June 1, 2022

Fee Waivers for UK Immigration Applications: Part 1

This is a two-part post that explains fee waivers the Home Office can grant for certain in-country immigration applications, where you apply from within the UK.

Part 1 covers what fee waivers mean in the context of UK immigration applications, which immigration applications are eligible for fee waivers and how to apply for a fee waiver.

Part 2 will cover the requirements of a fee waiver application, the supporting evidence you need to submit with your application and what happens if your fee waiver request is granted or refused.

What Is a Fee Waiver for an Immigration Application in the UK?

A ‘fee waiver’ is when you are not required to pay the full amount of a fee or the amount you have to pay is reduced. You can request a fee waiver for certain immigration applications. If your fee waiver application is successful, the Home Office will grant you a ‘fee waiver’, which means you will not have to pay for:

The whole amount of your immigration application, which is the application fee and Immigration Health Surcharge. If you are unable to pay the application fee, the cost of the Immigration Health Surcharge will be waived automatically. If you are extending your visa or switching to a new one, you will normally be required to pay £19.20 to provide your biometric information–this cost is included within the cost of the application fee and therefore will also be waived if you apply for a fee waiver for the ‘whole amount’ of your immigration application; or
The cost of your application’s Immigration Health Surcharge only (if you can afford the application fee but not the Immigration Health Surcharge).

If you can afford your own immigration application fee and Immigration Health Surcharge but you have dependants who also need to make an immigration application with you, you can request a fee waiver for your dependants’ immigration application fees and/or Immigration Health Surcharge. The fee waiver application form will ask you to specify which dependants require a fee waiver and which do not.

Which Immigration Applications Can You Request a Fee Waiver For?

Home Office Guidance, entitled Fee waiver: Human Rights-based and other specified applications, Version 6.0, published on 08 April 2022, confirms you can apply for fee waivers for the following in-country immigration applications, where you would be applying from within the UK:

Applications for leave to remain under the 5-year partner route, where you are not required to meet the minimum income threshold because your sponsor receives one or more specified benefits and where you instead need to demonstrate that your sponsor can provide adequate maintenance.
Applications for leave to remain under the 5-year parent route.
Applications for leave to remain under the new 5-year route being introduced under the Private Life Rules.
Applications for leave to remain under the 10-year partner, parent or private life route, where you claim a refusal of that application would breach yours (or other specified persons) right to respect for private and family life under Article 8 European Convention on Human Rights (ECHR).
Applications for leave to remain on the basis of other ECHR rights.
Applications for further leave to remain where you have been granted discretionary leave following the refusal of asylum or humanitarian protection and where you claim a refusal to grant further leave to remain would breach your ECHR rights.
Applications for further discretionary leave from victims of trafficking or slavery who have a ‘positive conclusive grounds’ decision from a competent authority of the national referral mechanism and where you have already accrued 30 months’ discretionary leave, and are seeking an extension to your leave for reasons related to trafficking or slavery.

When Should You Apply for and Submit a Fee Waiver Request?

Applying for a fee waiver if you already have leave to remain

If you currently have valid leave to remain and you want a fee waiver for an application to extend your leave to stay with the same family member, according to this information on ‘Requesting a fee waiver’ on the GOV.UK website, you should not apply for a fee waiver until you are within 28 days of your leave expiring.

Submitting your fee waiver request too early may result in there being an overlap between your current grant of leave and your next grant of leave. This is because, as stated in the Home Office’s Guidance, Fee waiver: Human Rights-based and other specified applications, Version 6.0, when the Home Office grants you a fee waiver, you will have 10 working days from the date of the Home Office’s fee waiver decision to submit an application for leave to remain or further leave to remain. Whilst the Home Office Guidance suggests that the 10 working days period starts from the date of the fee waiver decision, paragraph 34G(4) of the Immigration Rules makes clear that the 10 day period starts from the day you receive the fee waiver decision, rather than the date of the decision itself.

