The risks of making a fee waiver application for the purpose of “buying time” to make a different application

In this post I explain the variety of reasons that it is a very bad idea to submit a fee waiver application purely for the purpose of getting section 3C leave, with no eligibility for or intention of making the subsequent immigration application mentioned in the fee waiver application. The consequences of doing this are likely to be very severe for both the applicants and anyone advising them to pursue this course of action (whether or not that person is a lawyer). This can include imprisonment.

Fee waiver applications are currently subject to a huge backlog and serious delays, with the Home Office taking several months to process them. Not everyone is entitled to a fee waiver, for example, if they are intending to apply under the skilled worker route, as this route does not have a fee waiver available.

Some people who are facing the end of their leave without currently having an option for extending (for example they are hoping to move into the skilled worker route but don’t yet have a job offer) may be tempted to take advantage of those delays. People may think that they can buy themselves several months while the fee waiver is pending and then spend that time getting into a position where they are able to make that extension application. This is very unlikely to work.

Also, as pointed out by Julian in the comments below, the Home Office guidance on fee waivers is clear that section 3C leave only applies to fee waivers where the application submitted is the one for which the fee waiver was requested.

The fee waiver application form

The application page states that where a fee waiver is granted, the applicant “must” apply in one of the specified categories:

The application form itself asks applicants to choose which of those categories they will be applying under. If a person does not intend to apply in any of them then but still selects one and submits the fee waiver application then that is likely to amount to the use of deception.

The rest of the form then needs to be filled out with financial and other information and evidence to support the request for the fee waiver. The declaration page of the application form states as follows:

The form makes it clear that if false information is given, the consequences can be serious, including prosecution. Consequences can apply not just to the applicant, but also to anyone assisting them with the application.

Consequences for the applicant

First of all, the extent to which an actual chronological queue is being operated for fee waiver applications is unclear. This means that it is not possible to predict how long it will actually take for the Home Office to make a decision on the application and there is no guarantee that doing this will “buy” enough time for the applicant to arrange an application into another route. This is a small problem compared to those I am about to move onto, but it is worth highlighting.

Refusal

Moving onto those more serious consequences, let’s use the skilled worker route as an example of the true application that the person who has submitted the fee waiver application intends to use. The suitability requirements of this route includes “SW 2.1. The applicant must not fall for refusal under Part 9: grounds for refusal.”

The grounds for refusal in Part 9 include the following:

9.7.2. An application for entry clearance, permission to enter or permission to stay must be refused where the decision maker can prove that it is more likely than not the applicant used deception in the application.

Let’s assume there is some sort of argument to be had that the fee waiver is separate to the skilled application, the use of deception in previous application can also lead to a refusal:

9.8.3A. Unless 9.8.1. applies, an application for entry clearance, permission to enter or permission to stay may be refused where a person used deception in relation to a previous application (whether or not successfully).

It seems likely to be difficult to disprove deception where a fee waiver application has been made in these circumstances, however there is also provision in Part 9 for refusals where false information has been given, short of actual deception.

Example

Mark is in the UK with permission as a skilled worker His leave is due to expire on 1 October 2024 but he does not want to stay with his current employer as they are not giving him enough work. Mark wants to find a new employer to sponsor him as a skilled worker but has not managed to do this yet and is conscious that his leave is about to expire. Mark submits a fee waiver application on 17 September 2024. This means that he has section 3C leave as a skilled worker after 1 October 2024 while the fee waiver application is being considered.

When submitting the fee waiver application, Mark chose the option saying that he would be applying to stay in the UK on human rights grounds if granted the fee waiver. Mark has no intention of making such an application, nor are there any grounds on which he could do so successfully.

Mark finds a new sponsor on 1 November 2024 and submits his application to extend permission as a skilled worker, withdrawing the fee waiver application. The Home Office caseworker looking at his skilled worker application can see that he recently submitted a fee waiver application. On consideration of that, the caseworker concludes that deception was used by Mark in the fee waiver application as it seems that the information given on the form is inaccurate and that the application was submitted solely for the purpose of extending his leave so that he could then find a new sponsor.

Mark’s application to extend his permission as a skilled worker is refused on the grounds that he used deception in the fee waiver application. The refusal letter explains that he no longer has section 3C leave and he must leave the UK. The letter also states that he will be subject to a ten year ban on re-entering the UK because of his use of deception.

Cancellation and future applications

Even if the Home Office caseworker does not pick up the issue with the use of the fee waiver application in this application of Mark’s and he is granted further permission as a skilled worker with the new sponsor, the risk of the Home Office discovering the use of deception will remain a live one, as there is also provision in Part 9 for permission to be cancelled.

Part 9 also provides that:

9.8.3A. Unless 9.8.1. applies, an application for entry clearance, permission to enter or permission to stay may be refused where a person used deception in relation to a previous application (whether or not successfully).

All of Mark’s future applications would be at risk of refusal because of the use of deception in the fee waiver application.

Re-entry ban

Paragraph 9.8.1 provides for mandatory refusal of future entry clearance or permission to enter applications where there has been a previous breach of immigration laws. At 9.8.4 it is explained that breach of immigration laws includes where deception has been used in an application, whether or not successfully.

The table at 9.8.7 explains that a person who has used deception in an application will be subject to a ten year ban on entering the UK.

Criminal offence

Section 24A of the Immigration Act 1971 provides that a person who is not a British citizen and who uses deception to to get (or try to get) leave to remain will be committing a criminal offence. On conviction they could face prison for up to two years, in addition to a fine.

Consequences for the lawyer or person assisting

First of all, if the person is not regulated but is advising a person to do this then they are committing the criminal offence of giving immigration advice contrary to section 84 of the Immigration and Asylum Act 1999 and they will be liable to imprisonment for up to two years as well as a fine (and yes, these offences are successfully prosecuted).

If the person assisting with a fee waiver in these circumstances is properly regulated then they are putting themselves at risk of having action taken against them by their regulator, whether that be the Office for the Immigration Services Commissioner, the Solicitors Regulation Authority or the Bar Standards Board.

Last but not least, anyone who is assisting someone to stay in the UK through the use of deception is committing an offence under section 25 of the Immigration Act 1971. For offences under this section, conviction can result in a period of imprisonment up to a life sentence.

Conclusion

The Home Office delays need to be sorted out, otherwise behaviour like will almost inevitably happen, particularly when faced when a lack of other options. Baseless applications then themselves exacerbate the delays, creating a vicious circle. Desperate people will do what they can to stay here and there are unfortunately people out there who will give bad advice on how to do so.