Case No. UKUT-00222-(IAC)

se, Breams Buildings London, EC4A 1WR Before: UPPER TRIBUNAL JUDGE BLUNDELL Between: THE QUEEN on the application of (1) AUGUSTINA AFI DZINEKU-LIGGISON (2) MELCHISEDECH KWADAWO ACHEAMPONG (3) JOEL KWABENA ACHEAMPONG (4) JEREMY KWABENA ACHEAMPONG (5) MYMA-LISA NSHIRA POMAA ACHEAMPONG Applicants - and - SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Alasdair Mackenzie (instructed by Duncan Lewis), for the Applicants Sir James Eadie QC and Zane Malik (instructed by the Government Legal Department) for the Respondent Additional written submissions filed on 9 April 2020 J U D G M E N T This judgment was handed down remotely by circulation to the parties’ representatives by email at 4pm on 20 May 2020. The Secretary of State’s Fee Waiver Guidance, version 3, was unlawful because it failed properly to reflect the settled test, of whether the applicant is able to afford the fee. Judge Blundell: 1. The applicants are Ghanaian nationals. The first and second applicants are the parents of the third, fourth and fifth applicants, who are twin sons aged nine and a daughter aged 5. By a claim form which was issued on 25 April 2019, they sought judicial review of a decision made by the respondent on 25 January 2019, refusing their applications for a fee waiver and therefore treating their applications for leave to remain as invalid. The applicants submit that the refusal of the fee waiver application was unlawful and that the respondent’s extant published policy on such applications – Fee Waiver: Human Rights-based and other specified applications, version 3.0 (dated 4 January 2019) - is itself unlawful. Factual Background 2. The first applicant entered the United Kingdom at some point in 2006. She held entry clearance as a Working Holiday Maker. The leave to enter which was conferred by her entry clearance was valid until 2008, after which she overstayed. 3. The second applicant also entered the United Kingdom as a Working Holiday Maker. He entered on 24 May 2005 and held leave to enter in that capacity until May 2007. On application, his leave was extended until 21 November 2007. Upon the expiry of that period of leave to remain, he also overstayed. 4. The third, fourth and fifth applicants were born in the United Kingdom on 15 June 2010 and 14 July 2014 respectively. 5. On 22 December 2018, the applicants applied for leave to remain on Article 8 ECHR grounds. Their applications were made with the assistance of a firm of representatives, the Refugee and Migrant Forum of Essex and London (“RAMFEL”). The FLR (FP) application form was accompanied by a detailed covering letter from RAMFEL and a volume of supporting evidence. It was submitted, in summary, that it would be a breach of Article 8 ECHR to remove the family from the United Kingdom. Reliance was particularly placed on the best interests of the children and it was submitted that the older two children had lived in the United Kingdom for more than seven years and that it would not be reasonable to expect them to leave (paragraph 276ADE(1)(iv) of the Immigration Rules refers). Application for Fee Waiver 6. The letter from RAMFEL also contained a section about the applicants’ ability to pay the fees for the applications, which totalled £7665, including the Immigration Health Surcharge. That section of the letter was in the following terms: Despite this positive contribution though, our client and Mr Acheampong have struggled desperately due to their inability to work and provide for their children. Their church have supported them with intermittent financial support and provided food and clothing, but as they confirm in their supporting statements they cannot assist the family with the fees for this application. Aside from support from friends, amounting to no more than relatively small cash donations, the family have no regular source of income and depend on the food bank run by the organisation representing them in this application. They are also not paying for legal advice and RAMFEL are acting pro-bono in this matter. The family currently reside at […]. This accommodation is provided by a family friend and the family make irregular payments only rather than paying consistent rent. They previously resided at […] and Mr Acheampong’s bank statements are still addressed here as he has yet to update his details with the bank. It is submitted that there is no prospect of the family raising the funds for this application - £7665 with the Immigration Health Surcharge – within the foreseeable future, ie 12 months and on this basis a fee waiver should be granted. Account statements for all bank accounts held by the family, as well as credit cards held by our client, are enclosed. Our client has a savings account and an ISA with Barclays, but she does not receive statements for these accounts. However, her current account statements show that the balance for her savings account has remained consistently at £0.00 whilst the ISA’s balance stands at £0.01. It is clear that our client and her partner have no meaningful income, and it is repeated that there is no prospect of them raising the funds for this application. In summary, it is submitted that our client qualifies for a fee waiver due to her inability to raise the funds for this application… 7. Also submitted to the respondent with Form FLR(FP) was a completed Appendix 1: Request for a Fee Waiver. The rubric at the start of that form included sections in the following terms: You should only complete this form if you are seeking a fee waiver because you think you meet the published fee waiver policy. This will be because you are destitute, or because you would become