In another blow for the Home Office on visa application fees, the department has been forced to concede that its policy on fee waivers for entry clearance applications is unlawful.
Fee waiver policies
At time of writing, the relevant guidance states that applicants outside the UK can only be granted a fee waiver in “exceptional circumstances”, such as a natural disaster or civil war. Of course, there are many people who aren’t living through such circumstances, but who nevertheless need to be able to make a human rights application to enter the UK, for example to join their families here.
The guidance is in stark contrast with the guidance for in-country applications. This policy, following a successful challenge in the case of Dzineku-Liggison, makes provision for people who are already in the UK and need to apply for permission to remain on human rights grounds – for example, to live with their partner or child here – to apply for a fee waiver if they can’t afford the application fee. Since that judgment, we’ve seen acceptance rates for in-country fee waiver applications increase dramatically. This guidance was further updated on 5 March to emphasise that “the sole consideration on whether someone is eligible for a fee waiver is an affordability test” (emphasis original).
Entry clearance fee waivers
People making an entry clearance application from outside the UK were still left out in the cold. While there was an average of about 2,500 in-country fee waiver applications a month last year (still a worryingly low figure), the Home Office doesn’t even hold any data on the number of out-of-country fee waiver applications. That isn’t because everybody making an entry clearance application can afford to stump up in the region of £3,000 to cover the fees. It’s because the Home Office policy on these applications is so narrowly drawn as to be virtually impossible to satisfy. Apart from a few niche scenarios such as applicants on a UK government scholarship, the only discretion to grant an entry clearance fee waiver is:
where the Secretary of State determines that the fee should be waived (the exercise of this discretion should be applied in exceptional circumstances only, such as civil war or natural disaster).
Posts have no discretion to waive visa fees for any other reason other than those listed in the fees legislation, as quoted in above.
People who did try to apply under this policy were systematically refused. Countless applicants have been separated from their families for no other reason than incredibly expensive visa fees.
Successful legal challenge
After having their fee waiver applications refused, three out-of-country applicants brought a challenge to the policy. Two were represented by Enny Choudhury of JCWI, and one by Nath Gbikpi of Islington Law Centre. All instructed counsel Alasdair Mackenzie of Doughty Street Chambers.
The claimants argued that the policy was unlawful and irrational. They relied on the cases of QB v SSHD  EWHC 483 (Admin), SS v SSHD  EWHC 3390 (Admin) and the most recent Upper Tribunal judgment of Dzineku-Liggison & Ors v SSHD  UKUT 222 (IAC), all of which confirmed that the correct test for fee waivers is whether an applicant can pay a fee. Any additional criteria, such as destitution, “exceptional circumstances” or the ability to borrow money, are inconsistent with those judgments. In addition, they argued that where children are involved (which they were for two of the claimants), the policy was contrary to the best interests of those children.
Once judicial review proceedings commenced, the Home Office quite quickly backed down and did not seek to defend its policy (in itself quite telling). Instead, it agreed to withdraw the policy and revise it “with a view to introducing a criterion of affordability”. The three claimants will also have their individual applications reviewed in line with the new policy. The revised guidance for in-country applications, with its emphasis on affordability, gives an indication of what the new out-of-country policy might say.
The impending policy change offers a ray of hope. Many applicants have been struggling in a Catch-22 situation for years: unable to enter the UK because of not being able to pay the visa application fee, and unable to get a waiver for the application fee because of being outside the UK. For many people stuck in this situation, the change can’t come soon enough – especially after a year of coronavirus heartache and financial turmoil.
The Home Office hasn’t yet said when the new policy will be published – hopefully soon, given that it has conceded that the current policy (still up on the Home Office website) is unlawful. But it has said that in the meantime, urgent fee waiver applications will be reviewed. Anyone making an application at this stage should submit evidence that they cannot afford the application fee, and evidence that their case requires urgent consideration.
JCWI will be monitoring progress on this, and is keen to hear the outcome of any out-of-country fee waiver applications made before new guidance is issued. Anyone with information on this can email [email protected].
This article was co-authored with Nath Gbikpi of Islington Law Centre.