Fee Waivers and Human Rights Applications

The Home Office has a policy which allows applicants to apply for a waiver from the fee that accompanies human rights applications. This blog considers some of the recent issues relating to fee waiver applications both in country and for entry clearance applications.

 An applicant can apply for a fee waiver of both the application form fee and the immigration health surcharge and the fee waiver can be applied to both or to either.

The ability to apply for a fee waiver is critical for some applicants. The cost of a human rights application for further leave to remain is £1048, for entry clearance £1538 and the Immigration Health Surcharge costs £1560 for an adult when applying for further leave to remain or £1872 for entry clearance. Many applicants would be prevented from making these applications without the right to apply for a fee waiver.

The policy for in-country applications can be found here. An applicant applies for a fee waiver on a digital application and when the outcome of the fee waiver request has been received the applicant then submits their online application for further leave to remain.

In country fee waivers only apply to applications for further leave to remain rather than indefinite leave to remain although interestingly, the guidance does state that: "those who make an application for limited leave to remain may request a longer period of limited leave than would normally be granted, or ILR, and where full reasons are provided for why this is appropriate in their case this will be considered". So whilst fee waivers only apply to applications for further leave to remain the Home Office can exercise discretion and grant indefinite leave to remain. 

There have been a number of legal challenges to the fee waiver policy. The case of R (Dzineku-Liggison) v Secretary of State for the Home Department [2020] UKUT 222 (IAC) challenged the then fee waiver policy which required an applicant to demonstrate that they were destitute. The Home Office conceded that in fact the correct test is the "affordability test" and the Home Office guidance was amended so that the test is "the sole consideration on whether someone is eligible for a fee waiver is an affordability test to assess whether the individual has credibly demonstrated that they cannot afford the fee. This applies when the applicant does not have sufficient funds at their disposal, after meeting their essential living needs, to pay the fee".  The guidance goes on to say that fee waivers should be granted if the applicant has "credibly demonstrated that they meet the affordability test or are destitute or at imminent risk of destitution". The guidance also notes the need to "safeguard and promote the welfare of a child in the UK should be a primary consideration in deciding any claim".

The policy has been in the spotlight again following a recent judicial review challenge which has resulted in the Home Office agreeing to review its policy. When a fee waiver is granted an applicant must submit their application for further leave to remain within a certain timescale. If they fail to do so, they can become an over stayer and lose their permission to work. The time limit is 10 days, but the policy and Immigration Rules are not clear on whether this is calendar days and from what date the time limit runs. The claimant in the judicial review found that he had lost permission to work because the Home Office maintained that the 10 day time limit had not been complied with.

The Home Office was also challenged in relation to its policy on fee waiver applications made for entry clearance applications. The Home Office position used to be that applicants outside the UK could only be granted a fee waiver in "exceptional circumstances". Following challenges, the Home Office introduced new guidance for fee waivers on overseas human rights based applications and the guidance can be found here. Like in country applications, the test is "affordability" and whether the applicant and their sponsor "do not have sufficient funds at their disposal, after meeting their essential living needs to pay the fee". Like the in country guidance, it also sets out the Section 55 duty to consider the best interests of a child when making any decision on an application for a fee waiver. If a fee waiver is granted, the applicant will be sent a code to use when making their online entry clearance application which must be submitted within 28 calendar days of the date of the fee waiver decision. 

The team at Drummond Miller can advise on all aspects of human rights applications and fee waivers and so do please contact us if you are looking for advice.