Fee waivers: what can you do if you cannot afford to pay your immigration application fee?

Immigration applications are extremely expensive. Most requests for permission to stay in the UK (other than under the points based immigration system) now cost £1,258. In addition, applicants may need to pay an immigration health surcharge (£1,035 a year for adults and £776 for children). On average, therefore, migrants will need to spend almost £3,850 to get permission to stay in the UK for the standard period of two and a half years.

These sums are, in fact, the very bare minimum. People may also need to pay £150 to pass an English language test. Others will stump up £1,000 for using the Super Priority Service to get a decision in 24 hours if they simply cannot afford not to travel for months while the Home Office makes a decision on their application. Then there is legal representation, all too often a necessity rather than a luxury. The Immigration Rules are hard to navigate, and legal aid is limited almost exclusively to asylum claims, domestic abuse or complex human rights cases.

As a result, not everyone can afford the fees to regularise their immigration status or renew their permission to stay in the UK. Fortunately, case law has found that it is unlawful for the Home Office to charge a fee for a human rights based application where the applicant cannot afford the fee.

This article will look at when it is possible to get a fee waiver on an immigration application submitted from within the UK. If you are interested in fee waivers for entry clearance applications (applications from outside the UK), head to Sonia’s article here. If you are interested in fee waivers for children’s applications to register as British citizens, try CJ’s article or this more detailed PRCBC briefing note.

The article touches on fee waivers for victims of domestic abuse and bereaved partners, however those are in many ways different from other fee waivers. They are not covered by the main guidance on in-country fee waivers, which is here, and which is the guidance I am referring to throughout the post. Instead, you can find guidance on fee waivers for victims of domestic abuse in the general guidance for applications by victims of domestic abuse and guidance on fee waivers for bereaved partners in the guidance on “Settlement – family and private life”.

Background to the policy on fee waivers: case law

Three cases form the basis of Home Office policy on fee waivers for human rights applications. The first is R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin). The High Court found that:

The Secretary of State, as a public official, is under a duty to make and interpret rules in the light of section 3 of the Human Rights Act. The requirement in regulations 6 and 30 of the 2010 Fees Regulations that, in this class of case, a fee must be paid, there is no provision for waiver and an application without a fee “is not validly made” must, in the light of section 3, be read subject to a qualification that the specified fee is not due where to require it to be paid would be incompatible with a person’s Convention rights.

In other words, charging a fee for a human rights based immigration application will itself breach human rights law where the person concerned cannot afford the fee.

The second case is R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin). There, Mr Justice Stewart stated that

if a person demonstrates upon proper proof that they cannot pay the fee, then a policy which does not provide for waiver in those circumstances is incompatible with a Convention right [26].

In other words, the Secretary of State must agree to waive the fee when an applicant is unable to afford the fee and has a human rights claim.

The third major case is R (Dzineku-Liggison & Ors) v Secretary of State for the Home Department (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC). It would not have arisen if Home Office policy had accurately reflected the previous cases. While the Home Office should have been assessing whether an applicant could afford the fee, it was instead assessing whether the applicant was destitute or would be rendered destitute by payment of the fee. The Upper Tribunal in Dzineku-Liggison had to reiterate that the correct test is affordability.

Who can qualify for a fee waiver?

In accordance with the above case law, only those who raise a human right claim will be eligible for a fee waiver, and only where this human rights claim “constitutes a substantive basis of their application”. Applications eligible for an in-country fee waiver are:

