In UK immigration, getting the right to stay is usually very expensive. For many people, the cost of getting permission to remain can be very expensive, reaching almost £2,600 for a standard two-and-a-half-year stay. This includes application fees, Immigration Health Surcharge, English language test expenses, and often legal representation. The weight of the financial cost can be overwhelming, especially for those with limited means. Still, there’s a glimmer of hope in the form of fee waivers for some immigration applications. In this guide, we will look at the specifics of in-country fee waivers, explore who qualifies for them, and the Home Office’s guidelines governing these waivers.
Background to the Policy on Fee Waivers: Case Law
Three significant legal cases form the basis of the Home Office’s policy on fee waivers for human rights-based immigration applications. These cases have played an important role in shaping the guidelines for fee waivers.
R (Omar) v Secretary of State for the Home Department [2012]
In this case, the High Court ruled that charging a fee for a human rights-based immigration application would break the human rights law if the applicant cannot afford the fee. This decision underscored the duty of the Secretary of State to interpret rules in light of the Human Rights Act, ensuring that fees do not infringe on an individual’s Convention rights.
R (Carter) v Secretary of State for the Home Department [2014]
Mr. Justice Stewart, in this case, emphasized that if an applicant demonstrates an inability to pay the fee with the right proof, the Home Office must provide for a fee waiver. When an applicant lacks the financial means to pay the fee and has a human rights claim, the Secretary of State must waive the fee.
R (Dzineku-Liggison & Ors) v Secretary of State for the Home Department [2020]
This case became necessary due to missing information in the Home Office policy. The Home Office concentrated on whether the applicant might run out of money by paying the fee rather than evaluating the applicant’s ability to afford it. The Upper Tribunal clarified that the correct test for fee waivers is affordability.
Who Can Qualify for a Fee Waiver?
Based on the case law mentioned above, only those who assert a human rights claim will be eligible for a fee waiver. Importantly, this human rights claim must be enough basis for their application. The following categories of applications are eligible for in-country fee waivers:
- Partners can apply for permission to stay under the five-year route without needing to meet the minimum income threshold if the sponsor receives specified benefits, and they can prove that the sponsor can adequately support them.
- Applications for permission to stay under the five-year parent route.
- Applications for permission to stay under the five-year private life route.
- Applications for permission to stay under the ten-year partner, parent, or private life route, where the refusal of the application would breach Article 8 of the European Convention on Human Rights.
- Applications for permission to stay based on other European Convention on Human Rights (ECHR) rights, provided that human rights constitute a substantial basis of the claim.
- Applications for further permission to stay from applicants granted Discretionary Leave following the refusal of asylum or humanitarian protection, where refusal of permission would breach their ECHR rights.
- Applications for further Discretionary Leave from victims of trafficking or slavery with a positive conclusive grounds decision, who have accrued 30 months’ Discretionary Leave and seek an extension related to trafficking or slavery.
- An applicant can pay their fee while applying for a fee waiver for one or more dependents and some applicants may request a waiver of the Immigration Health Surcharge only, not the main application fee, if they can only afford one of the two.
Criteria to Be Granted a Fee Waiver
- They cannot afford the fee.
- They are destitute.
- They are at risk of imminent destitution.
- Their income is insufficient to meet a child’s particular and essential additional needs.
Affordability plays a crucial role, and we consider applicants incapable of paying the fee when they don’t have enough funds left after covering essential living expenses like housing and food. Destitution, or the risk of it, is still a consideration, particularly if the applicant faces a lack of money within the next three months or if paying the fee would lead to not having money.
How Does the Home Office Consider Applications for Fee Waivers?
Affordability and Destitution
Post the Dzineku-Liggison case, the Home Office has shifted towards a more lenient approach in checking fee waiver applications, aligning with the legal requirements. The primary focus remains on affordability, and we deem an applicant unable to pay the fee when they lack funds for essential living needs, regardless of destitution status.