destitute if you paid the fee (in respect of your own application or one or more of your dependants included in the application), or because there are exceptional circumstances relating to your financial circumstances which mean that you are unable to pay the fee for your application (or for that of one or more of your dependants). […] The decision on whether you qualify for a fee waiver will be made on the basis of the information you provide in this form and the evidence submitted with it. It is your responsibility to provide sufficient information and evidence to demonstrate that you qualify for a fee waiver. You will need to provide documentary evidence with this fee waiver application to demonstrate your financial circumstances. The nature of this evidence will vary according to your individual circumstances, but some examples of relevant documents you may wish to include are listed below. 8. There then followed a list of the types of evidence which might support the application for a fee waiver. The applicants indicated that they were submitting four types of evidence: bank statements covering the period of six months prior to the application; savings accounts statements for the same period; letters from a registered charity or Local Authority confirming receipt of support; and other documents (as described in RAMFEL’s covering letter). 9. In section 1 of the application form, the applicants left unchecked a box next to the statement ‘I am destitute’. They checked the box next to the statement ‘I am not destitute but I would become destitute if I paid the application fee’. Also checked was the box next to the following statement: I am not destitute and would not become destitute if I paid the application fee, but I have exceptional circumstances relating to my financial circumstances which mean I am unable to pay the fee for my own application and all of the dependants included in the application. 10. In the section of the form which asked for an explanation of the answers to those questions, the applicants’ solicitor had placed a stamp which stated “See cover letter”, referring to the letter from which I have quoted above. The form was filled out with various other details. At section 2, the first applicant provided her personal details including her National Insurance number. Section 3 contained the personal details of the remaining applicants. 11. At section 4, the applicants provided details of their accommodation, stating that they had lived there since September 2017 and that they had not been asked to leave the property. They stated that the property was neither owned nor rented but that it was provided by a friend. They stated that they made a ‘variable’ contribution to their accommodation costs. In answer to a question about whether or not they received other financial support, including from a Local Authority, they answered in the negative. At the foot of the page on which that question was asked, the applicants were requested to provide documentary evidence such as annotated bank statements and payslips from the third party from whom support was received. At the end of section 4, the applicants stated that they were not homeless and would not become homeless shortly. 12. Section 5 of the form is entitled ‘Your Financial Details’. It begins with an emboldened paragraph which reads as follows: Please note we require evidence of your finances, including bank statements, building society savings books or other formal documentation in support of your application for a fee waiver. The evidence should cover the six month period prior to your application being submitted. If you are being supported by a friend or relative, we require written evidence in the form of a letter confirming this, with formal documentation showing that person’s financial resources. If you are being supported by a registered charity or a Local Authority, we also require formal documentation to evidence this. Please provide full details of exactly what the support consists of, why you are eligible for such support and when the support began. 13. The applicants then stated that they had received ‘intermittent’ support from friends since arriving in the UK. The first applicant’s sister in Belfast had also provided support previously. In answer to question 5.2, the applicants stated that they were unable to borrow money for the application fee from family and/or friends. A statement at 5.4 of the form requested applicants who were already receiving financial support from family or friends to provide documentary evidence to confirm whether they were able to borrow the application fee from those individuals. 14. A series of questions then sought to elicit information regarding the potential sources of funding not covered previously. The applicants stated that they were not receiving support from a former partner and that they had not received compensation or damages. The only non-cash asset they had was a television which was worth about £100. At 5.11, the applicants stated that they had attached bank statements for the accounts they held in the UK. At 5.14-5.17, they indicated that they had no income from employment or potential employment. 