In the case of R (on the application of Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin) (30 November 2012) the High Court has held that charging a fee for a human rights based immigration application will itself breach human rights law where the individual concerned cannot afford the fee. The judgment potentially brings relief to a considerable number of applicants for whom lawful status is tantalisingly possible in a legal sense but in reality impossible because it is simply unaffordable.

I say ‘potentially’ because it seems highly likely that the UK Border Agency will attempt to appeal this. The fact that a QC (senior barrister) was briefed by the Secretary of State is perhaps an indicator for how important the issue is considered to be. A silk’s fees are no doubt insignificant compared against the small fortune that UKBA rakes in from these application fees, after all…

The judgment is an interesting read. The full procedural and immigration history is almost irrelevant in the final reckoning because, perhaps wishing to avoid a judgment that could potentially be adverse, the UK Border Agency arranged with truly serendipitous timing to grant three years Discretionary Leave to the claimant on the Ageny’s own initiative, without any need for an application. Argument then ensued about whether there was any issue to be tried. The excellent Alasdair Mackenzie prevailed for the claimant, arguing that there was a discrete issue of general importance.

The Claimant in this case was on asylum support and there could be no real doubt that he could not afford the fee for a FLR(O) type application, then £475. The Secretary of State contended that it was lawful to require a fee to be paid with no provision for exemptions because she could always grant leave ‘of her own motion’ as indeed she so conveniently had in this case. Realists might observe that this was not before considerable litigation had been pursued, which is not feasible in all cases. Mackenzie successfully pleaded a number of authorities all suggesting that leaving migrants entitled to lawful status in a limbo at the mercy of the Secretary of State’s total discretion, every day committing the criminal offence of overstaying (s.25 Immigration Act 1971), was deeply unattractive. All the more so at a time when the UK Border Agency’s ability to handle such cases has been exposed as woeful.

Beatson J concluded as follows:

[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.

Unless or until the fees regulations are amended (news will be posted here if there is any) it will be hard for applicants to have their applications considered without the required fee. Litigation may be required, and if there is an appeal the Secretary of State will no doubt argue in other cases that the unlawfulness is not finally established and that fees must be paid in the meantime.