June 2, 2020

The pathway to British citizenship for European nationals in the UK

Since the Brexit vote in June 2016, many EU citizens in the United Kingdom are turning their attention to applications for British citizenship. Citizens of other countries who have been living in the UK for five years can apply to “naturalise” as British — but there are other requirements which can complicate things for people who are keen get their British passport as soon as possible.
How do you naturalise as a British citizen?

The main requirements to naturalise as a British citizen are that the applicant must be:

18 or over

of “good character”

have an intention to continue to live in the UK

meet the knowledge of English and life in the UK requirements

meet the residency requirement

Of these, it is often the residency requirement which causes the most confusion and the most problems. There are three parts to the residency requirement:

Proving you are settled
Length and legality of residence
Level of absence during the qualifying period

Because of the way that EU law and British nationality law work, there are quirks to each of these requirements which EU citizens interested in naturalising should be aware of. In particular, whether you are married to a British citizen or not makes a difference and whether you applied for permanent residence or settled status can also make a difference.
Proving you are settled

Before applying for citizenship a person must be legally settled in the UK (referred to by lawyers as being “free from immigration time restrictions”). There are two ways for EU nationals to achieve this:

Obtaining a document certifying permanent residence under current EU free movement law. This will remain possible until 31 December 2020; or
Obtaining settled status under the UK government’s Settlement Scheme.

The settled status scheme opened to the general public in January 2019 and has become by far the most common way for EU citizens and their family members to secure their immigration status in the UK. In general the settled status option will be faster, easier and cheaper for those who just want to get their right to remain in the UK sorted out, but someone who wants to apply for British citizenship as soon as possible may still wish to apply for permanent residence.

This is because permanent residence can be backdated but settled status cannot, and for some applicants being able to backdate your proof of settlement means you can qualify for British citizenship sooner. A permanent residence application can also be used to resolve any potential issues with the legality of your residence (see Legality of residence below).

The rules on qualifying for naturalisation as a British citizen are different depending on whether you are married to a British citizen or not. The rules are slightly easier to meet if you are married to a British citizen; we’ll start with the rules for those who are not.
Not married to a British citizen

Someone who is not married to a British citizen needs to show that they have been free from immigration restrictions for at least one year before applying for citizenship. Under current EU free movement law, an applicant may be able to backdate their permanent residence status and apply for citizenship as soon as they receive their permanent residence document.

That is because permanent residence is acquired automatically. A permanent residence document is required for the citizenship application, but does not grant the status. It recognises a status which was automatically acquired at some point in the past. That means that someone who receives their permanent residence document can apply immediately, so long as they have acquired the status of permanent residence at least one year previously. Colin goes into more detail on this in a previous post.

By contrast, settled status is effective from the day it is granted. That means having to wait 12 months to apply for citizenship.

Although the UK left the EU on 31 January 2020, EU free movement law will continue until 31 December 2020 (the end of the transition period). Until then, people will be able to make an application for a permanent residence document and use this to apply for citizenship. With that date fast approaching, and as yet no agreement to extend the transition period, time is running out to make use of the permanent residence route.

The requirements for permanent residence are more stringent than for settled status. You must have been working for a five-year period, which must have ended at least one year ago (this is to ensure the status can be backdated by 12 months, allowing you to apply for citizenship immediately). If you have not been working you would need to show that you have held Comprehensive Sickness Insurance, a requirement many people have had difficulty meeting in the past.

If you cannot meet the requirements for a permanent residence document but have lived in the UK for five years, then you would need to apply for settled status, wait one year, and then apply for citizenship. There is no problem doing this, and it would be simpler than the permanent residence route — just not as fast. You may, however, encounter problems showing that your residence in the UK has complied with UK immigration law (see below)
Those married to a British citizen

If you are married to a British citizen then you do not need to have been free from immigration restrictions for one year before applying for citizenship. The advantage of applying for a permanent residence document, which is that it allows you to backdate your status to a date one year in the past, is therefore unnecessary for those married to a British citizen.

As settled status is a simpler and faster process, an application for settled status followed by an immediate application for citizenship is the best course of action for anyone who is married to a British citizen and has lived in the UK for over five years.
Length and legality of residence

Now let’s look at the second element of the residence requirement: length and legality of residence.
Length

The residence periods are follows:

Anyone who is not married to a British citizen must have resided in the UK for five years prior to the date of their citizenship application.
Anyone who is married to a British citizen must have resided in the UK for three years prior to the date of their citizenship application.

This three-year residence period does not affect the separate requirement to prove that you are settled. In practice, everyone who wants to become a British citizen needs to have lived in the UK for five years, as it takes that long to get settlement.
eBook Naturalising as a British citizen: a guide

This quirk is due to British nationality law being drafted in 1981, at a time when it was possible to become settled in less than five years. Now virtually all routes to settlement require at least five years’ residence.