15. Section 6 of the form is concerned with the amount of public funds received by an applicant, if any. The applicants stated that they were not receiving any of the 21 different types of public funds listed. Section 7 asked about the second applicant’s financial situation. Each of these boxes was marked to indicate that he had no employment or assets. At 7.8, reference was made to his bank statements having been appended to the form. Section 8 asked for any additional information which was thought to be relevant. The applicants’ solicitor had again stamped this section “See cover letter”. At section 9, the applicants were required to provide a summary of their monthly incomings and outgoings. In the former column, they indicated that they received variable assistance from family and friends. No other sources of income were stated. In the latter column, the applicants stated that they paid gas and household bills (gas, electricity and water) of £160 and that they paid for the children’s school meals, at a cost of £92. 16. The form concluded with two places for the first applicant’s signature. Above the first was an emboldened warning that “All figures on this form must be supported with evidence/documentation”. Above the second was a declaration section, containing warnings in familiar terms, about the importance of providing accurate information and the consequences of failing to do so. There was then a box, underneath the place for the applicant’s signature, which contained this: Any friend, relative or other party whom the applicant has stated will provide financial support and/or is a joint customer with the applicant with a bank or utility company must ensure that they have also completed the consent for verification checks declaration which is included in the relevant leave to remain application form. 17. On the final page of the 25 page form, the applicants checked boxes to indicate that they had completed all sections of the form; enclosed all documentary evidence required by the form; and enclosed a fully completed application for leave to remain. 18. Evidence which bore on the application for a fee waiver and the application for leave to remain was submitted with the application forms. The evidence which related to the application for a fee waiver was as follows: (i) the first applicant’s Barclays Bank current account statement from November 2017 to December 2018; (ii) the first applicant’s current account mini-statement from 30 October 2018 to 15 December 2018; (iii) the second applicant’s Barclays Bank current account statement from November 2017 to November 2018; (iv) the first applicant’s Marks & Spencer credit card statement for May to September 2018; and (v) the first applicant’s Tesco credit card statement for April 2018 to October 2018. I should note (as did RAMFEL in the covering letter) that the Barclays statements also sought to provide an overview of the adult applicants’ finances, in that they also gave the balance of their ISA accounts, which were £0.01 and £0.00 respectively. Decision Under Challenge 19. In her decision of 25 January 2019, the respondent stated that the applicants did not qualify for a fee waiver because ‘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’. The reasoning in support of that conclusion was expressed over the course of the following page of the decision. Given the nature of this claim, it is necessary to set out that reasoning in full. (The paragraph numbering does not appear in the original; I have added it for subsequent ease of reference.) (1) We have considered your application against all parts of the fee waiver policy. We have considered whether you are destitute. (2) You have stated that you have access to accommodation provided by your friend and you have made no representations to the effect that this accommodation is inadequate. Therefore it is accepted that you have access to adequate accommodation. (3) You have stated that you are able to meet your essential living needs through the support from your family/friends. Therefore it is accepted that you are able to meet your essential living needs. (4) As a result, we have not received sufficient evidence to demonstrate that you are destitute. (5) We have considered whether you would become destitute if you paid the application fee or whether you could borrow the required amount from family or friends. (6) We acknowledge the bank statements provided for the account ending […]. However, in order to assess your disposable income and whether your financial circumstances have changed recently we require bank statements for all of your accounts covering a period of six months with all major and regular incoming and outgoing payments explained. The bank statements you provided were not sufficient for our purposes as they were not fully explained, for example the Barclays statement ending […] showed a deposit of £250 on 26 March 2018, £360 deposit on 13 April 2018, £300 deposit from Richard Abebrese on 9 July 2018, £200 deposit from Richard Abebrese on 1 October 2018. There was a total amount of £2550 deposit [sic] from E Acheampong throughout the period of the bank statements, all of which were not annotated. (7) Also, you submitted statements for Santander account ending […] from 30 October 2018 – 15 December 2018, you have not submitted six months consecutive statements for this account. (8) As a result, we are unable to assess whether or not you are able to pay the fee now. (9) Any support provided by others should be evidenced by letters from the friend, family member or organisation providing it, detailing what support is provided and whether or not it can continue. You claim to receive support from your friend. We have not received sufficient evidence to confirm you are unable to borrow the fee from that source. (10) Therefore, you have not provided sufficient evidence to demonstrate that you have no additional disposable income such that you could either: pay the fee now without compromising your ability to accommodate yourself adequately or meet your other essential living needs, or that you have no ability to borrow the