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New fee waivers for foreign and Commonwealth armed forces veterans

New fee waivers for foreign and Commonwealth armed forces veterans

The Ministry of Defence and Home Office have jointly announced that the government will be waiving settlement fees for foreign citizens who have served in the UK armed forces for at least six years or been discharged due to an illness or injury attributable to their service. The change will come into force “this Spring”.

Foreign and Commonwealth recruits into the armed forces are “exempt from immigration control” while serving. They then qualify for indefinite leave to remain after completing a minimum of four years’ service (earlier if medically discharged). Qualifying for settlement is not the same as paying for it, though, and many soldiers have found themselves priced out of the UK despite serving in its uniform.

The government says that waiving the £2,389 fee is “in recognition of the immensely valuable contribution that thousands of overseas personnel make to the UK while serving”. That was not always its position: previously, ministers had argued that it would be unfair to favour foreign soldiers over other immigrants.

Shifting that position has taken much campaigning. The issue had been raised and debated in the House of Commons (see for instance here and here), by the Royal British Legion, the Confederation of Service Charities and in Armed Services Covenant reports.

The cost of immigration and nationality applications has risen extremely steeply in recent times. Although they have held steady in the last couple of years, annual increases of 20% or 25% had been standard, raising the cost of settlement from £155 in 2003 to over £2,000 by 2018. The current £2,389 levy contrasts, notoriously, with an estimated processing cost of £243. It is also vastly more than the average cost of settlement or similar applications across Europe.

I was junior counsel in a group judicial review that tried to right historic injustices in how foreign and Commonwealth personnel were discharged from the armed forces and how this impacted on their immigration status. We also argued that the fee levels were prohibitive. We did not secure permission to apply, the court agreeing with the government that the fees issue was not “justiciable” – a term also seen in the recent Supreme Court judgment in R (O (a minor)) v Secretary of State for the Home Department [2022] UKSC 3, which has become known as the PRCBC case following that organisation’s outstanding and tireless work on child citizenship fees.

Nonetheless, the government did agree to launch a public consultation on settlement fees for armed forces personnel and did so in May 2021. The original consultation proposal was to waive fees only for those who had served a minimum of 12 years. This was in complete contrast with the average lengths of service: only a very small proportion of British Army recruits, regardless of nationality, remain in uniform that long. The average length of career for infantry personnel (again regardless of nationality/immigration status) was seven years nine months. The government has now agreed that 12 years was too long.

For many, the announcement still doesn’t go far enough: fee waivers should be in line with the four years’ service/medical discharge that qualifies people for ILR in the first place, and include dependent family members.  There doesn’t appear to be any acknowledgement either of those already forced to leave the UK because they couldn’t afford the fees for themselves and their family despite years of service — including, very often, several operational tours. But it’s a start.

Sarah is a specialist immigration barrister at Goldsmith Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.