The residence period is always counted backwards from the date of application; it is not possible to rely on a historic period of residence. The period must start on a day you were in the UK. This means that you need to make sure that you were in the UK exactly three or five years before you apply.
Example

Samantha is not married to a British citizen. She applies for citizenship on 15 April 2020. The residence period for the purposes of her citizenship application is 15 April 2015 to 15 April 2020. She must have been in the UK on 15 April 2015.

Legality

During the three/five year qualifying period you must not have resided in the UK in breach of the UK’s immigration laws. You could be forgiven for assuming that European citizens, with the right to freedom of movement, are unlikely to breach the UK’s immigration laws.

However, EU free movement law has always required economic activity: work, job seeking, study or self-sufficiency. If studying or self-sufficient, you require Comprehensive Sickness Insurance. This is a requirement many were (potentially still are) unaware of and in practice non-compliance is widespread.

The paradoxical nature of the requirement (EU citizens are still entitled to use the NHS) and several controversial refusals in early 2017 led to the legality rule not being applied in the Settlement Scheme context.

But in May 2020, the Home Office confirmed in updated policy guidance that the Comprehensive Sickness Insurance requirement will be applied in the citizenship context. As a result, EU citizens who have not worked in the UK continuously for five years need to have held private health insurance or a European Health Insurance Card issued by their country of nationality during the three/five year qualifying period. If they do not, they are likely to be refused citizenship.

Can the Home Office do this?

This policy (although unwelcome) appears to me to be lawful. The definition of “breach of immigration laws” is surprisingly broad and includes non-compliance with the Immigration (EEA) Regulations 2016 which implement EU free movement law in the UK. A variety of cases have considered what it means to be in the UK “unlawfully” or “in breach of immigration law”, but cannot override clear statutory wording. Particularly when there has been a power to remove EU citizens who do not comply with EU free movement law since 1994 (albeit one that is rarely exercised).

This requirement will not cause a problem for:

People who have permanent residence documents already;
People who have worked for any continuous five year period in the UK and have therefore acquired permanent residence (it does not need to be the same five year qualifying period relied on for the purposes of your citizenship application; a historic period will do as long as you have not subsequently been absent from the UK for two consecutive years);
People who have been working continuously during the three/five year qualifying period prior to their citizenship application (although an earlier breach may be relevant to the good character requirement which covers the last ten years); and
People who apply for citizenship in the future, having been granted settled status after five years of pre-settled status.

This requirement will cause a problem for others, who need to rely on a period of study or self-sufficiency but lack Comprehensive Sickness Insurance. They can be granted settled status, but will encounter problems when applying for citizenship.

The Home Office recognises this problem, and suggests in its guidance to decision makers that discretion may be exercised in an applicant’s favour in appropriate cases:

Following the introduction of the EU Settlement Scheme you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. When considering such applications you should take into account all the facts surrounding such a breach and make a full assess[m]ent about whether discretion should be exercised in their favour.

One of the examples of when it may be appropriate to exercise discretion is:

the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour.

It is unclear what the last bit is supposed to mean. Saying “we will exercise discretion when there is sufficient evidence to justify discretion being exercised” is no use to anyone! Needless to say, innocent oversight or blissful ignorance will be treated more favourably than wilfully ignoring the requirement.
Absence during the qualifying period

If the person applying for naturalisation has been out of the UK for too long, their application will be rejected.

The basic rule, set out in Schedule 1 of the British Nationality Act 1981, is that the applicant must not have been outside the UK for more than 270 days in total over the three-year period for spouses or 450 days over the five-year period for non spouses, including no more than 90 days in the final year in both cases.

The Home Office will examine both the three/five year qualifying period and the final year before the application separately.
Absences in the final year

The basic rule, as we have seen, is that the applicant cannot have been outside the UK for more than 90 days in the 12 months up to the date of their application. So if applying in July 2020, your absences between July 2019 and July 2020 must fall below 90 days.

The Home Office can, in certain circumstances, grant citizenship even where the 90 day threshold has been exceeded. This can only be done where the “future intentions” requirement has been met. This is the third bullet point in our summary of the naturalisation requirements right at the start of this post: to qualify for citizenship you must intend to make the UK your home, or if you have more than one home the UK must be your principal home. This requirement is usually met without difficulty — however, significant absences during the three or five year residence period or close family living abroad can cause the Home Office to doubt an applicant’s future intentions.

The table below provides a guide for when the Home Office will consider disregarding excessive absences:
Absences Home Office approach
90 to 100 days absence in final year Home Office guidance states that absences of up to 100 days during the final year of the qualifying period will normally be disregarded.
100 to 180 days absence in final year Discretion may be exercised if the total number of absent days over the 3/5 year qualifying period is not exceeded, and the applicant “demonstrates strong links through the presence of family, employment and their home in the UK”.
100 to 180 days absence in final year

Discretion may be exercised even if the total number of absent days over the 3/5 year qualifying period is exceeded if the applicant has “demonstrated that they have made this country their home by establishing a home, employment family, property and finances in the UK” and where the absence is justified by Crown service, or “by compelling occupational or compassionate reasons”.
Over 180 days absence in final year (but the absence threshold across the 3/5 year qualifying period is not exceeded) Discretion may be exercised if the applicant has demonstrated that they have made the UK their home.
Excess absences for final year and qualifying period Discretion may be exercised only in exceptional circumstances and where the applicant has demonstrated that they have made the UK their home.

