Suitability refusals: owing a litigation debt to the Home Office

Statement of changes HC877, of 11 March 2016, gave the Home Office yet another power to refuse applications for leave to enter or remain in the UK. For all applications made on or after 6 April 2016, having a “litigation debt” to the Home Office may be a ground for refusal. Such debts may arise in the course of any litigation against the Home Office (e.g. judicial reviews, claims for unlawful detention and appeals), where the court or tribunal orders the other party to pay the Home Office’s costs.

The relevant rules are found at paragraph SUI 17.1 of Part Suitability of the immigration rules.

Previously, the rules on litigation debt were found across the immigration rules in Part 9: General grounds for refusal, Appendix FM, Appendix Private Life, Appendix Armed Forces, and Appendix V: Visitor. Part Suitability of the immigration rules replaced Part 9 on 11 November 2025. Part Suitability applies to all routes other than Appendix EU, Appendix EU (Family Permit), part 11 (Asylum) (other than paragraphs 352ZH to 352ZS, and 352I to 352X), Appendix Service Providers from Switzerland, and Appendix Settlement Protection.

The power to refuse on the basis of a litigation debt under Part Suitability is “discretionary”, as opposed to mandatory. That means the Home Office should not automatically refuse applications where there is a litigation debt, but will need to take into consideration a number of factors, as outlined in its guidance.

Home Office guidance: when will a litigation debt mean a refusal?

Having a litigation debt may be a ground for refusal for almost all applications to the Home Office. It does not apply to:

• applications made under Appendix EU or Appendix EU (Family Permit);
• protection claims (except under paragraphs 352ZH to 352ZS, and 352I to 352X, and 352A to 352FJ of the Rules);
• applications for entry clearance under the ECAA Association Agreement (but it does apply to ECAA Extensions of Stay)
• Appendix S2 Healthcare Visitor
• Appendix Service Providers from Switzerland
• Appendix Settlement Protection
• Appendix Domestic Worker who is a Victim of Modern Slavery

The Home Office will (or should) weigh the factors it needs to take into consideration differently when an applicant raises human rights grounds or the best interests of a child, for example in an application made under Appendix FM.

While there will be a presumption in favour of refusal for most applications for leave to enter or remain (including as a visitor) where the applicant owes a litigation debt to the Home Office, this presumption is not there when applications are made on the basis of private or family life. The guidance on unpaid litigation costs states that where there are human rights or the best interests of a child considerations, “it will not normally be proportionate to refuse the application solely because of a litigation debt.”

Considering a refusal on the basis of litigation debt

The Home Office will take into consideration a number of factors when deciding whether to refuse an application on the basis of a litigation debt. These include, but are not limited to:

• How the debt was accrued. The Home Office will look at the conduct of the applicant in litigation to assess whether the debt was “built up from repeated and unmeritorious litigation”.  For example, the guidance states that where an applicant accrued a litigation debt by bringing unsuccessful judicial review proceedings “in an attempt to frustrate their removal from the UK” and the judicial review was found by the court to be totally without merit then it “would rarely be appropriate to exercise discretion in such a case.”
• The level of cooperation with the Home Office debt recovery attempts, looking at, for instance, whether the applicant ignored requests to pay the debt or attempted to pay it off.
• The location of the application. The Home Office suggests that applicants abroad are less incentivised to pay and therefore expects those applying for entry clearance to have cleared any litigation debt before travelling to the UK.
• The purpose of the application. The more important it is that the applicant is allowed to enter or stay in the UK, the more likely it is that discretion is applied. The Home Office gives the example of an applicant who needs to attend a relative’s funeral as opposed to a tourist coming on holiday.
• The applicant’s ability to pay. For example, whether the applicant has shown willingness to pay his or her debt but has been unable to meet an agreed payment plan due to circumstances beyond their control. That said, the Home Office says that it is unlikely to exercise discretion on the basis of the applicant’s inability to pay because “most applicants are expects to be able to maintain and accommodate themselves without accessing public funds”.
• The amount of the debt and how long it has been outstanding. The bigger the debt, and the longer it has been outstanding for, the less likely it is that the Home Office will exercise discretion and disregard the debt. Litigation debts do not expire.
• Any other relevant factors.

