articles

PART I The Convention Rights and Freedoms

…………..

Article 8 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.

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

42 Amount of fees

(1) [In prescribing a fee under section 51 of the Immigration, Asylum and Nationality Act 2006 (fees) in connection with a matter specified in subsection (2)] the Secretary of State may [...]prescribe an amount which is intended to–

(a) exceed the administrative costs of determining the application or undertaking the process, and

(b) reflect benefits that the Secretary of State thinks are likely to accrue to the person who makes the application, to whom the application relates or by or for whom the process is undertaken, if the application is successful or the process is completed.

(2) Those matters are–

………………..

(b) an application for leave to remain in the United Kindom.

Immigration, Asylum and Nationality Act 2006

51Fees

This sectionnoteType=Explanatory Notes has no associated

(1)The Secretary of State may by order require an application or claim in connection with immigration or nationality (whether or not under an enactment) to be accompanied by a specified fee.

……………….

(3)Where an order under this section provides for a fee to be charged, regulations made by the Secretary of State—

(a)shall specify the amount of the fee,

(b)may provide for exceptions,

(c)may confer a discretion to reduce, waive or refund all or part of a fee,

(d)may make provision about the consequences of failure to pay a fee,

(e)may make provision about enforcement, and

(f)may make provision about the time or period of time at or during which a fee may or must be paid.

The Immigration and Nationality (Fees) Order 2011

Requirement to pay a fee for applications connected with immigration or nationality

3.  (1)  Applications to which this article applies must be accompanied by the fee specified in regulations made under section 51(3) of the 2006 Act.

(2) This article applies to applications for—

(a)leave to remain in the United Kingdom

…………….

The Immigration and Nationality (Fees) Regulations 2013

Fees for applications, processes and services in connection with immigration and nationality

3.  Schedule 1 (Fees for applications for leave to remain in the United Kingdom) to these Regulations has effect to specify—

(a)the amount of the fees for—

(i)specified applications for leave to remain in the United Kingdom and variation of such leave for the purposes of article 3(2)(a) and (c) of the 2011 Order;

(ii)the specified application for an approval letter from a designated competent body for the purposes of article 3(2)(f) of the 2011 Order; and

(b)exceptions to the requirement to pay the fees referred to in paragraph (a)(i).

……………………

Table 1 (Fees for, and in connection with, applications for limited leave to remain in the United Kindom)

1.1	General fees for applications for limited leave to remain in the United Kingdom

1.1.1

Application for limited leave to remain where the fee is not specified elsewhere in this table or in other immigration and nationality fees regulations.

£578[14]

September 2013 IMMIGRATION DIRECTORATE INSTRUCTIONS FEE WAIVER FOR FLR(O) FORM

1.0 Introduction

The judgment in Omar, R (on the application of) v Secretary of State for the Home Department (Rev 1) [2012] EWHC 3448 (Admin) 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… 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." [paragraph 82]

"This class of case" refers to cases such as that of the claimant, who was in receipt of asylum support because he was destitute. In light of this judgment a new fee waiver has been introduced for those who can evidence that they are destitute, when making a relevant human rights claim.

……………………

1.1 Applicants who can apply for a fee waiver

1.1.1 Applications for the 10-year partner, parent or private life route

The fee waiver policy applies to applications for the 10-year partner, parent or private life route made on the form FLR(O), where the applicant has ticked the box indicating that they wish to rely on a fee waiver, and has completed Appendix 1 to the FLR(O) and enclosed relevant documentary evidence. 3

Applicants will qualify for a fee waiver only where they can demonstrate on the basis of evidence provided that they are destitute, or where there are exceptional circumstances……..

2.0 Definition of destitution

Consistent with the provision of support to asylum seekers and their dependants under section 95 of the Immigration and Asylum Act 1999, a person is destitute if:

a) They do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or

b) They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

3.0 Assessing the application

…………

3.4 Applicants in receipt of asylum support

Where an applicant is receiving asylum support under section 95 or section 4 of the Immigration and Asylum Act 1999, they will already have been assessed as being destitute by a Home Office caseworker. If the application demonstrates that the applicant's financial circumstances remain unchanged, they will qualify for a fee waiver and it is not necessary to re-assess destitution.