As the table shows, assuming the future intentions requirement is met the Home Office will usually grant the application where the absences are under 100 days. They will also consider granting an application where absences are between 100 and 180 days. The decision-maker will look at whether the absence threshold for the three/five year residence period (see below) has been met, consider the reason for the absences, and assess the strength of your connection to the UK to determine whether you should be granted citizenship, despite your excessive absences.

If your absences are over 180 days in the year before you apply, and you also fail to meet the threshold over the three/five year residence period, your application will only be granted in “exceptional circumstances”. It is incredibly difficult to convince the Home Office that such circumstances exists.
Absences over the whole three/five qualifying years

For the second period examined, as with the length of the residence periods, the number of absences permitted depends on whether or not you are married to a British citizen.
Not married to a British citizen

Those who are not married to a British citizen need to show that they have not been absent from the UK for more than 450 days during the five year residence period.

Again the Home Office can, in certain circumstances, grant citizenship even where this threshold has been exceeded. The table below shows how the Home Office will consider such applications:
Absences Home Office approach
450 to 480 days total absence Home Office guidance suggests that absences of up to 480 days will normally be disregarded.
480 to 730 days total absence Discretion may be exercised where the applicant has been resident for the previous seven years, without substantial absences within the first of those seven years (the two years outside the normal qualifying period).
730 to 900 days total absence Discretion may be exercised where the applicant has been resident in the UK for the previous eight years, without substantial absences within the first three of those years (the three years outside the normal qualifying period).
480 to 900 days total absence

Discretion may be exercised to waive the requirements in the following circumstances:

– absences due to posting abroad on Crown Service,

– the unavoidable nature of the applicant’s career (e.g. a job that requires regular travel out of the UK), or

– exceptionally compelling reasons of an occupational or compassionate nature to justify the application being granted, such as a firm job offer where British citizenship is a statutory or mandatory requirement.

For any exercise of discretion above 30 days, the Home Office policy states that the applicant must show that they have “established their home, employment, family and finances in the UK”.

If your absences are over 900 days it is “highly unlikely that discretion would be appropriate” and you would be better off wait until your absences fall below this threshold before applying.
Those married to a British citizen

Those who are married to a British citizen need to show that they have not been absent from the UK for more than 270 days during the three-year residence period.
Absences Home Office approach
270 to 300 days total absence Home Office guidance suggests that absences of up to 300 days will normally be disregarded.
300 to 450 days total absence Discretion may be exercised where the applicant has been resident for the previous four years, without substantial absences within the first of those four years (the year outside the normal qualifying period).
450 to 540 days total absence Discretion may be exercised where the applicant has been resident in the UK for the previous five years, without substantial absences within the first two of those years (the two years outside the normal qualifying period).
300 to 540 days total absence

Discretion may be exercised to waive the requirements in the following circumstances:

– absences due to posting abroad on Crown Service,

– the unavoidable nature of the applicant’s career (e.g. a job that requires regular travel out of the UK), or

– exceptionally compelling reasons of an occupational or compassionate nature, such as a firm job offer where British citizenship is a statutory or mandatory requirement.

For any exercise of discretion over 30 days, the Home Office policy states that the applicant must show that they have “established their home, employment, family and finances in the UK”.

If absences are over 540 days it is “highly unlikely that discretion would be appropriate” and you would be better off wait until your absences fall below this threshold before applying.
Those who have not yet reached five years

If you will reach five years’ residence before 30 June 2021, then you can apply for settled status once you have reached the five year threshold. If you will not reach five years’ residence until after 30 June 2021 you must apply for pre-settled status. Once five years has been reached you can then apply for settled status and then citizenship (immediately if you are married to a British citizen or after a year if you are not).

Further reading

There are different requirements for obtaining a permanent residence document, settled status, and citizenship. This post does not examine all of the separate requirements in detail, so some further reading may be necessary.

The requirements for permanent residence are covered in detail in a post last updated in February 2018. Nath provides details of the requirements for pre-settled and settled status in this recent piece (if criminal convictions are likely to cause an issue for you, see also Colin’s piece from February 2019).

