Case No. UKUT-00222-(IAC)

[2017] EWCA Civ 2009; [2018] Imm AR 531, they could have made (or could in the future make) a human rights claim by way of written submissions without a formal application for leave to remain and the relevant fee. Mr Mackenzie submits that it is not. He submits that the respondent’s stance on this issue was inconsistent in inter partes correspondence and that the position adopted by the respondent before the Tribunal is inconsistent with the terms of the decision under challenge. (Mr Mackenzie’s submissions in this regard were in any event refined in order to respond to the additional note which the respondent produced midway through the hearing, the contents of which I reproduce below.) 68. For the respondent, Sir James Eadie QC and Mr Malik submit, firstly, that the guidance is consistent with the authorities, which were expressly taken into account in its formulation. The concerns addressed by Stewart J in Carter are fully addressed by the third iteration of the guidance, which makes it clear that the underlying question is whether the applicant is able to pay the fee. 69. The respondent submits in response to the second and third questions posed by the applicants that the decision in question properly applied the test in the authorities and that the respondent reached a lawful decision in light of the absence of adequate evidence provided by the applicants. 70. The respondent submits, fourthly, that matters have moved on since Omar and Carter were decided. The position adopted by the respondent in Ahsan ,