Applicants in receipt of asylum support are required to inform the Home Office of any change in their circumstances. If it is clear that there has been a change in the applicant's circumstances since the last assessment of destitution which may affect their eligibility for support, the application should be referred to the relevant asylum support team to consider whether they continue to be eligible for asylum support.

3.5 Applicants in receipt of Local Authority support

Where an applicant is receiving support from a Local Authority under section 17 of the Children Act 1989 or section 21 of the National Assistance Act 1948, the Local Authority will have conducted their own assessment of destitution before making a decision to grant support. In many cases it is likely that we will reach the same conclusion as the Local Authority on the question of whether or not an applicant is destitute, but this may not always be the case. Caseworkers should consider the information and evidence that the applicant has provided. An example of a case where we might reach a different conclusion from the Local Authority could be where the applicant was working and receiving an income which the Local Authority supplemented. Under those circumstances caseworkers should consider the applicant's financial circumstances to determine whether they are destitute under the terms of this policy.

If it is clear that there has been a change in the applicant's circumstances since the last assessment of destitution, caseworkers should do a new assessment of destitution on the basis of the information and evidence the applicant has provided.

…………..

3.8 Assessing destitution

An applicant claiming to be destitute will need to provide evidence, including of their financial position, demonstrating that they do not have access to adequate accommodation or any means of obtaining it, or they cannot meet their other essential living needs.

If the applicant can demonstrate that they are destitute they will qualify for a fee waiver. If not, their request for a fee waiver should be refused and their application rejected for non-payment of the required fee

In all cases the onus is on the applicant to evidence their destitution on the basis of the information set out in the Appendix 1 to the FLR(O) and any supplementary information about their circumstances which they provide in support of their application, including documentary evidence.

In considering whether an applicant is destitute, the caseworker will have in mind that:

•    Those who already have limited leave to remain will normally be free to work in the UK.

•    Where the applicant is applying for the 10-year partner route, their partner will be a British Citizen or settled in the UK and will have access to any public funds to which their circumstances qualify them. It will therefore be extremely rare for the applicant to 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. Caseworkers must consider the applicant and their partner's joint income and assets in assessing destitution.

•    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 destitute the applicant will have to demonstrate how they supported themselves in 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, then it would 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 a relative or friend may be supporting them), and therefore may not be destitute, unless the applicant can demonstrate that their circumstances have changed and that they are now without means of support. The applicant should provide relevant evidence of this.

……………..

7.0 Exceptional Circumstances

An applicant who cannot evidence destitution will not normally qualify for a fee waiver. However, there may be exceptional circumstances which mean that a fee waiver should be granted. Exceptional circumstances in this context relates only to the applicant's financial circumstances and the fact that they wish to rely on an ECHR right to remain in UK. It does not apply to a substantive consideration of their basis of claim.

An example of exceptional circumstances is where there are serious concerns as to the welfare of a child of a parent in receipt of a very low income which relate directly to that person's ability to pay the application fee. Being a parent in receipt of a low income is not in of itself an exceptional circumstance. The applicant will need to demonstrate that there is something exceptional about their financial circumstances that mean a fee waiver would be appropriate. The expectation is that exceptional circumstances will be rare.

Where exceptional circumstances are raised, these should be carefully considered and the caseworker should use their judgment to decide whether a fee waiver would be justified in the individual case before them.

If the caseworker is minded to grant the fee waiver on the basis of exceptional circumstances, the application should be referred to a senior caseworker.

EXPLANATORY MEMORANDUM TO

THE IMMIGRATION AND NATIONALITY (FEES) REGULATIONS 2013

2013 No. 749

6. European Convention on Human Rights

37. .1 Mark Harper MP, the Immigration Minister, has made the following statement regarding human rights:


"In my view the provisions of the Immigration and Nationality Fees Regulations 2013 are compatible with the European Convention on Human Rights."