May 31, 2020

Upper Tribunal: Policy on fee waivers is unlawful

Posted on May 31, 2020

The Upper Tribunal has declared Policy on fee waivers is unlawful

In R (otao Dzineku-Liggison) v SSHD [JR/2249/2019], the UT held that the Home Office’s policy on fee waivers, namely the Fee Waiver: Human Rights-based and other specified applications, version 3.0 (dated 4 January 2019), is unlawful. UTJ Blundell took the view that a Ghanaian family of five – mother, father and twin sons aged nine and a daughter aged five – had made a valid human rights claim but that the Home Office had denied their claim but ultimately accepted that a human rights claim can be made in a letter. The mother arrived in the UK in 2006 on a Working Holiday Maker visa with valid rights until 2008 but she overstayed. The father came to the UK on a Working Holiday Maker in May 2005 with leave to enter until May 2007 and his leave was extended until November 2007 but he also overstayed. The children were born in the UK in June 2010 and July 2014 respectively. Later in December 2018, the whole family applied for leave to remain relying on article 8 of the ECHR, providing the decision-maker with supporting evidence and a covering letter submitting that their removal would breach their Convention rights, with an emphasis on the children’s best interests as the older two children had lived in the UK for more than seven years (accordingly it would not be reasonable to expect them to leave as set out in paragraph 276ADE(1)(iv) of the Immigration Rules).

The family completed Form FLR(FP) and Appendix 1: Request for a Fee Waiver and their bank statements showed that they had no money. They said that there was no prospect of the payment for their application – £7665 with the Immigration Health Surcharge – within the foreseeable future and a fee waiver should therefore be granted. In their application form the applicants did not tick the “I am destitute” box but ticked the “I am not destitute but I would become destitute if I paid the application fee”. Also ticked was the statement that they were not destitute and would not become destitute if the the application fee was paid, however the existence of exceptional circumstances relating to their financial circumstances meant that the applicants/their dependants were unable to pay the fee for the application. The family sent a detailed covering letter and checked boxes to indicate that all sections of the form had been completed and provided all the documentary evidence required and enclosed a fully completed application for leave to remain. By way of a decision dated 25 January 2019, the decision-maker said that they did not qualify for a fee waiver as “you are not considered to be destitute, you have not demonstrated that you would be rendered destitute by payment of the fee, and it is not considered that there are exceptional circumstances in your case such that a fee waiver should be granted”.

Context

The refusal invited the applicants to re-apply for leave to remain. It also said that they could make a fresh application for a fee waiver, but that up to date evidence would be required in support of any such applications. It contained the usual hostile environment warnings such as notices about liability as to detention, prosecution, imprisonment, right to rent property, prohibition on employment and driving and payment for NHS medical treatment.

The refusal was challenged on the basis that the £7665 fee could not be paid by the family who had supplied clear evidence that they would be unable to raise the fee and therefore the decision was unreasonable, irrational and unlawful when set against the waiver guidance.

Reliance was placed in Stewart J’s judgment in Carter [2014] EWHC 2603 (Admin). The pre-action correspondence accepted that the family was not destitute but the point was made that they would become destitute if required to pay the fee or alternatively that they met the third limb of the prescribed test of “exceptional circumstances” that justified the grant of a fee waiver. A detailed appraisal of their financial circumstances was conducted and it was submitted that no reasonable Secretary of State could have concluded that the “exceptional circumstances” limb of the policy did not apply.

A breach of the section 55 duty was also asserted. The reply to the pre-action letter opted to maintain refusal and was dismissive of the claim and proceedings were issued and the UT granted permission on the papers after an amendment to the grounds which were (i) first the Fee Waiver guidance, version 3, was unlawful in that it failed to implement the decisions in Omar [2012] EWHC 3448 (Admin) and Carter, and presented unnecessary obstacles to an individual’s right to be granted leave to remain under article 8, and also contravened section 55, and (ii) second that the decision on the facts was unlawful since the decision-maker had failed to ask the correct question, which was whether the present applicants could in practice pay the fee and the decision-maker could not rationally conclude, on the facts, that the applicants were able to do so.

Notably, Carter and Omar were particularly relevant to UTJ Blundell’s assessment of the lawfulness of the current Fee Waiver policy. In Omar the applicant had been granted discretionary leave in the UK after commencing his judicial review challenge. Beatson J did not accept that this grant had rendered the claim academic because, in particular, the question of whether a discretion to waive the fee must exist in law remained outstanding. He concluded that since there was no provision for waiver and an application without a fee was “not validly made” and the regulations had to be read subject to a qualification that the specified fee is not due where to require it to be paid would be incompatible with a person’s Convention rights. Omar had triggered the first of three Fee Waiver polices in September 2013 and, in line with section 95 of the Immigration and Asylum Act 1999, the test for granting a fee waiver permitted applicants to qualify for a waiver “only where they can demonstrate on the basis of evidence provided that they are destitute, or where there are exceptional circumstances.”

