Home Office’s fee waiver policy is challenged in the Upper Tribunal

The Upper Tribunal is to consider a legal challenge to the government’s policy on immigration fee exemptions. The Home Office’s policy has been strongly criticised as it wrongly focuses on whether migrants would be made “destitute” by the fee, when the correct test should be whether they can afford to pay or not.

According to the Home Office guidance the applicants for a fee waiver need to show that one of the following three circumstances apply:

1. They are destitute
2. They would be made destitute by the payment of the fee
3. There are exceptional circumstances

If none of the above can be demonstrated, the waiver application will be refused. And without payment, the main application for leave to remain will be rejected as invalid.

That is what happened to the family of five involved in this case, whose leave to remain fees amount to over £7,000. They provided evidence that they cannot afford this but were not able to establish destitution because they have somewhere to live.

The family’s solicitors, Duncan Lewis, argue on the family’s behalf that this focus on outright destitution is unlawful. The correct test should be a simple affordability: do they have the money or not?

The Home Office says that the policy is compatible with the leading cases of Omar [2012] EWHC 3448 (Admin) and Carter [2014] EWHC 2603 (Admin).

Saul Stone of Duncan Lewis says that “if we are successful in this case, or are able to secure changes to the policy through settlement, it is likely to be beneficial for a large cohort of people”.