Case No. UKUT-00222-(IAC)

[2019] EWCA Civ 673; [2019] 1 WLR 4647 was relevant. It could not properly be submitted that the decision to treat the applications as invalid was incompatible with Article 8 ECHR because the applicants would not be removed from the UK until their rights under the ECHR had been considered. 71. I should also record, as foreshadowed above, that the respondent produced an additional note after the short adjournment. This was seemingly produced in answer to concerns expressed by Mr Mackenzie about the application of the respondent’s stance in Ahsan (etc) to the applicants’ case. The note, which was handed up without objection from Mr Mackenzie, begins by stating the terms of section 113 of the Nationality, Immigration and Asylum Act 2002 Act 2 . At [2], the respondent states that in order to fall within that statutory definition, “a human rights claim does not require to be made in the form of a fee paid application under the Immigration Rules”. Given its potential significance in other cases, I must reproduce the rest of the note verbatim: [3] A human rights claim ought to be made by a fee-paid application, in the interests of orderly decision-making, and that priority may be given to claims so made; but that is not a statutory requirement and even if a claim is made in some other form an applicant will not be removed from the United Kingdom until it has been considered. [4] In this case, the applicant has not made a valid fee-paid application under the Immigration Rules. However, the application covering letter dated 22 December 2018 is a human rights claim that meets the section 113 definition. The applicant will not be removed from the United Kingdom until it has been considered. It is not unlawful to consider it forthwith at this stage. [5] It is desirable in the interests of orderly and efficient decision-making for a human rights claim to be made by way of a fee paid application for leave to remain in the United Kingdom. If the applicant makes such an application, it will be considered and determined in accordance with the Immigration Rules; and priority may be given of [sic] that application. If the applicant makes no such application, she will not be removed from the United Kingdom unless the human rights claim made in the application covering letter dated 22 December 2018 is considered and adversely determined. 72. Sir James Eadie QC accepted in oral argument that this note omitted a crucial word in the final sentence of [4], which was plainly intended to read “It is not unlawful not to consider it forthwith at this stage.” 73. This note prompted Mr Mackenzie to submit in reply that his clients were entitled to much of the relief sought in the claim form. In particular, he noted that the applicants had sought an order quashing the respondent’s decision to treat their human rights claims as invalid and an order prohibiting the respondent from removing the applicants from the UK until there had been a lawful assessment of their claims. 74. I reserved judgment at the conclusion of the oral argument. Shortly before this judgment was to be sent to the parties in its embargoed form, additional written submissions were filed by the both parties on 9 April 2020. In these notes, the advocates drew to my attention two decisions which had recently been handed down by Lane P: R (Mujahid) v FtT & SSHD [2020] UKUT 85 (IAC) and MY (Pakistan) [2020] UKUT 89 (IAC). In both notes, the focus was on the latter of these decisions. The respondent sought to submit that MY (Pakistan) supported the argument she advanced with reference to Ahsan . The applicant submitted that the respondent had made an important and far-reaching concession in the short note handed up at the hearing and that the position considered in Lane P’s decision must be taken to have been superseded as a result of that concession. 75. It was as a result of these notes – and particularly that filed by the applicant – that I requested a copy of any written arguments which were filed by the respondent in Shrestha [2018] EWCA Civ 2810. The written submissions settled by Mr Thomann of counsel were sent by email on 17 April 2020. Discussion 76. This is not a case in which there is any disagreement between the parties regarding the correct approach to the interpretation of the Fee Waiver Guidance. As Chamberlain J recently explained in R (Ellis) v SSHD [2020] UKUT 82 (IAC), it is for the courts to interpret such extra-statutory policies, in accordance with the objective meaning that a reasonable and literate person would ascribe to them: [29]-[37]. His conclusion in that regard accords with that of the Court of Appeal in MS & MBT v SSHD [2017] EWCA Civ 1190; [2018] 1 WLR 389, at [37]-[42], per Underhill LJ, with whom Simon and Gloster LJJ agreed. Sir James Eadie QC did not attempt to persuade me to adopt a different approach, submitting that the guidance was either ‘ex facie good’ or ‘ex facie bad’ and that it was for the Tribunal to decide whether it accurately reflected the law. 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). Counsel for the respondent accepted at the outset of his submissions that it was common ground that this was the yardstick by which eligibility for a fee waiver is to be gauged. Omar and Carter are mentioned in the policy, and Mr Gallagher indicates in his witness statement that the intention was to tailor the guidance so as to take account of what was said by Beatson J and Stewart J. Contrary to one of the submissions made at [20] of the respondent’s skeleton argument, however, the guidance does not make clear at any point that the “underlying question” is whether an applicant can afford the fee. 78. As accepted by Sir James Eadie QC in oral argument, there is no express statement at any point in the lengthy guidance that affordability is the underlying question. 