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.

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