Human rights applications and the best interests of children

Where an application engages article 8 ECHR, or the best interests of a child are under consideration, the Home Office will still consider the factors above but also look at the proportionality of a refusal.

The guidance briefly states:

If the applicant is unable to pay the litigation debt but otherwise qualifies for entry clearance or permission on human rights grounds, or because it is in the best interest of a child, it will not normally be proportionate to refuse the application solely because of a litigation debt.

In particular the Home Office will consider the applicant’s ability to pay (e.g. it may disregard a debt where they accepted that the applicant is destitute and waived the application’s fees) and the level of cooperation with its debt recovery attempts.

The following examples are provided:

Example 1 A partner applicant under Appendix FM owes a debt of £2500. They have savings of £1000 and a regular income of £1500 per month. The applicant started to repay the debt and then stopped. There is no reasonable explanation provided to [Litigation Finance Team] regarding the stoppage of payments. Refusal of the application on the basis of the litigation debt will normally be proportionate as there is no evidence of an inability to pay.

Example 2 The applicant owes a debt of £2500. They have no savings and have not had any income for the last 4 years. They are reliant on state benefits and/or the assistance of friends to pay for basic accommodation and food. The application fee for their application was waived because the applicant is destitute. The applicant meets all the other requirements of Appendix FM. It would normally be reasonable to grant the application despite the litigation debt. The debt remains outstanding.

In exceptional circumstances, the Home Office may contact an applicant to request more information, with a view to assessing whether there are exceptional or compassionate reasons justifying an exercise of discretion. However, it is clear from the guidance that this will be the exception rather than the rule, and applicants should not expect to be given this opportunity as a matter of routine.

Appendix Settlement Family Life, Appendix Private Life and Appendix Adult Dependent Relative contain exceptions to some of the grounds of refusal, including litigation debt, for settlement applications. These exceptions are set out at paragraphs SETF 2.4 and SETF 11.4 of Appendix Settlement Family Life, paragraph PL 12.4 of Appendix Private Life and paragraph ADR 11.5 of Appendix Adult Dependent Relative.

Advising applicants

It is clear from the guidance that in theory an application will not automatically be refused because of a litigation debt. However, the Home Office will always check whether there is an outstanding litigation debt, and it is unlikely that officials will exercise their discretion in favour of the applicant, in particular for applications made other than on the basis of family and private life.

Legal representatives should, therefore, consider the following:

• Take instructions from their clients as to whether they have a litigation debt. It might be appropriate in some circumstances — for example if clients have lost a judicial review in the past — to obtain a copy of their Home Office file or contact the Litigation Finance Team to check whether the clients had been ordered to pay costs. Contact details are in the guidance.
• If there is an outstanding litigation debt, assess the fairness and lawfulness of such an award. Legal representatives should always bear in mind that it is possible that a cost award was made unlawfully. If the award was lawful, legal representatives should advise their clients to settle the debt or agree on an instalment plan. In fact, it is clear that the purpose of this ground of refusal is for the Home Office to recover money owed to them, rather than to punish applicants for having been ordered costs in the first place. If an applicant settles the debt or agrees on an instalment plan, they should not be penalised.
• When an applicant is clearly not in a position to settle their debt (namely because they cannot afford it), evidence of their finances should be submitted with the application. Do beware of those submissions contradicting others argument, for example if the applicant has to show that they have sufficient funds to maintain and accommodate themselves. Also be aware that, even when an application is granted despite there being a debt, this does not mean that the debt has been written off. If the applicant’s financial circumstances were to improve in the future, and the litigation debt was lawful, applicants should be advised to pay it then, as the debt could be held against them in future applications.
• Any time a client is ordered to pay the Home Office’s costs, assess the lawfulness of such award and seek to challenge it if unlawful.

It is rather unfortunate that a litigation debt can easily be used against an applicant, but there are no mechanisms to similarly force the Home Office to pay its litigation debts to claimants and their lawyers, which often remain outstanding for years.

This article was originally published in February 2017 and was updated in June 2020 with assistance from Nath Gbikpi. It has now been updated by Rachel Whickman so that it is correct as of the new date of publication shown.