1. applications for permission to stay under the five-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance (but there are arguments to say that even those who must and can meet the minimum income threshold should be eligible for fee waivers. I have heard, anecdotally, of applicants who did get a fee waiver and went on to be granted leave on the five-year partner route by meeting the minimum income requirement)
2. applications for permission to stay under the five-year parent route
3. applications for permission to stay under the five-year private life route
4. applications for permission to stay under the ten-year partner, parent or private life route
5. applications for permission to stay based on the European Convention of Human Rights, provided that human rights constitute a substantive basis of the claim
6. applications for further permission to stay from applicants granted discretionary leave following refusal of asylum or humanitarian protection, where the applicant claims that refusal of permission would breach their ECHR rights
7. applications for further discretionary leave from victims of trafficking or slavery who have had a positive conclusive grounds decision, have already accrued 30 months’ discretionary leave and are seeking to extend it for reasons related to trafficking or slavery
8. applications for permission to stay in the UK as a child under Appendix Child staying with or joining a Non-Parent Relative (Appendix CNP)
9. applications to extend leave under Appendix Hong Kong BN(O), although applicants must meet unique requirements including having had the ‘no recourse to public funds‘ (NRPF) condition lifted from their grant of leave and being in receipt of public funds. You can read more about the issues with this here.

In addition, although the Home Office does not consider that those are necessarily human rights applications, the following also qualify for fee waivers:

1. applications for indefinite leave to remain by victims of domestic abuse
2. applications for indefinite leave to remain by bereaved partners

It is possible for an applicant to pay their own fee but apply for a fee waiver for one or more dependants. It is also possible to ask for a waiver of the immigration health surcharge only, and not the main application fee, if the applicant can only afford one of the two.

Importantly, applications for indefinite leave to remain, even if based on a human rights claim, are not covered. This is with the notable exceptions above for victims of domestic abuse and bereaved partners. Applicants can end up extending their temporary leave forever, until they can afford the indefinite leave to remain fee. This is currently £2,885 and will in all likelihood continue to increase.

Criteria to be granted a fee waiver

According to Home Office guidance for its caseworkers, applicants for a fee waiver will need to show that they cannot afford the fee. It goes on to specify that:

An applicant is considered unable to pay the fee when they, and individuals they rely on for financial support within their household (including for Appendix CNP applications, their non-parent relative), do not have sufficient funds at their disposal to make the payment, after meeting essential living needs and continuing to meet any child’s needs.

As set out above, since the case of Dzineku-Liggison, applicants no longer need to show that they are destitute or at imminent risk of destitution. However, applicants who are destitute or at imminent risk of destitution should be granted fee waivers, as it will be accepted they cannot afford the fee.

The one exception is again for victims of domestic abuse and bereaved partners who are applying for fee waivers. They still have to meet the “destitution” test although, in my experience, victims of domestic abuse who show that they cannot afford the fee get granted fee waivers, even though they do not technically meet the destitution test. Bereaved partners have only recently been allowed to apply for fee waivers and so we do not have sufficient experience of how those are considered, but one would hope caseworkers will use a similar approach.

The definition of destitution given in the guidance is the same as that for assessing whether asylum seekers are eligible for asylum support. Under section 95(3) of the Immigration and Asylum Act 1999, applicants are considered destitute when:

1. They do not have adequate accommodation or any means of obtaining it, or
2. They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

How does the Home Office consider applications for fee waivers?

As set out above, caseworkers should consider whether applicants have a sufficient “surplus income” after meeting “essential living needs”, and/or savings, which would allow them to pay the fee.

Assessing “surplus income”

Surplus income is understood as any income left after accommodation and essential living needs are met. Officials will consider all types of income and assets, with the following to note:

• income from unlawful employment is also to be taken into consideration, although “the applicant should be informed that they may be committing a criminal offence and should stop working immediately”.
• benefits which are paid to meet specific essential needs and help with extra living costs for individuals with a long-term physical or mental health condition or disability, such as Disability Living Allowance and Personal Independence Payment, should not generally be regarded as relevant income unless there is evidence that those benefits are “being used for non-essential or luxury spending unrelated to the specific essential needs of the recipient”
• applicants may be expected to liquidate their assets, for example “on the basis that an asset has been recently acquired” or “is not being used”, or “is a luxury or non-essential item”
• caseworkers will take into account the income and assets of an applicant’s spouse or partner. Where the applicant is a child, caseworkers will take into account the income of those financially supporting them within their household
• where the applicant is supported by a family member or friend, caseworkers will generally consider it reasonable to expect them to help the applicant with the fee where they are a “close family member” including an adult child, parent or those acting in a parental capacity; where they have provided substantial support such as paying their rent and providing a regular income; and/or where they have provided support for a long period of time

Essential living needs, in turn, include “accommodation, essential bills, food, clothing, toiletries, non-prescription medication and household cleaning items” and “the costs of maintaining interpersonal relationships and accessing a reasonable level of social, cultural and religious life”. The guidance refers to the cash allowances paid to asylum seekers for a breakdown of essential living needs.