The ‘Requesting a fee waiver’ information on the GOV.UK website provides the following scenario as an example:Your leave expires 1 April 2021, you request a fee waiver on 1 January 2021. The fee waiver is accepted on 1 February 2021, you then have to apply for your leave to remain within 10 working days.

You apply for leave to remain on 11 February 2021 and it is granted; you are granted a maximum of 31 months. You lose approximately 2.5 months from your current leave (which expired on 1 April 2021).

After the 10 day period, your leave to remain will be treated as expired so it is important you submit your application for leave to remain or further leave to remain after you receive the fee waiver decision and before the end of the 10 working days to avoid becoming an ‘overstayer’. You can read more about the consequences of becoming an overstayer here on our website.

Applying for a fee waiver if you currently do not have valid leave

If you do not have valid leave to remain and you apply for a fee waiver for an eligible in-country immigration application, Version 6.0 of the Home Office’s Fee Waiver Guidance says you will not benefit from the 10 working days period. Therefore, you should submit your application for leave to remain or further leave to remain as soon as the Home Office grants you the fee waiver.

How Do I Apply for a Fee Waiver Application?

For applicable in-country immigration applications, you apply for a fee waiver by completing this online form on the GOV.UK website. You also need to submit supporting evidence with your application. The fee waiver application is free to make. More on the application process and supporting evidence to provide with a fee waiver application will be covered in Part 2, which will be published on our website soon.

June 1, 2022

Changes to the Private Life Route: Appendix Private Life (ILR/Settlement)

In this article, I will address the indefinite leave to remain (settlement) provisions that will take effect on the same day. Those can be split into sub-categories as follows:

ILR/Settlement on the Private Life route:

For children born in the UK;
For persons who have or were last granted leave as a child or as a young adult;
For adults aged over 18 who do not qualify under the above sub-category.

Validity Requirements for a Private Life ILR Application

The validity requirements for settlement on the Private Life route are the same for all the aforementioned sub-categories, other than the requirement to have or have last been granted permission on the Private Life route. This does not apply to a child born in the UK. This effectively means that such a child can be granted settlement without having ever applied for or been granted limited leave to remain in the UK, provided that they meet the requirements.

All other applicants for settlement under Appendix Private Life will be required to have or have had leave on the Private Life route for a settlement application to be valid. This requirement does not apply to leave to remain applications, which do not require the applicant to have or have ever had leave in the UK.

The remaining validity requirements are identical to those applicable to leave to remain applications under the Appendix Private Life.

Suitability Requirements for a Private Life Settlement Application

The suitability requirements for settlement on the Private Life route are more complex than those for leave to remain on the same route. An applicant for settlement should not fall for refusal on the relevant suitability grounds for ILR under Appendix FM (S-ILR.1.2, S-ILR.1.6 to S-ILR.1.10, S-ILR.3.1, S-ILR.2.2, and S-ILR.4.2 to S-ILR.4.5) as well as under paragraph 9.6.1 of the Immigration Rules.

There are additional suitability requirements and exceptions. A person must be refused settlement on the Private Life route if:

They have been convicted of a criminal offence in the UK or overseas, for which they have received a custodial sentence of 12 months or more;
They have been convicted of an offence in the UK or overseas for which they have been sentenced to imprisonment for less than 12 months, unless they have completed a qualifying period of 10 years’ continuous residence with leave on certain categories (broadly on the basis of private and family life in the UK) and they have completed 5 years’ continuous residence with such leave since the end of their sentence (those can run concurrently);
They have been involved in a sham marriage or civil partnerships, have used false documents or information or deception, owe litigation debt to the Home Office (unless paid), owe a debt of £500 or over in charges to the NHS (unless paid), or have breached the conditions of their leave, unless they have completed a qualifying period of 10 years’ continuous residence with leave on certain categories (broadly on the basis of private and family life in the UK) and they have completed 5 years continuous residence with such leave after the date of the first grant of leave after the suitability ground came to the attention of the decision-maker (effectively, after leave was granted in the knowledge of the suitability ground);
They entered the UK illegally, unless they are a child or young adult and were granted leave to remain on the basis of private life, or unless they completed a qualifying period of 10 years with leave on certain categories (broadly on the basis of private and family life in the UK).