“Child’s Particular… Needs”
If applicants can demonstrate that they cannot afford to meet the needs of children with additional needs due to low income, they may receive fee waivers. If paying the application fees would prevent them from providing for the child’s essential needs, a fee waiver is justified. Considerations include parental support, the child’s ability to participate in school activities, and specific needs related to protected characteristics like disabilities.
Assessing “Surplus Income”
This refers to money remaining after covering accommodation and essential living needs. The Home Office considers various income sources and assets during this assessment. This includes income from family or friends, expenditure on personal possessions, and even income from unlawful employment. Applicants may be required to liquidate assets if they hold items of value or income sources that could cover the fee.
Essential living needs encompass utilities, food, clothing, toiletries, non-prescription medication, household cleaning items, and travel and communication for maintaining social, cultural, and religious life. Applicants are expected to spend within the parameters of what the Home Office deems “essential.” Extravagant or excessive spending may lead to a fee waiver application refusal.
We encourage applicants to prioritize the Home Office fees and to limit expenses to what the Home Office considers essential.
Apply and include the necessary evidence.
You submit fee waiver requests online, separate from the permission-to-stay application. The applicant has the responsibility to demonstrate their eligibility for a fee waiver by providing credible evidence. The evidence should cover various aspects of their financial circumstances:
- Income, including payslips and bank statements
- Accommodation details, such as tenancy agreements
- Contribution towards essential living needs
- Additional support from family, friends, or charities
- Involvement of local authorities in providing support
- A breakdown of the six months leading up to the application
- An explanation of any unusual expenses
In cases where official evidence like bank statements is unavailable, applicants should explain why. Evidence of flexibility may be exercised in exceptional circumstances when applicants provide clear and compelling evidence of their circumstances and an inability to apply for leave to remain without a fee waiver.
What Happens After the Fee Waiver Application Is Submitted?
Application Is Granted
When the authorities grant an applicant a fee waiver, they issue a Unique Reference Number for the applicant’s online permission-to-stay application. The applicant must submit this application within ten working days. Subsequently, the applicant should schedule an appointment at a Service and Support Center within 17 working days. However, applicants may be exempt from in-person appointments if their fingerprints are reused.
Failure to obey these timelines may necessitate a new fee waiver application, which can lead to overstaying. Travel assistance may be available for certain eligible applicants.
Application Is Refused
Applicants who have valid leave at the time of applying for the fee waiver will have ten working days to submit additional evidence demonstrating their eligibility for the fee waiver. If the new evidence satisfies caseworkers, they will grant the fee waiver, and applicants will then have ten additional working days to submit their permission-to-stay application.
If caseworkers remain unconvinced by new evidence, applicants must apply for permission to stay and pay the application fee within ten working days. Failure to do so may result in overstaying.
Applicants must exercise caution when providing information to avoid refusal based on false or incomplete details, as this can affect current and future applications and may lead to enforcement action.
How Good Is the Policy?
In recent years, policymakers have significantly improved the fee waiver policy, giving hope to those who cannot afford immigration fees. These positive changes align with legal requirements, making fee waivers more accessible.
However, challenges remain. Applicants must still disclose and justify their expenditures, including what the Home Office considers as “extravagant.” The online-only application process may pose difficulties for destitute applicants without computer access. The complexity of fee waiver applications may require legal representation, adding to the cost.
In summary, in-country fee waivers provide a lifeline for individuals facing financial barriers to legal immigration status in the UK. While improvements have been made, there is room for further streamlining and accessibility enhancements in the process. Ultimately, fee waivers serve as a vital tool for promoting fairness and inclusiveness in the UK’s immigration system.
This comprehensive guide has looked at the complexities of in-country fee waivers, their eligibility criteria, and the Home Office’s guidelines for assessment. Fee waivers, though not a universal solution, give a ray of hope to those facing financial difficulties in their pursuit of legal immigration status in the UK.
In conclusion, immigration is very expensive but in-country fee waivers can be a lifeline for those seeking to remain in the UK on human rights grounds. Understanding the criteria, providing the necessary evidence, and navigating the application process are important steps for those who may qualify for fee waivers. While these waivers are not a silver bullet, they represent an important aspect of promoting equitable access to the UK’s immigration system.