Carter concerned a challenge to the 2013 policy and the decision-maker refused to waive the fee for the claimant’s human rights application (which was £578) as he lived with his grandmother, who gave him £20 per week spending money and it was said that he had failed to meet the definition of destitution and was not eligible for a fee exemption. Two major problems with the policy were identified by Stewart J. The first (“the narrow point”) was that there was an internal inconsistency in the policy, whereby a person in receipt of NASS support because they were destitute would be in a preferable position to a person who was not destitute but who had no greater ability to pay the fee than the recipient of NASS. Furthermore, the second problem, which Stewart J described as “the wider point”, was that if a person demonstrates upon proper proof that they cannot pay the fee, then a policy which does not provide for any waiver in those circumstances is incompatible with a Convention right. Stewart J went on to hold that it was not a question of the individual being rendered destitute by paying the fee since “such a person would not be able to get their hands on the hundreds of pounds necessary to pay the fee”.

The government’s position was in contradiction to the exceptional circumstances policy, the introduction to the policy, or the rubric on the application form – which referred only to destitution. The position was also provided an unsatisfactory answer to the position of the person who was not in receipt of NASS support but who was no better off than a recipient of that support. Stewart J declared that the policy was unlawful as the decision to refuse to waive the application fee based on the destitution criteria and exceptional circumstances (as described in paragraph 7 of the 2013 Directions) is incompatible with the article 8 rights of a person who is within the jurisdiction and who has an arguable private/family life within article 8(1) of the ECHR. The government failed to pursue an appeal despite being granted permission by Stewart J and instead it issued an amended version of the guidance (version 2.0) which was superseded by the version 3.0 guidance which was the focus of the present judicial review proceedings.

The Upper Tribunal

Carter and Omar were acknowledged in the version 3.0 guidance and the judicial review claim focused on pages 13-24 of the guidance. UTJ Blundell considered the layout of the guidance and the differences in font size in the points made to be suspicious. It stated that in order to receive a fee waiver, the applicant “must qualify on the basis of one of the three definitions”, namely that (i) the applicant has demonstrated, by way of evidence, that they are destitute, (ii) the applicant has demonstrated – by way of evidence – that they would be rendered destitute by payment of the fee, (iii) where the applicant provided evidence that, although none of the destitution criteria apply, there are exceptional circumstances in their case that justify the grant of a fee waiver.

The government was “constrained to accept” that “the structure of pages 13-14 is rather confusing”. UTJ Blundell conducted a very detailed rundown of the 27 pages of the single-spaced typed version 3.0 guidance at paras 46-54 of his judgment providing focus to the highlighted and hyperlinked aspects of it. The relevant official in the Home Office, one Mr Gallagher, provided a detailed statement explaining that the aim of the policy is to allow article 8 rights to be formally considered and to avoid an applicant whose article 8 rights are engaged becoming unlawfully present in the UK where they are unable to pay the fee.

Four points were said to represent common ground between the parties. First of all, the applicants were liable (unless eligible for a fee waiver) to pay a total of £7,665 for their applications including the Immigration Health Surcharge (IHS), liability for which stood or fell with their liability to pay a fee. Second, following Omar and Carter, the test to be applied when a fee waiver is sought is whether the applicant can afford to pay the fee (the “affordability test”): as it was put in Carter at [27], the issue is whether the individual can “get their hands on the [sums of money] necessary to pay the fee.” Third, a sub-set of the affordability test is whether an applicant will be destitute (as defined in law) as a result of paying the fee (the “destitution test”); however, the destitution test is not the ultimate question to be asked, i.e. a person who is destitute will be unable to afford the fee and thus entitled to a fee waiver, but the enquiry does not stop there, because a person who is not destitute may nonetheless be unable to “get their hands” on the money for the fee. Fourthly, the family could not be removed without consideration of their human rights.

Four key submissions were made to the UT. Firstly, whether the 2019 guidance is consistent with the decisions in Omar and Carter. Whether the decision in this particular case actually applied the affordability test. In the event that the court concluded that the decision-maker applied the affordability test, the question posed is whether the decision-maker reasonably concluded that the applicant had not shown that they could not afford the fee. The fourth question was whether it is an answer to the applicant’s case to submit, as the Home Office did with reference to Ahsan [2017] EWCA Civ 2009, they could have made (or could in the future make) a human rights claim by way of written submissions without making a formal application for leave to remain and the relevant fee. All these questions were answered in the negative by the family.

The government submitted that the guidance is consistent with the authorities, which were expressly taken into account in formulating it. Stewart J’s concerns in Carter were fully addressed by the version 3.0 of the guidance which is clear that the underlying question is whether the applicant is able to pay the fee. In relation to the second and third questions, the argument was made that the decision properly applied the test found in the authorities and that the decision-maker reached a lawful decision in light of the absence of adequate evidence provided by the family. Finally, it was said that Omar and Carter were old authorities and it was necessary to consider Ahsan, Shrestha [2018] EWCA Civ 2810 and Balajigari & Ors [2019] EWCA Civ 673 (discussed here and here). The government’s contention was that it could not properly be argued that the decision to treat the family’s applications as invalid was incompatible with article 8 because of the fact that they would not be removed from the UK until their rights under the ECHR had been considered.