Finally, in order to qualify for settlement, the applicant must not be in the UK on immigration bail or in breach of immigration laws, unless paragraph 39E applies.

Whilst certainly adding a layer of complexity, the introduction of periods following which certain types of conduct will not result in a refusal of settlement under Appendix Private Life is a welcome change, given that most grounds of refusal in Part 9 are not expressed in finite terms.

Eligibility Requirements for ILR under Appendix Private Life

The eligibility requirements for settlement under Appendix Private Life differ depending on the relevant sub-category.

Children born in the UK

There are three eligibility requirements for children born in the UK:

The applicant must have been born in the UK and must provided a full UK birth certificate;
The applicant must have lived continuously in the UK since their birth and for at least 7 years at the date of application; and
The decision-maker must be satisfied that it is not reasonable to expect the applicant to leave the UK.

Whilst the sub-heading is “Child born in the UK requirements for settlement on the Private life route”, the wording of the requirements does not specify that the applicant should be a child on the date of application.

Applicants who were not born in the UK

For applicants who were not born in the UK, there is now a 5-year and 10-year route to settlement.

An applicant who has, or last had, leave to remain on the private life route as a child, or as a young adult who met the half-life test, must have lived in the UK for a “continuous qualifying period of 5 years with permission on specific routes.

An applicant who is aged 18 or over at the date of application and does not fall under the above sub-category, must have lived in the UK for a “continuous qualifying period” of 10 years with permission on specific routes.

The specific routes are set out in paragraph PL 14.3. and generally include entry clearance or leave to remain in one of the family life or private life routes, as well as leave outside the rules on the basis of family or private life under Article 8 ECHR. Leave on other routes that lead to settlement count towards the qualifying period, provided that the applicant did not enter the UK illegally (unless they have leave to remain on the private life route as a child or young adult) and has had leave under the current or new private life provisions for at least one year at the date of application.

The continuous residence requirements of Appendix Continuous Residence also have to be met in relation to the qualifying period for settlement, which includes provisions in relation to absences from the UK and breaks in continuous residence. This is a change from the existing eligibility rules for ILR under paragraph 276DE(a), which does not include consideration of absences.

English language and Life in the UK requirement

Finally, there is an English Language (level B1 CEFR in speaking and listening) and knowledge of life in the UK requirement (the Life in the UK test). Exemptions apply to children, applicants who are at least 65 years of age and where the decision maker considers that, because of the applicant’s mental or physical condition, it would be unreasonable to expect the applicant to fulfil either or both parts of that requirement, as per the relevant Appendix.

Decision on an ILR or Settlement Private Life Application under Appendix Private Life

The applicant will be granted settlement, otherwise known as indefinite leave to remain if the decision-maker is satisfied that the suitability and eligibility requirements of Appendix Private Life are met.

If the requirements are not met, but the decision maker believes the applicant is likely to meet the requirements for leave to remain on the private life route, the application for settlement will be varied to a leave to remain application. In these circumstances, no additional application fee will be required but the settlement application fee (which is higher than the leave to remain application fee) will not be refunded. The Secretary of State will inform the applicant of the variation and if required, will request that the applicant pay the Immigration Health Surcharge. If that is requested and not paid, or a fee waiver for it is not requested and granted, the application for leave to remain will be rejected as invalid and the application fee will not be refunded. The period granted and attached conditions will be in accordance with the provisions of paragraphs PL 10.1-10.5.

The application will be refused if the decision-maker is not satisfied that the applicant meets all the suitability and eligibility requirements for settlement or leave to remain on the Private Life route.

January 29, 2022

British citizenship can be taken away if criminal offending not disclosed

The Upper Tribunal has affirmed the continuing obligation to disclose material facts in applications for naturalisation as a British citizen, including facts which arise after submitting the application. The case is Walile (deprivation: self-incrimination: anonymity) [2022] UKUT 17 (IAC).

