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 320 (23) of part 9 of the Immigration Rules for entry clearance applications;
• paragraph 322 (13) of part 9 for leave to remain applications;
• paragraph S-EC.3.1. of Appendix FM for entry clearance applications on the basis of family life;
• paragraph S-LTR.4.4. of Appendix FM for applications for leave to remain on the basis of family or private life;
• paragraph 10A of Appendix Armed Forces for applications by members of the armed forces, civil employees and their family members;
• and paragraph V3.14A of Appendix V for visitor visa applications.

This power to refuse 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 European law, Appendix EU or Appendix EU (Family Permit);
• protection claims;
• applications for naturalisation or registration as British citizens.

The Home Office will (or should) weigh the factors it needs to take into consideration differently when an application is made under Appendix FM, Appendix Armed Forces or paragraph 276ADE(1) of the Immigration Rules (i.e. an application on the basis of private life). In fact, 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. Instead, these applications should only be refused when it is “proportionate” to do so.

The Home Office gives more details about the factors it will take into consideration in its Litigation debt guidance. (The general guidance on Grounds for Refusal just refers you to the specific litigation debt guidance document.)

Applications other than under Appendix FM, Appendix Armed Forces or paragraph 276 ADE(1)

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. 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 JR 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 found itself 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.
• Any other relevant factors.

Applications under Appendix FM, Appendix Armed Forces or paragraph 276 ADE(1)

For these types of application, the Home Office will still consider the factors above but also look at the proportionality of a refusal. 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.

In addition, and importantly, even when the Home Office considers that it would be proportionate to refuse an application, it must go on to look at whether there are exceptional circumstances which would warrant a grant outside the rules.

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.

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 has been updated so that it is correct as of the new date of publication shown. My thanks to Nath Gbikpi for her assistance.