The government resorted to muddying the waters by producing a note (inaccurately drafted) but UTJ Blundell would have none of it. His attention was drawn to Mujahid [2020] UKUT 85 (IAC) and MY (Pakistan) [2020] UKUT 89 (IAC) (discussed here), the latter case was said to support the argument advanced with reference to Ahsan. However, the UT said that this case was not one “in which there is any disagreement between the parties regarding the correct approach to the interpretation of the Fee Waiver Guidance.” The UT flagged up the approach articulated by Chamberlain J recently in Ellis [2020] UKUT 82 (IAC) that it is for the courts to interpret such extra-statutory policies, in line with the objective meaning that a reasonable and literate person would ascribe to them. Even the Home Office did not contend otherwise and accepted that it was for the court to decide whether the guidance accurately reflected the law and UTJ Blundell said this:

77. Adopting that approach, I consider there to be fundamental difficulties with the Fee Waiver guidance. The first is that it does not expressly state what is accepted on both sides to be the underlying test from Omar and Carter, which is whether the applicant is able in reality to afford the fee (helpfully labelled “the affordability test” by Mr Mackenzie).

The Home Office accepted that it was common ground that “the affordability test” was the yardstick by which eligibility for a fee waiver is to be gauged. The policy mentioned Omar and Carter and the government said in evidence that the intention was to tailor the guidance so as to take account of what was said by Beatson J and Stewart J. However, contrary to the submissions in the Home Office’s skeleton argument the guidance does not make clear at any point that the “underlying question” is whether an applicant can afford the fee. Bearing this in mind the government accepted that there is no express statement at any point in the lengthy guidance that affordability is the underlying question and UTJ Blundell held:

78. … The nearest the guidance gets to such a statement is the reference at the start of the document to an applicant’s ability to pay being taken into account. That is to relegate the overarching question to a material consideration. I consider the absence of a clear statement of the underlying test to be an important omission; the provision of a detailed analytical framework is unlikely to assist a caseworker who is not squarely directed to the underlying question which they are required to consider. Those tasked with applying this guidance are not lawyers. They are not expected to have familiarised themselves with the decisions from the Administrative Court. In the absence of an express statement of the underlying test, there is every danger that it will not be understood.

UTJ Blundell recalled that no doubt existed that pages 13-14 of the guidance is “confusing” and given the haphazard nature of its drafting he took the view that “the three tests (which might conveniently be labelled ‘currently destitute’, ‘rendered destitute’ and ‘exceptional circumstances’) are set out but the text which appears under the sub-headings does not consistently relate logically to those tests.” Moreover, the government admitted that the guidance on “exceptional circumstances” had appeared to relate entirely to the second question. The guidance on the third test was unclear and it was only accessible through a hyperlink and the result was “that the reasonable and literate reader of the policy is likely to be confused by this important introductory section of the guidance.” He said that:

94. … The evidence which had been presented was sufficient, on any rational view, to establish that the applicants were unable to pay a combined application fee of nearly £8000 from their own resources.

He also rejected the government’s reliance on Ahsan, Shrestha and Balajigari and agreed with the family’s submission that it was just a reworking of a submission which had been rejected long ago by Beatson J in Omar. The UT rejected the argument that the family had made a human rights claim which fell not be considered forthwith but at some point prior to removal. The point failed to affect the type of relief which would ordinarily flow from the conclusions the UT reached on the guidance the decision in the family’s individual cases. UTJ Blundell pointed out that Beatson J said it was “deeply unattractive” for the government to argue that the Home Secretary could grant leave of her own motion after someone had waited for her to do so after committing a offence under section 24 of the Immigration Act 1971, keeping in mind that waiting for a decision to be taken would confine the subject claimant to what was in essence a “half- world” or “limbo”. Beatson J rejected the idea that it was always mandatory for an article 8 claim to be made using a formal/paid application on a specified application form. Any alternatives to raising an article 8 claim did not provide an adequate solution for an impecunious applicant who sought to regularise her/his status.

In the instant proceedings, the family tried to regularise their position in the UK by trying to make an application for leave to remain. These efforts were stymied owing to the operation of an unlawful policy on fee waivers at variance with the affordability test. The result was that they had to wait for a decision that the executive nevertheless accepted to have been a valid human rights claim and in the intervening period, they continued to be subject to the hostile environment. In light of JCWI [2020] EWCA Civ 542 (discussed here), the UT said that the “half-world” contemplated by Beatson J became “even less of an existence, and it is a position to which these applicants (adult and child alike) are confined by the unlawfulness of the respondent’s actions.” Therefore, on the section 55 duty, UTJ Blundell held that:

119. … It is difficult to see how that the respondent can be said to have regard to her statutory obligation to safeguard and promote the welfare of children when children such as the third, fourth and fifth applicants are confined to the hostile environment as a result of the respondent’s adoption and application of a fee waiver policy which fails to reflect the affordability test properly or at all.

