On 10 April 2024 the Home Office introduced a fee waiver process for those applying to extend their leave in Appendix Hong Kong BN(O) however the new process introduces barriers that do not exist for other routes and will be insurmountable for some applicants, through no fault of their own. As with most other fee waivers an affordability test applies but unlike other routes applicants will only have their ability to afford the fees considered if they have already had the ‘no recourse to public funds‘ (NRPF) condition lifted from their grant of leave and are in receipt of public funds.

It is worth remembering at the outset that a person with leave under Appendix Hong Kong BN(O) who needs to renew at all was probably only granted 30 months to begin with because of an inability to afford to apply for the full five years on offer.

The new process

Before now, there has been no provision for a person applying for a 30 month extension of leave under Appendix Hong Kong British National (Overseas) to obtain a fee waiver. These applications currently cost £180 plus a further £2,587.50 for the immigration health surcharge.

The regulations

On 10 April 2024 a new fee waiver process was introduced in the Immigration, Nationality and Passport (Fees) (Amendment) Regulations 2024.

The regulations provide that the fee can be waived where:

• the applicant’s current grant of leave was made under Appendix Hong Kong British National (Overseas) and
• they have had the no recourse to public funds restriction lifted from their leave under paragraph HK 65.1 and
• they are in receipt of public funds and
• the applicant satisfies the Home Office that they are unable to afford the fee.

The explanatory memorandum stated that:

Only individuals who have successfully applied to lift the NRPF condition will be eligible for such a waiver, with the policy rationale being that introduction of such a waiver reflects the fact that these individuals may face issues in being able to pay the fee if they have previously demonstrated that they are destitute or at imminent risk of destitution.

The explanatory memorandum seems to be conflating the current affordability test with the previous destitution test that has been held to be unlawful in relation to other human rights based routes.

The guidance

The guidance on fee waivers for this route is found within the Hong Kong British National (Overseas) (BNO) route caseworker guidance, which states the following:

Affordability fee waiver

An applicant can apply for a fee waiver for the application fee and/or IHS if they are applying to extend their permission on the BN(O) route for 30 months. They must demonstrate that they are in receipt of public funds having previously successfully applied for a change of conditions (CoC), and that they cannot afford the fee and/or the IHS.

If the applicant does not qualify to waive their fees but they meet all other requirements for further permission to stay on the BN(O) route, you should request the payment of the fees and once received, grant them as standard with no recourse to public funds.

Where an applicant has stated that they cannot afford either or both the fee / IHS in their application, you will need to write to the individual to obtain information on their financial situation. Once you have received this information from the applicant, you will need to complete an affordability assessment to see whether the applicant has demonstrated they cannot afford the fee. See guidance on fee waivers for more information.

So once a person has cleared the two hurdles of having the ‘no recourse to public funds’ restriction lifted and being currently in receipt of public funds, then the usual affordability test will apply as in the fee waiver guidance for human rights based claims and other specified applications.

Unless I am missing something, the last paragraph in the guidance quoted above is quite unclear, as a person cannot make the application for further leave without either already having a fee waiver or paying the fee, so I am not sure why the Home Office would be writing out at this point. If by ‘application’ they mean the fee waiver request, information on the person’s financial situation would have been provided at with the fee waiver request, so why would they need to write out for further information? It is almost as though this hasn’t all been thought through properly…

Why is this a problem?

Delays

In order to qualify for a fee waiver to extend their leave in this route, applicants need to have the ‘no recourse to public funds’ condition lifted and to be in receipt of public funds. The first problem with this process is the current and increasing delays in the processing of change of conditions applications. Delays of months are now standard, despite these being cases which frequently involve people in urgent and desperate situations.

The next requirement is that the person is in receipt of public funds. It can take five weeks for the first payment of Universal Credit.

Unless those two requirements are met, the regulations do not provide a fee waiver to be granted. Applicants will be a position where because of the rigidity of these requirements and the delays by the Home Office and the Department for Work and Pensions, they will be excluded from a fee waiver.

Exclusion from the same process as for other human rights based applications

The second problem is that this is a much harder test than just ‘affordability’ which applies in other human rights based fee waiver applications and no explanation for this difference has been provided.

The government regularly refers to this route as a “safe and legal route” a term used in the context of providing safety to those who need it as an alternative to arriving in the UK to claim asylum. Indeed, the route was announced in response to the UK government’s concerns following China’s introduction of national security legislation which enabled various human rights breaches. This is a route where human rights are clearly engaged.

The guidance ‘Fee waiver: Human Rights-based and other specified applications’ states that:

Fee waivers can be granted to those making a specified human rights application, where to require payment of the fee would be incompatible with a person’s rights under the European Convention on Human Rights (ECHR).

However applications made under Appendix Hong Kong BN(O) are not listed as one of the eligible routes to make such a fee waiver application on page 8. In order to obtain a fee waiver under this guidance, applicants need to prove affordability, as per R (Dzineku-Liggison & Ors) v Secretary of State for the Home Department (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC).

It is unclear why those applying under Appendix Hong Kong BN(O) have been excluded from this guidance in circumstances where their applications clearly engage human rights. Instead, the regulations that have been laid provide for a much more restrictive fee waiver process, which is problematic for the reasons set out above.

Conclusion

I encountered a case where this was an issue within days of the draft regulations being published and there will no doubt be many more to come, particularly in light of the recent increase to the immigration health surcharge. People’s circumstances change all the time, often without notice and sometimes just as they need to renew their grant of leave. This new policy does not take any of that into account and will risk pushing people into (further) destitution, or out of this route entirely (potentially even into the asylum system, undermining the reason this route was set up to begin with). This needs to change, and soon.

Challenges like this are not straightforward though, as where the fee waiver for further leave to remain is refused, if a person does not submit a valid application within ten days they will face losing their section 3C leave, along with their right to live and work in the UK and the full force of the hostile environment will then bear down on them. Ideally this new process would be changed without the need for someone to be put in this position, but expectations are low.