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 (as reproduced at [47] above). 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. 79. I have already alluded to the respondent’s frank acceptance in oral argument that the structure of pages 13-14 of the guidance is confusing. As I observed in my attempt to summarise the terms of the policy, these important introductory sections, which will necessarily inform the reasonable and literate reader’s understanding of what follows, fail to adopt any sort of logical structure. The three tests (which might conveniently be labelled ‘currently destitute’, ‘rendered destitute’ and ‘exceptional circumstances’) are stated but the text which appears under the sub-headings does not consistently relate logically to those tests. As counsel for the respondent accepted before me, the text which appears underneath the ‘exceptional circumstances’ sub-heading on page 14 appears to relate entirely to the second question. It is only if the reader chooses to ignore that text and to click on the “Assessing whether there are exceptional circumstances’ hyperlink that they would be taken to guidance on the third test. The result is that the reasonable and literate reader of the policy is likely to be confused by this important introductory section of the guidance. 80. Mr Mackenzie submitted orally and in writing that the guidance was dominated by considerations of destitution, with the result that the proper question – of whether an individual applicant could afford the fee – was obscured. He noted in his oral submissions that the words ‘destitute’ or ‘destitution’ appear 40 times in the guidance. Whilst the precise number of times that those words appears is not significant in itself, the submission does reflect the distance in the guidance between the test which should be applied and that which caseworkers are instructed to apply. There is no express statement of the affordability test but there is repeated and extensive reference to destitution. 81. Mr Mackenzie does not submit that there is no utility in directing caseworkers to consider whether an individual is currently destitute, or whether they would become so if they paid the relevant fee. Counsel on both sides accept that those categories form a sub-set of those who simply cannot afford to pay the fee. Assisting caseworkers to identify those who fall into these two categories is therefore of some value but, as Mr Mackenzie submits, the constant and repeated reference to destitution serves to focus the attention of the reasonable reader of the policy on the subset rather than the wider question. 82. Even if these first two stages of the guidance adopt an improper focus on destitution without stating the correct and wider test, the guidance poses a third question, as set out above. The real issue, it seems to me, is whether the guidance as a whole is capable of assisting caseworkers to undertake a structured analysis which yields a reasoned conclusion on the ultimate question of whether an individual can afford the application fee. Those who fall into the first two categories – currently destitute or rendered destitute – must, on any sensible view, comprise only a small number of applicants. As Mr Mackenzie submits, there are likely to be many applicants who maintain that they are not destitute nor at risk of becoming so upon payment of the fee but who maintain that they just have no way of accessing the thousands of pounds necessary to make a paid application. In those cases, it is to the third stage of the guidance to which the caseworker will turn. 83. Before I turn to my own analysis of that third stage of the guidance, it is timely to recall the way in which the guidance summarises this third stage. At pages 13-14, it is expressed in the following way: “ 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.” At pages 17 and 18, the test is differently formulated, in this way: “whether there are exceptional circumstances relating to their financial circumstances and ability to pay the fee such that the fee waiver should be granted”. Then there is the dedicated section at page 21 of the guidance, which I have already reproduced in full at [53] above. (Slightly different formulations appear on the Fee Waiver application form, as reproduced at [7] and [9] above.) 84. Against the backdrop provided by Omar and Carter , the rationale behind these formulations of the third stage is wholly unclear. If it is to generate an answer which complies with the overarching affordability test, the issue which a caseworker must at this stage consider is simply whether an individual who is not destitute and who will not be rendered destitute by payment of the fee is nevertheless demonstrably unable to pay the fee. The introduction of an ‘exceptional circumstances’ dimension to this third and final stage not only serves to obscure that question; it also serves, in the mind of the literate and reasonable reader, to erect a threshold which should not be present. Those who are demonstrably unable to pay the fee should not be required to do so; they need not be unable to do so because there is ‘something exceptional about their financial circumstances’. 85. I asked Sir James Eadie QC why it might have been thought appropriate to include reference to exceptional circumstances throughout the policy. His response was blunt: it would have been better to re-formulate the policy from scratch (after the decision in Carter ) but that this had not been done, and the present version of this section carries over some of what was in the initial version of the policy. It was to be seen, he submitted, as a “product of history”. The basis of his answer is quite apparent when page 10 of the first version is compared with page 21 of the current version. 