The Upper Tribunal has found that the Home Office’s policy for waiving the immigration application fee for destitute immigrants — the fees can add up to thousands of pounds for a family — is unlawful and needs to be widened. The judgment is R (Dzineku-Liggison & Ors) v Secretary of State for the Home Department (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC). The case was clearly considered an important one at the Home Office as Sir James Eadie QC was briefed, with Zane Malik as his junior. Alasdair Mackenzie was counsel for the applicants, briefed by Saul Stone of Duncan Lewis Solicitors.

The family of five at the heart of the case would have had to pay fees of £7,665, including the Immigration Health Surcharge. They were unlawfully resident (although of course the point of the application was to become lawfully resident) and had no source of income; they simply could not afford to pay the fees. This meant they were locked out of lawful status by the cost of entry.

The Home Office’s original position, until 2012, was that no exceptions at all would be made to the absolute requirement to pay an application fee. Having lost a case called Omar and then subsequent litigation as well, the Home Office introduced a very limited policy on when fees might be waived. Under this policy, an applicant would need to prove that he or she would become destitute if the fee were to be paid.

The family involved in this case could prove they could not afford the fees but they could not prove they would be destitute. This was because they were accommodated and supported by friends and family members who would continue to support them come what may.

Affordability is the real test, not destitution

Everyone in the case agreed that the approach the Home Office was supposed to be following was to assess whether an applicant could afford the fee. This was the test established by previous cases. The question the Home Office was asking in its policy, though, was whether the applicant would be rendered destitute by being required to pay the fee. This was related but it was the wrong question.

What should have been the key test of affordability was simply absent from the guidance. As Upper Tribunal Judge Blundell put it:

I come to the clear conclusion that the overall effect of the guidance is to circumscribe unduly the circumstances in which an individual might qualify for a fee waiver.  The underlying affordability test is not mentioned expressly.

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Not only was the policy unlawful but so was the decision made under it. The Home Office argument that the decision in this case was lawful because it did not depend on the unlawful policy was rejected:

The evidence which had been presented was sufficient, on any rational view, to establish that the applicants were unable to pay a combined application fee of nearly £8000 from their own resources.

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The decision was therefore unlawful.

How to make a human rights claim

The judgment also addresses the issue of whether a human rights claim — a claim that removal from the United Kingdom would breach the person’s human rights — must be made using a specified application form and be accompanied by a fee at all. In previous litigation the Home Office had conceded that a formal application on a specified form accompanied by a fee is not necessary, although it is highly desirable.

This point was reiterated again by the Home Office. An application made without the form and fee will not be decided in a timely way but, the Home Office says, will be considered before the person is actually removed.

On the face of it, this might seem to defeat the claim for waiver of the application fee: the fee could be argued to be not strictly necessary. It purchases a timely decision but even without the fee the family would not have been removed from the UK until their human rights claim had been decided. Which might have been some years hence, if ever.

Here lay the rub. Being forced to endure this ‘half-world’ or ‘limbo’ was unacceptable and would breach the Home Office’s duty to safeguard and promote the welfare of the affected children. The offer to consider the case at some indeterminate point in the future prior to a removal taking place was insufficient.

In any event, the applicants in this case had never been told that it was accepted they had made a human rights claim and the concession that they had only came in the afternoon of the day of the hearing.

What next?

The Home Office sought and was granted permission to appeal to the Court of Appeal. This means that the old policy will probably continue to be applied by the Home Office, at least unless the appeal is abandoned (which is possible given that the policy in question is such a mess) or an outcome from the Court of Appeal is known, which could take months or even years. So, in the short term, there is no immediate change.

If the outcome of this case sticks, it means an unknown number of people have had their applications for fee waivers rejected on the basis of an unlawful policy. There is an argument that if they subsequently somehow managed to pay the fee they might be entitled to a refund. This seems pretty dubious given that actually finding the money seems a fortiori proof that they could somehow afford it.

UPDATE

The fee waiver policy was updated on 19 June 2020. The new version states that it incorporates the judgment in Dzineku-Liggison but — as Alasdair Mackenzie has pointed out — it is questionable whether it truly does given that it still includes the destitution test. However, there is now an online application process, the requirement to prove one cannot borrow money to pay the fees has been dropped and the new version allows for greater flexibility in the evidence that officials may accept as proof. We will update our existing guide to the fee waiver policy shortly.