required amount from family or friends. Finally, there is no basis for concluding that your financial circumstances are likely to change. As a result we do not consider that you would be rendered destitute by payment of the fee. (11) Consideration has also been given as to whether any exceptional circumstances exist relating to your financial circumstances and ability to pay the fee. You have not provided any evidence to demonstrate that there are exceptional circumstances relating to your financial circumstances and ability to pay the fee. (12) Consideration has also been given to section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children). We have considered the best interests of your children. We note that your children currently has [sic] access to adequate accommodation provided by your friend and that their other essential living needs are being met by support from friends/family. (13) For the reasons set out above, the Secretary of State does not consider that you meet the criteria for the grant of a fee waiver and your application for a fee waiver is therefore rejected. 20. The letter continued by reminding the applicants that they could re-apply for leave to remain, and that they could make a further application for a fee waiver, but that up to date evidence would be required in support of any such applications. There was then a sub-heading entitled ‘Liability to Removal’, in which the applicants were informed that they could be detained or placed on reporting conditions and that they would be liable to enforced removal to Ghana if they did not leave the United Kingdom ‘as required’. That section of the letter concluded by stating, in bold, that the applicants would be given further notice of when they would be removed. After that section, and before the part of the letter in which the applicants were given contact details of the Voluntary Departure Service, there was a list entitled ‘Consequences of staying in the UK unlawfully’. Given Mr Mackenzie’s reliance on the Home Office’s ‘hostile environment’ 1 , it is necessary to set out that list in full. If you stay in the UK without leave • You can be detained • You can be prosecuted, fined and imprisoned • You can be removed and banned from returning to the UK • You will not be allowed to work • You will not be able to rent a home • You will not be able to claim any benefits and can be prosecuted if you try to • You can be charged by the NHS for medical treatment • You can be denied access to a bank account • DVLA can prevent you from driving by taking away your driving licence. 21. On 9 February 2019, RAMFEL sent a Letter Before Action to the respondent, challenging the rejection of the application for a fee waiver. It was submitted that the total fee for the five FLR(FP) applications, including the Immigration Health Surcharge (“IHS”), was £7665 and that there had been clear evidence submitted that the applicants would be unable to raise the fee. In the circumstances, it was submitted that the decision was unreasonable, irrational and unlawful, when set against the fee waiver guidance. The letter cited the decision of Stewart J in R (Carter) v SSHD [2014] EWHC 2603 (Admin), to which I will return, and traced the development of the fee waiver guidance from the date of that decision. It was accepted that the applicants were not destitute. It was submitted that they would become destitute if required to pay the fee or, in the alternative, that they met the third limb of the respondent’s test, which was described as ‘exceptional circumstances … that justify the grant of a fee waiver’. The applicants’ financial circumstances were evaluated at length and it was submitted, in summary, that no reasonable Secretary of State could have concluded that the ‘exceptional circumstances’ limb of the policy did not apply. It was also submitted that the decision was contrary to the respondent’s obligations under section 55 of the Borders, Citizenship and Immigration Act 2009. 22. On 26 February 2019, the respondent responded to the Letter Before Action, stating that the decision under challenge would be maintained. She did not accept that the guidance had been applied incorrectly; that she had failed to consider the applicants’ circumstances as a whole; or that the decision breached section 55. Procedural Background 23. This claim was initially issued on 25 April 2019. Time having been extended for the respondent to reply, she filed Summary Grounds of Defence on 30 May 2019. By a consent order which was sealed on 23 July 2019, however, the parties agreed that the applicants should have permission to amend their grounds. It was therefore the amended grounds upon which Upper Tribunal Judge Pickup granted permission (on the papers) on 15 November 2019. In the circumstances, I propose to make no further reference to the original grounds. The amended grounds may at this stage be summarised as follows: (i) The Fee Waiver guidance, version 3, is unlawful in that it fails to implement the decisions in R (Omar) v SSHD [2012] EWHC 3448 (Admin) and R (Carter) v SSHD [2014] EWHC 2603 (Admin), presents unnecessary obstacles to an individual’s right to be granted leave to remain under Article 8 ECHR, and is contrary to s55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”). (ii) The respondent’s decision on the facts is unlawful, in that the respondent failed to ask herself the correct question, which was whether the applicants could in practice pay the fee. The respondent could not rationally conclude, on the facts, that the applicants were able to do so. 24. There were also lengthy submissions which responded to a particular point (“the