Admittedly the family life was founded without lawful status but the parents did attempt to address this by making an immigration application which should have been considered at the public’s expense if their request was genuine. UTJ Blundell further held that:

119. … It is the erection of an improper obstacle to that consideration, in the form of an unlawful policy, which means that the children are not entitled to consideration of their applications ‘forthwith’ and must instead wait for consideration of their human rights claims in the fulness of time.

120. … If it is to be submitted that individuals who have not made an effective application for leave to remain on human rights grounds are protected from removal because they have nevertheless made a human rights claim, that protection must not be arbitrary or elusive. It is necessary to recall the point in time at which it was made clear to these applicants that they were accepted to have made a human rights claim which safeguarded their position. That was not said in the decision under challenge. In fact, they were given precisely the opposite indication, with the decision stating that they were liable to be removed from the UK.

Prior to lunch on the day of the hearing date, nothing in writing accepted that the family had made a human rights claim (a suspicious feature of the present litigation shared with similar cases) and the response to the pre-action letter, the summary grounds and even the skeleton argument failed to state that the family was accepted to have made a human rights claim. All this led UTJ Blundell to remark:

121. This seems to be a feature shared with the reported decisions I have considered above. It was seemingly only in the course of litigation before the Court of Appeal in Ahsan and Shrestha that the respondent accepted in terms that the applicants in those cases had made human rights claims which engaged section 113 of the 2002 Act.

He then embarked upon the implications of this double game played by the government on applicants who must be given legal advice. They are prima facie being told that they must leave the UK as they have not made a human rights claim and have not validly made any immigration application which meant that they had no idea what was going on. There was no way for them to know whether the decision-maker accepted that they had made a human rights claim or not. There was a mixture of internal and external clarity on this point which was deeply concerning. The uncertainty was too great and UTJ Blundell remarked:

123. … Individuals such as the applicants find themselves in an uncertain situation upon receipt of a notice such as the decision under challenge. They have received no chit reassuring them that their human rights claim will be considered and that their position in the UK is protected until then. They cannot know with any degree of accuracy whether they are accepted by the respondent to have made a human rights claim or not. … It is wholly unclear to me why it was that the respondent only accepted at the eleventh hour that a human rights claim had been made in this case. Nor do I understand the point at which the respondent recognised that there had been a human rights claim.

The UT found that series of important questions remained unanswered. The late disclosure of the acceptance of a human rights claim created ambiguity about whether removal would not be effected if the judicial review claim was not underway. This led to a further point on the manner in which the Home Office records applications for leave to remain and human rights claims. The family’s application was rejected as invalid for want of the requisite fees and notified of their liability as to removal but if this is not the real position then a problem arises about how this is reflected internally. When asked how this is identifiable to the next decision-maker who might come to consider the cases, pre-removal, months or years later, but the Home Office was unable to answer the point. While there is no external acceptance, communicated to the applicant, that there is a “barrier to removal” nothing on the internal system identifies the real situation on the extant human rights claim and when pressed on the point by UTJ Blundell, Sir James Eadie QC “was unable to give any indication of the mechanism by which this identification might take place.” The remainder of the judgment really is priceless and refreshing analysis from UTJ Blundell, as he said:

125. It would be all too easy, in my judgment, to dismiss these concerns by stating that there is a record, not only in the respondent’s note but also in this judgment and in the files of the applicant’s solicitors, to show that the respondent has accepted that these applicants have made a human rights claim and that they cannot be removed until it has been considered. In this case, that is undoubtedly correct.

Had enforcement action been taken against the family without considering the claim which came to be accepted to have been made, their solicitors would resist that. On the other hand, UTJ Blundell pointed out that:

125. … But there will be many such cases in which potentially vulnerable applicants are not legally represented and it cannot simply be assumed, in the absence of any indication about the mechanism for identifying such cases, that the human rights of individuals in this position will be safeguarded by their having made a human rights claim at some point previously.

Nothing in Ahsan, Shrestha and Balajigari changed that. Indeed Omar and Carter remained good law and UTJ Blundell said this:

126. … If, as I have concluded, the respondent’s policy on fee waiver is unlawful, it is no answer to submit that an applicant whose application for leave to remain is improperly rejected in reliance on that policy might nevertheless wait for the respondent to consider her human rights claim in the fulness of time. Such a solution confines an applicant to the hostile environment improperly and indefinitely, which is unjustifiable in the case of an adult applicant and contrary to the best interests of a child applicant.