Offence committed while citizenship application pending
The facts in this case were particularly unpleasant. Mr Walile applied for naturalisation in January 2010. In March 2010, he raped a child. Shortly afterwards, he left the UK, returning on 3 May. He was issued a certificate of naturalisation the following day.

It is unclear from the judgment when Mr Walile was charged with the offence, but it was evidently after his citizenship application had been granted. In September 2016 he was sentenced to six years’ imprisonment following a guilty plea.

In November 2018, over seven years after the successful application for naturalisation, the Home Office decided to deprive Mr Walile of his British citizenship under section 40(3) of the British Nationality Act 1981. This empowers the Secretary of State to make a deprivation order if she is satisfied that naturalisation was obtained by “fraud, false representation or concealment of a material fact”.

The Secretary of State considered that Mr Walile had concealed a material fact by failing to inform her of the offence committed whilst his application was being considered. She argued that he ought to have known he was required to disclose the offence because he had signed the declaration on the application form promising to inform the Home Office of any change of circumstances. He had also confirmed that he had read Guide AN which at that time stated:

While the application is under consideration we expect you to tell us about anything which alters the information you have given us. This… includes police investigation or anything that may result in charges or indictment.

The appellant appealed, arguing among other things that the requirement to disclose the offence was contrary to the privilege against self-incrimination.

Self-incrimination and public law error
The Secretary of State relied on the Court of Appeal decision in L v C [2001] EWCA Civ 1509, which had found that:

The privilege [against self-incrimination] is against being “compelled” “on pain of punishment” to provide evidence or information. The privilege does not give rise to a defence in civil proceedings, nor give rise to a right not to plead a defence in civil proceedings.

In the event, the self-incrimination point was not pursued at the hearing. The Upper Tribunal agreed that “the privilege against self-incrimination simply does not arise in a case of this kind”.

The tribunal also refused permission to argue a new ground in light of the Supreme Court’s decision in Begum [2021] UKSC 7: that the deprivation decision contained a public law error. This argument arose from the guidance on Deprivation and nullity of British citizenship:

55.7.5 In general the Secretary of State will not deprive of British citizenship in the following circumstances:

Where fraud postdates the application for British citizenship it will not be appropriate to pursue deprivation action…
However, where it is in the public interest to deprive despite the presence of these factors they will not prevent deprivation.

President Lane and Vice-President Ockelton found that there was, in any case, no public law error:

… significant weight needs to be afforded to the opening words “in general” in paragraph 55.7.5 and the closing words, concerning the public interest. In the present case, it is, in our view, obvious that the Secretary of State took the view that the immense gravity of the material fact which the appellant concealed from the respondent meant that there was a significant public interest in depriving the appellant of British citizenship.

The appeal was dismissed and the deprivation decision upheld.

The official headnote
(1) An applicant for British citizenship who commits a criminal offence before the application is decided by the Secretary of State cannot rely upon the privilege against self-incrimination as a reason for not informing the Secretary of State of the crime.

(2) The mere fact that a foreign criminal has children is not a reason to impose an anonymity order, preventing disclosure of the foreign criminal’s name in immigration proceedings in the First-tier Tribunal or the Upper Tribunal.

(3) Begum [2021] UKSC 7 authoritatively explained how the scope of an appeal against a decision under section 40(2) or (3) of the 1981 Act is narrower than the Upper Tribunal and the Court of Appeal previously thought; but it did not introduce the ability to bring an appeal based on public law grounds, which have always been available.

Importance of disclosure
This decision confirms that applicants for naturalisation are required to disclose anything and everything that may cast doubt on their good character, not only at the time of making the application, but also whilst the application is being considered.

As Guide AN confirms, this includes disclosure of any offence “for which you may go to court” even if a criminal charge has not yet been brought. In such circumstances, the privilege against self-incrimination is not a defence for non-disclosure.

If such conduct is not disclosed and later comes to light, it is likely to result in deprivation of citizenship — even that might render the person stateless. And following the Supreme Court’s decision in Begum, the grounds of appeal against a deprivation decision are narrow.

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