7. Policy background

What we are doing and why:

38. .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. Charging fees above the cost of administration helps raise the revenue required to fund the immigration system and to cross-subsidise fees set below cost for immigration routes where a lower fee supports government objectives. As a direct result of the fees referred to in this instrument, the UK Border Agency is able to generate sufficient income to support the immigration system, maintain public confidence and ensure that migration is controlled for the benefit of the UK.
39. .2 The UK Border Agency aims to generate an appropriate contribution to its agreed running costs from the income generated from visa, nationality and immigration applications. By doing this, the Agency seeks to reduce the financial obligation on the UK taxpayer to subsidise the immigration system. It is also able to protect certain routes from significant fee increases while generating the additional revenue needed to fund enforcement and other necessary improvements to the immigration system.
40. .3 Fees are set above cost to reflect the value of the products in terms of the benefits and entitlements that would accrue to a successful applicant. The Agency takes into account the different rights and entitlements applicable for each application route. For example, some routes give a successful applicant valuable entitlements such as access to the UK labour market without the need for a sponsor, leave that qualifies for settlement, and the ability to bring dependants to the UK who can also work without restriction and access benefits.  The fee charged for such routes are set at a higher level to reflect these valuable entitlements. In comparison, other routes may not attract entitlements of the same level and are therefore priced accordingly. Where fees are set higher for certain routes, it enables the Secretary of State to minimise fee increases in others, including those considered to be the most economically sensitive (for example visitors, workers, students and businesses).

Borders, Citizenship and Immigration Act 2009.

55 Duty regarding the welfare of children.

This sectionnoteType=Explanatory Notes has no associated

(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;

(b)any function conferred by or by virtue of the Immigration Acts on an immigration officer;……………

Convention on the Rights of the Child

Adopted and opened for signature, ratification and accession by General Assembly

Resolution 44/25 of 20 November 1989

entry into force 2 September 1990, in accordance with Article 49

………………..

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; or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

Immigration Rules

Part 7

276A0. For the purposes of paragraph 276ADE the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention;

(iii) where removal directions have been set pending an imminent removal;

(iv) in an appeal; or

(v) in response to a (one stop) notice issued under section 120 of the Nationality, Immigration and Asylum Act 2002.

Private life

Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and…………

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment);…

Note 1   This has been increased to £601 since 6 April 2014 under the Immigration and Nationality (Fees) Regulations 2014.    [Back]

Note 2   NASS is the National Asylum Support Scheme.    [Back]

Note 3   Pretty v UK 2346/02, paragraph 61.    [Back]

Note 4   See Omar paras 68 and 69; MS (Ivory Coast) [2007] EWCA Civ 133, paragraph 72.    [Back]

Note 5   As to which see paragraph … below    [Back]

Note 6   See Elmi v SSHD [2010] EWHC Civ. 2774 (para 42), the SS case, para 72; R(NF) v Secretary of State for the Home Department [2014] EWHC 1971 (Admin), paras 59 & 62, and R(MM & ORS) v SSHD [2014] EWCA Civ 985, paras 148 – 150.    [Back]

Note 7   Paragraph 3.    [Back]

Note 8   There is a similar provision for Applicants in receipt of local authority support; see paragraph 3.5 of the 2013 directions.     [Back]

Note 9   The Government website shows that NASS puts a roof over an Applicant’s head and, for a single person aged 18 or over, provides a weekly payment of £36.62.    [Back]

Note 10   Omar paragraph 82.    [Back]

Note 11   See also Omar, paragraph 69.    [Back]

Note 12   D referred to section 8 which just allows an applicant to set out any additional information which the applicant feels D should take into account in determining exemption. However in my judgment this does not take the matter any further.     [Back]

Note 13   This bank statement shows balance brought forward from 8 July statement £156.60 total money in £1641.94; total money out (£953.51). Balance at close of business 8 August 2013 £845.03.     [Back]

Note 14   Now £601: The Immigration and Nationality Fees Regulations 2014    [Back]