Inevitably, the Home Office needs to demonstrate that a person whose application for leave to remain is rejected is nevertheless protected effectively from removal by accepting that a human rights claim was made within the meaning of under section 113 of the 2002 Act. The ambiguous nature of how the acceptance was recorded in the internal record and, if it is, at what stage and how led UTJ Blundell to hold:

126. … If the respondent’s submission is that decisions such as the present can never be incompatible with the ECHR because individuals such as the applicants will not be removed without consideration of their human rights, the evidence before me does not support the existence of that protection and the respondent’s late adoption of that stance in this case and others calls it positively into question.

Overall the dispute over whether the Home Office had changed its position in relation to the making of a human rights claim since Shrestha and MY (Pakistan) – the government said it had not changed its position – was irrelevant because of the conclusions drawn by the UT.

Comment

The Home Office lost on the short point that both the policy and the individual decision correctly applied the broad test of whether it was possible for the family to pay the fees (as opposed to arguing that whether they were destitute). The outcome in these judicial review proceedings potentially bear fruit for people who have no money to pay for the extortionist fees that are charged by the Home Office, to which the UT granted permission to appeal.

UTJ Blundell declared that the policy is unlawful and he found that text used in the policy is likely to lead the reader to think that mere inability to pay the fee was not sufficient for someone to qualify for a fee waiver. The idea that the family was in a position to borrow £7665 for the application fees was also roundly rejected. Of further interest is the official concession by the government before the UT that it is wholly unnecessary for a person to make a charged application or use a specified application form in order to make a valid human rights claim. Instead, it accepted that the Liggison family had made a legitimate human rights claim by only sending a letter setting out the grounds on which they wanted to remain in the UK and this was so despite the fact that the Home Office denied until the eleventh hour that they had made a valid human rights claim at all. As examined at length above, UTJ Blundell was not at all impressed with these wasteful tactics which Sir James Eadie QC was unable to justify.

Interesting information in the public domain shows that between January 2015 and June 2019, 24,370 people were refused permission for a fee waiver on their visa applications by Home Office decision-makers. However, this judgment may have the effect of reversing this trend. It is also the case that because of the pressure of the COVID-19 crisis, Boris Johnson was forced to axe the NHS surcharge for migrant health and social care workers because of their contribution to the UK. Despite his reluctance to scrap these extortionist fees, Johnson ultimately had to capitulate to growing public pressure and a potential rebellion in his own party.

May 22, 2020

Court rules bar set too high for NHS surcharge and visa fee waivers

Tribunal says if migrants can prove they cannot pay fees then they should not have to do so
A court ruling has given hope to thousands of migrants, including health and care workers, that they will no longer have to pay visa and NHS surcharge fees if they cannot afford them.

An immigration court found that the Home Office was applying too harsh a test on whether people should be forced to pay.

It comes as Boris Johnson faces growing pressure to scrap the health surcharge for migrant health and social care workers in light of their essential role during the coronavirus crisis.

Although the Home Office has granted a free one-year extension to visas for migrant health and social care workers – a move estimated to benefit 3,000 workers – they will be expected to resume payments thereafter.
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The ruling on Wednesday in the upper tribunal of the immigration and asylum chamber focused on the issue of fee waivers for visa applications. The NHS surcharge forms part of this application.

Under Home Office rules, a fee waiver is possible if applicants can prove they are destitute. But many impoverished migrants fall short of the high bar for that status.

The court ruled that the Home Office was applying the wrong test for whether or not people should have to pay thousands of pounds for their visas and NHS surcharge. Instead of the destitution test, the court said the Home Office should be applying a test of whether applicants could afford to pay the fees, and if migrants could prove they did not have the income to pay then they should not have to do so.
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The case was brought by a family of five who have not been able to regularise their immigration status because they cannot afford the fees. They cannot afford to pay because they are not allowed to work because they have been unable to regularise their immigration status.

The parents arrived in the UK on work visas from Ghana in 2005 and 2006. Their three children – twin boys aged nine and a daughter aged five – were all born in the UK.

The Home Office asked the family to pay £7,665 in visa fees and the health surcharge, even though the family produced evidence to the court of having just one penny in their savings account. The Home Office said they did not meet the destitution test because a friend was giving them accommodation and they were getting basic support to survive from their church and a food bank.

A freedom of information response from the Home Office showed that between January 2015 and June 2019, 24,370 people were refused permission for a fee waiver on their visa applications. Some of these may qualify for a visa waiver in the light of this judgment, and there are likely to be many others who have not yet applied and would be eligible.

Saul Stone, a solicitor at Duncan Lewis, said: “This is a landmark judgment which will provide some reprieve to the thousands of people who apply for waivers of extortionate Home Office fees each year.

“This group is likely to include many low-paid migrant NHS workers who have been unable to demonstrate that they are destitute but nevertheless cannot afford the fees required to apply to stay in the UK. If you are granted a fee waiver for your immigration fees, you are also granted a fee waiver for the health surcharge – it goes hand in hand.”
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The Home Office was given permission to challenge the ruling at the court of appeal. It has been contacted for comment.

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