The Upper Tribunal is to consider a legal challenge to the government’s policy on immigration fee exemptions. Duncan Lewis’s public law team have secured permission for a judicial review in which they argue that the fee waiver policy wrongly focuses on whether migrants would be made “destitute” by the fee, when the correct test is whether they can afford to pay or not.

Home Office guidance says that applicants for a fee waiver need to show that one of the following three circumstances apply:

1. They are destitute
2. They would be made destitute by the payment of the fee
3. There are exceptional circumstances

If none of the above can be demonstrated, the waiver application will be refused. And without payment, the main application for leave to remain will be rejected as invalid.

That is what happened to the family of five involved in this case, whose leave to remain fees amount to over £7,000. They provided evidence that they cannot afford this, but were not able to establish destitution because they have somewhere to live.

Duncan Lewis argues on the family’s behalf that this focus on outright destitution is unlawful. The correct test is simply affordability: do they have the money or not?

Granting permission for the case to proceed, Upper Tribunal Judge Pickup found that “it is arguable that insofar as the Fee Waiver Policy may exclude those who cannot afford to pay the fees, but who do not qualify under the Policy’s definition of destitute/destitution, it is unreasonable, irrational or unlawful”.

The Home Office says that the policy is compatible with the leading cases of Omar [2012] EWHC 3448 (Admin) and Carter [2014] EWHC 2603 (Admin).

Saul Stone of Duncan Lewis says that “if we are successful in this case, or are able to secure changes to the policy through settlement, it is likely to be beneficial for a large cohort of people”. Counsel is Alasdair Mackenzie of Doughty Street Chambers.