Finally, applicants’ spending habits will be looked at to see if they have “intentionally disposed of funds”, for example by: 

• providing support or loans to others without a reasonable explanation 
• voluntarily giving funds away to a third party 
• paying debts before they are required to do so, or paying more in response to a debt than is required
• buying a personal possession that is clearly not essential to their living needs
• spending extravagantly or excessively

If so, the fee waiver application may be refused.

In other words, applicants are expected to prioritise Home Office fees and to limit their expenses to what the Home Office considers “essential”.

If an applicant submits an application more than three months before their existing leave to remain is due to expire, and the caseworker considers that they have sufficient surplus income to be able to save the fee during that time, they will expect them to do so.

“Best interests of a child”

The Home Office guidance reminds caseworkers of their duty under section 55 of the Borders, Citizenship and Immigration Act 209 to have regard to the need to safeguard and promote the welfare of a child in the UK, having a child’s best interests as a primary consideration. Whenever a child may be impacted by a decision on a fee waiver request, the Home Office should consider whether “paying the fee would lead to the child experiencing a lower level of wellbeing than they currently enjoy or deprive them of something that contributes to their wellbeing”.

How to submit the application

Aside from a couple of exceptions, fee waiver requests are made online, before (and separate from) the application for permission to stay.

The exceptions are:

• applications for fee waivers by children of a non-parent relative with protection status, under Appendix CNP, which are submitted on a paper form to be sent together with the application for further leave.
• applications for fee waivers by victims of domestic abuse and bereaved partners. These applicants only submit one online application for indefinite leave, and are asked, within that application, whether they can pay the fee. If they tick that they cannot, they will not pay a fee and be asked to submit evidence of their financial circumstances together with the evidence of their eligibility for indefinite leave.

Evidence

With regards to evidence, the guidance makes it very clear that

the onus is on the applicant to credibly demonstrate that they qualify for a fee waiver… it remains the responsibility of the applicant to sufficiently evidence their claimed financial circumstances, or to provide a credible explanation of why such evidence is not available.

It also says:

You should normally expect to see information and evidence relating to the income of the applicant (and individuals they rely on for financial support within their household such as, for Appendix CNP applications, their non-parent relative), regarding their accommodation, the type and adequacy of accommodation, the amount of their rent/mortgage or of their contribution towards this, and their outgoings in terms of spending on things like food and utility bills. This information should be supported by independent evidence, such as their pay slips, bank statements, tenancy agreement and utility bills. The nature of the evidence provided will vary depending on the individual circumstances of the applicant, but the caseworker should expect to see evidence appropriate to the circumstances being claimed.

The guidance also directs caseworkers to exercise evidential flexibility:

in exceptional circumstances, where:

• the missing evidence is unnecessary because the other evidence provided is clear and compelling
• there is a compelling reason why the evidence cannot be provided.

Importantly, in all cases, evidence must be up to date.

In practice:

1. Applicants should provide as much evidence as possible of their finances and accommodation, including the usual “official” evidence like payslips, bank statements and tenancy agreements for them and other members of their households. These should cover the six months prior to the application.
2. Applicants who do not have “official” evidence should consider providing letters from any friends and family who usually support the applicant; letters from any charities assisting the applicant; and a letter from the local authority if involved.
3. Applicants who have little or no evidence may want to provide a statement setting out how they support themselves, including where they live and how they meet their essential living needs such as food and clothes.
4. A table setting out the applicant’s sources of income and details of their expenditure can be useful, if it highlights that the surplus income is less than the application fees.
5. Any “unusual” expense — i.e. anything not included in the list of essential needs above, or which is much higher than the Home Office would expect (on the basis of the report on asylum seeker allowance mentioned above) should be explained. The Home Office will also expect bank statements to be “itemised” with any regular income and outgoing, and any expenses larger than £250.
6. If applicants would technically have the money in their account, but it cannot be reasonable to use it for the fees (for example, the funds are needed to meet the essential needs of a child), that should be explained in detail. It will be rare for the Home Office to grant a fee waiver to an applicant who has sufficient money in their account to pay the fee.
7. Where “official” evidence such as bank statements is missing, applicants should set out why it is not available.

