The Home Office has agreed to review its policy Fee waiver: Human Rights-based and other specified applications, which provides guidance on the time limits for making human rights based immigration applications where an application is made after a fee waiver has been granted. This comes after confusion over deadlines threatened to jeopardise yet another otherwise valid application for leave to remain.

In judicial review proceedings brought by Duncan Lewis Solicitors, it emerged that the current policy had the potential to cause significant problems for applicants who applied for a fee waiver exemption from immigration fees, and who subsequently made late applications. The policy lacks clarity over the applicable time limits for applying for leave to remain.

Background

In June, the Upper Tribunal considered the case of FE, a Nigerian national and single father who had been a care worker in London for several years.

In early June, FE’s employer had made a routine right to work check using the Employer Checking Service, but the check came back negative. The employer, facing a potential Home Office fine or worse, immediately suspended FE without pay, and began a disciplinary process to determine whether the suspension should be permanent.

It quickly became clear that there was an issue with FE’s ongoing application to extend his leave to remain. FE hadn’t been able to afford the usual Home Office fees for making an immigration application, so in September 2021 he had applied for a fee waiver. On Saturday 20 November 2021, the Home Office sent its decision on the fee waiver application to FE’s previous legal advisors by email. That email invited FE to make a full application for leave online, using a code, within ten days (the standard procedure).

Naturally, FE’s then legal advisors didn’t see the email until Monday 22 November. They submitted FE’s application for leave on 6 December, ten days later. There was no indication of a problem. Months went by, with no news. Then came the right-to-work check by FE’s employer in June, which said he had no right to work because his immigration application had been made out of time. He had been expecting a routine decision on his application at any time. Instead, FE had lost the right to work without warning, and his status was suddenly in question.

FE had no recourse to public funds and, as a single father of two school-age children, he found himself in serious financial difficulty overnight. He borrowed money from friends and persuaded his landlord to delay his rent payments. 

In June 2022, Duncan Lewis Solicitors lodged an urgent application for judicial review on FE’s behalf. The challenge was to both the notification that FE had made an application out of time, and the lawfulness of Home Office policy on this point.

The legal issues

The courts have previously considered fee waivers in an immigration context in three important judgments:

• Omar, R v Secretary of State for the Home Department [2012] EWHC 3448;
• Carter, R v Secretary of State for the Home Department [2014] EWHC 2603; and
• Dzineku-Liggison & Ors, R [2020] UKUT 222 (IAC)

The Home Office’s fee waiver guidance and the relevant case law was summarised in a recent article by Nath Gbiki.

FE’s case raised questions about the clarity and lawfulness of the Home Office’s approach to the timing of applications, showing that policy in this area is over-rigid, with no in-built discretion to allow for exceptions.

FE maintained that his application had been made in time, and while it was being considered, he enjoyed “Section 3C” leave, which protected his rights. In Mirza [2016] UKSC 63, the Supreme Court determined that section 3C does not apply where the application to extend or vary leave is rejected as invalid. However, in this case, the Secretary of State exercised her discretion and accepted FE’s application was within time, before granting him permission to stay in the UK for a further 30 months. His right to work was also reinstated.

The policy and the Immigration Rules

The Immigration Rules and the relevant policies give separate timeframes for an application for leave to be made. Under Rule 34G (4), an application must be made “within 10 days of receipt of the decision on the fee waiver application”. However, the policy guidance that applies here,  Fee waiver: Human Rights-based and other specified applications, suggests that time runs from the date that the fee waiver is granted. It states that an application must be made “within 10 working days of the actual date of the fee waiver decision”, regardless of when it’s received. On the other hand the policy document on Validation, variation and withdrawal of applications provides that applicants will be given “10 working days from the date they are notified”. And while Rule 34G (4) stipulates that applications for leave should be submitted within “10 days” of the date that a fee waiver grant is received, both the above policies refer to “10 working days”.

The Home Office fee waiver grant letter sent to FE doesn’t make things clearer, saying that the code to be used when applying for leave would be valid for “10 working days from the receipt of the letter”.

During the proceedings, the Secretary of State confirmed that a review would be undertaken of Home Office policy on the variation of applications, and of the wording of Rule 34G. She agreed to “conduct a review of the relevant Home Office policy guidance and immigration rules to ensure they reflect her policy that a person has 10 working days from the receipt of the decision on the fee waiver application to make an application.”

The policies considered in this case are so rigid they permit no exceptions and provide no in-built discretion. They also don’t seem to give effect to the Home Office’s obligations to consider the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009. For example, the Fee waiver: Human Rights-based and other specified applications policy simply states, without any qualification, that after ten working days, the applicants’ leave “will be treated as expired”.

The Secretary of State also agreed to consider whether “to allow the exercise of discretion in certain cases”. This could mean the Home Office may consider treating late applications following a fee waiver as if they had been made in time.

FE’s case highlights how a lack of clarity in Home Office policy and process can have real-world impacts on some very vulnerable people. Those affected are typically people in families and without means, making applications for leave on human rights grounds. If their applications for leave are treated as being late, they find themselves being re-classified as overstayers overnight without 3C leave. In a hostile immigration environment, this can be catastrophic. It means, as in FE’s case, suddenly losing one’s entitlement to work and to public funds, and being subject to Home Office enforcement action. In FE’s case, the issue arose where it was unclear whether the application was in fact out of time at all, or where there was a good reason why an application was submitted, say, a day late.

The review of the policy is expected to be conducted within six months. It’s hoped the review will ultimately resolve the tension between the wording of the policy and the Immigration Rules, referring to ‘working days’ rather than days, and that the Home Office will agree that time should run from the date of receipt of a fee waiver decision, not the date it was sent. Finally, it’s vital that the review reflects that the Home Office can and should apply discretion in individual cases. Only then will the most vulnerable applicants be protected.

Phil Haywood, of Doughty Street Chambers, was counsel for the Applicant, instructed by Raja Uruthiravinayagan, Alice Povel Gillham and Chloe Palmer of Duncan Lewis Solicitors.