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27 May 2020

Home Office Fee Waiver Policy declared unlawful

3 mins

The Home Office charges people a lot of money if they want to enter or stay in the UK.  A standard in-country application fee costs £1,033 per person.  On top of this each applicant has to pay the Immigration Health Surcharge, an additional fee brought in to supposedly cover any costs a migrant might incur by using the NHS.  This has recently been scrapped for NHS staff. The Surcharge is currently £400 per person per year and is shortly set to increase to £624 later this year.   Most in-country grants of limited leave to remain (for example, as a family member of a British citizen) are for 2 ½ years, meaning that for each application made the Surcharge will be calculated as £1,000 per person to cover the entire 2 ½ year period.  For a family of 4 applying together this means that their total fees would be over £8,000.   Coming up with £8,000 every 2.5 years is beyond the reach of a significant number of families. The Home Office therefore allows for ‘fee waiver’ applications to be made.  If you can convince the Home Office either that you are destitute or would become destitute if you had to pay the application you might be lucky enough to have your fees waived.   However, many people fall in between the extremes of having a spare £8,000 and being destitute.  It is these families who, until a very recent decision in the Upper Tribunal, were routinely being refused a fee waiver.  This meant that they would be faced with the bleak options of having to leave the UK, losing their jobs and pulling their children out of school or going into debt.  For a family on a low income a debt of £8,000 is hugely significant and unlikely to be paid off in 2 ½ years, leading to the impossible prospect of having to go further into debt each time an application had to be made.     The good news is that in a judicial review challenge brought on behalf of a family of five, the Upper Tribunal found that the ‘destitution’ test was unlawful.   The case is Liggison v Secretary of State for the Home Department JR/2249/2019.  Thankfully, the Upper Tribunal has applied some practical common sense to the Home Office policy on fee waivers and found it to be unlawful, as it leads to the conclusion that just because someone cannot afford the fee does not mean they should be given a fee waiver.    The Home Office has been granted permission to appeal this decision to the Court of Appeal but it is to be hoped that the Court of Appeal will agree with the Upper Tribunal.  A change in the current guidance would mean thousands of migrants and their families would be able to extend their lawful grants of leave to remain here without falling into unmanageable debt. 

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