Section 3C leave

Section 3C

The Home Office guidance on fee waiver now includes the following section:

Regardless of whether the fee waiver request is granted or refused, the applicant will benefit from 3C leave if:

• they had valid permission when the fee waiver request was submitted, and which has expired by the time the fee waiver request is decided
• the applicant makes a valid application for permission within 10 working days of the date of the fee waiver decision
• the permission application that is submitted is the one for which the fee waiver request was made

Submission of a further fee waiver request within the 10 working day window will not extend the applicant’s 3C leave.

I have heard that the Home Office is applying this section strictly and retroactively (that is, including for applications made before the guidance was updated on 11 September 2024).

Example

Jamila has leave to remain valid to 8 September 2024. On 10 September 2024, she will be eligible for indefinite leave to remain on the basis of long residence in the UK. On 7 September 2024, she submits a fee waiver stating that she will apply for leave on the basis of her family life in the UK. On 10 September 2024, she applies for indefinite leave on the basis of long residence in the UK. The Home Office refuses her application for indefinite leave on the basis that the fee waiver application made on 7 September 2024 did not trigger section 3C leave, because she did not go on to submit her application for permission to stay on the basis of her family life in the UK as intended.

It is unclear to me whether this is lawful, and there may well be litigation in the future to clarify the matter. For the time being, applicants would be well advised not to apply for a fee waiver if they do not intend to then submit the application they requested a fee waiver for. Do also read this related post by Sonia. 

What happens after the fee waiver application is submitted?

Application is granted

If the applicant is granted a fee waiver they will be issued with a Unique Reference Number to be used when applying for permission to stay online. 

The application for permission to stay must then be submitted within ten working days. The Home Office guidance suggests that this is ten working days from the date of the fee waiver decision, but paragraph 34G of the immigration rules makes clear that it is ten days from the “receipt” of the decision. Nowadays, the date of decision and the date of receipt are usually the same, as decisions are sent by email.

The guidance then says that the person must then make an appointment at a Service and Support Centre within 17 working days.

If the applicant fails to make the application within these timescales, they may need to make a new fee waiver application. If their leave has expired in the meantime, they may become an overstayer. 

The process for those applying under Appendix CNP is slightly different because they apply for the fee waiver at the same time as for their leave to remain, and any applicants in this scenario should read the guidance for further details.

Some applicants who have been granted a fee waiver may be able to also apply for travel assistance to reach their closest Service and Support Centre, including where:

the applicant is destitute or would be rendered destitute by paying for travel (this includes those who are in receipt of asylum support or local authority support)

• the applicant has experienced domestic abuse and is unable to afford the cost of travel
• the applicant is required to travel further than 3 miles to attend their nearest SSC and is unable to afford the cost of travel

Example

Jose is making an application to stay in the UK on the basis that he has parental responsibility for two British children. He currently has permission valid until 20 January 2025. He makes an application for a fee waiver on 15 January 2025, and the application is approved on 15 February 2025. 

Jose has ten working days to submit the application for permission to stay as a parent. If he submits the application on time, the Home Office will consider the date of application as being the date of the fee waiver application, on 15 January 2025, so that his right to remain in the UK will be extended until a decision has been made on the application for permission to stay. If Jose fails to submit the application on time, he will have become an overstayer in the UK. If he wants to remain in the UK, he will also need to make a new application for a fee waiver, as he cannot rely on the one already made.

Application is refused

Before refusing an application, caseworkers are advised to contact an applicant who has not provided sufficient evidence in support of their fee waiver, for example:

• if evidence is missing that you believe the applicant has, or could obtain
• if evidence is inadequate but could be further clarified – for example, if an employer’s letter has been provided but it is missing relevant information, for example, it does not confirm the applicant’s gross annual salary

The status of an applicant when their application for a fee waiver is refused depends on whether the applicant had valid leave at the time of the application.

Applicants who had valid leave at the time of the fee waiver application, but whose leave has since expired, would usually be best advised to apply for permission to stay and pay the application fee within ten working days. If they do not do so, they will become overstayers.

If the applicant had no valid leave at the date of application, or still has valid leave at the date of refusal, they can chose whether to pay the application fee, or submit a new, better evidenced, fee waiver application.

Example

Let’s take the example of Jose above. His application for a fee waiver is refused on 15 February 2021, and he is given ten working days to submit further evidence to show that he does qualify for a fee waiver. Jose submits further evidence on 20 February 2021. In a decision of 10 March 2021, the Home Office advises Jose that it is still not satisfied that he qualifies for a fee waiver. Jose has now ten working days to submit, and pay for, an application to remain as a parent, or he will become an overstayer.

In certain circumstances judicial review of a refusal may be possible but this is unlikely to be a suitable option for an application that was made by a person with valid leave, as an application for judicial review would not extend their leave under section 3C of the Immigration Act 1971.

Applicants should also be wary of submitting false or incomplete information with their applications for a fee waiver, as this will impact not only the application for a fee waiver but also the application for permission to stay itself. The guidance states that:

Applicants who fail to disclose their financial circumstances in full, or who provide false information in their fee waiver request, may have current or future applications for permission refused because of their conduct (see General grounds for refusal guidance). They may also be referred for enforcement action, resulting in possible arrest and removal

The guidance further confirms that the Home Office may undertake its own checks regarding the applicant’s finances:

Checks may be undertaken with agencies such as HM Revenue & Customs, the Department for Work and Pensions and credit checking agencies (for example Equifax or Experian) to verify information provided by the applicant with regard to their income and finances (see Document verification guidance)

How good is the policy?

There is no doubt that since I wrote the original version of this article in late 2017, the policy has significantly improved, in no small part thanks to the case of Dzineku-Liggison. Fee waivers are now more than a fanciful option which many didn’t consider at all.

The policy now makes it clear that the only consideration for caseworkers is whether applicants can afford a fee. This has been reflected in practice, with many more granted fee waivers than in the past.

The most recent iteration of the policy, however, seems to have made some steps back. For example, the guidance previously instructed caseworkers to request further evidence twice before making a refusal. The new guidance also seems to go to town on “non-essential spendings”, arguably unlawfully. If an applicant cannot afford the fee, they should get a fee waiver, despite perhaps having made “unwise” financial choices. In practice, the experience of many in the sector is that the Home Office is now refusing applications that would recently have been granted

The application process can also still be improved. First and foremost, applicants still have to go through the demeaning and undignified process of explaining and justifying all their expenditures. That what many would consider well-deserved “treats”, like Christmas presents or a fancy dinner out, can be labelled as “extravagant” says a lot about the Home Office’s continued attitude towards migrants. Stakeholders have previously suggested that applicants in receipt of some benefits or asylum support should be “passported”, like in legal aid applications, which seems sensible to me.

The fact that applications can only be made online is also very problematic, in particular for those who are destitute and may not have access to a computer.

Lastly, the sheer volume of evidence and explanation required also means that, ironically, fee waiver applications can be so complex that applicants may need to pay for a legal representative to help them prepare the application (unless they can find someone to assist pro bono, or manage to obtain legal aid exceptional case funding).

Overall, though, recent changes have been positive. Anyone who cannot afford the fee should certainly be encouraged to submit an application for a fee waiver rather than putting themselves into debt.

This article was originally published in September 2017 and has been updated so that is correct as of the new date of publication shown.

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