86. Counsel for the respondent submitted that the most significant question for me to resolve was whether this aspect of the guidance – framed as it is with reference to exceptional circumstances – required an applicant to demonstrate merely an inability to pay or whether there was an elevated threshold. He submitted that it was clear, when the guidance was read as a whole, that there was no threshold of exceptionality. He drew attention to the fact that caseworkers are required by the guidance to take careful and holistic account of an individual’s circumstances. He noted the rubric next to the third of the boxes on page 4 of the fee waiver application form: “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 that I am unable to pay the fee.” He submitted that the form and the guidance clearly showed that consideration was given to an applicant’s ability to pay, without any additional element of exceptionality being required. The guidance did not confine the circumstances in which an individual who was genuinely unable to pay would be able to secure a fee waiver, he submitted. 87. However elegantly these submissions were advanced, I am unable to accept them. It is obviously correct that there is reference – throughout the guidance and the application form – to an individual’s ability to pay. Wherever there is such a reference, however, it is accompanied by reference to exceptional circumstances. The example given in the section on page 21 – of a sickly child who presents an unusual drain on a family resources – only serves to reinforce the impression that caseworkers are required to consider not only whether an individual can pay the fee, but also whether any inability to do so is the product of exceptional circumstances. I am reinforced in that conclusion by the occasions when the guidance refers to the test being whether there are exceptional circumstances without reference to an inability to pay. Notably, the sub-heading on page 21 is ‘Assessing whether there are exceptional circumstances’ and not ‘Assessing whether those not covered by definitions (1) and (2) might nevertheless be unable to afford the fee’ or even ‘Assessing whether the applicant can afford the fee.’ A reasonable and literate person who sought to apply this guidance would, in my judgment, consider that an applicant who failed to meet the first two tests would be required to show exceptional financial circumstances, and that it would not suffice for an applicant merely to establish by evidence that they were unable to pay. Even if the guidance does not expressly ‘confine’ the circumstances in which an applicant might qualify for a fee waiver, it colours the required analysis with its consistent reference to exceptional circumstances. 88. The requirement for exceptional circumstances to be established by those who are unable to meet the first two definitions prompts Mr Mackenzie to submit that the guidance gives rise to a significant ‘gap’ between those who should be eligible for fee waiver and those who are deemed to be so by the guidance. The guidance gives the example of the family whose resources are depleted by unusual financial demands brought about by a sick child. Consider, however, the circumstances of the applicant family. Their essential living needs are met by the charity of others. They are not destitute and there is no risk of them falling into destitution upon payment of the fee but they maintain that they simply have no way of raising the several thousand pounds necessary to make an application to regularise their status. There is nothing ‘exceptional’ about their circumstances, which are very similar to a great number of applicants who manage to remain in the UK without leave despite the hostile environment. Were their account to be accepted, however, it could not properly be said that they are able to afford the fee. 89. I come to the clear conclusion that the overall effect of the guidance is to circumscribe unduly the circumstances in which an individual might qualify for a fee waiver. The underlying affordability test is not mentioned expressly. The structure of pages 13 and 14 is confused and confusing. The guidance is dominated by references to destitution, which further obscures the relevant test. The analysis required by the third stage impermissibly erects an ‘exceptional circumstances’ hurdle. A reasonable and literate person applying the guidance would understand the three stages to be focused upon destitution, the threat of destitution and the existence of exceptional circumstances. Mr Mackenzie submitted that the guidance was unlawful because there was a real risk that the affordability test would not be applied. He adopted that manner of expression from what was said by Hickinbottom LJ at [57] of PK (Ghana) v SSHD [2018] EWCA Civ 98; [2018] 1 WLR 3955. He is certainly correct in that submission, although I prefer to express my conclusion more simply: the guidance is unlawful because it fails to focus the mind of the reasonable and literate reader on the affordability test. As in Carter , it does not provide for waiver upon proper proof that the applicant cannot pay the fee; the reasonable and literate reader would understand something more to be required. 90. It is perfectly understandable that the respondent should expect foreign nationals who seek leave to remain to pay a fee for their application which represents in part a contribution to the departmental costs of processing an application and in part a payment in recognition of the benefits an applicant would obtain from a successful application ( Odelola [2009] UKHL 25; [2009] 1 WLR 1230, at [10], refers). As Sales J noted in Sheikh , resources must be diverted from other activities of the State in the event that such costs are not borne by applicants themselves. The respondent is necessarily entitled, therefore, to scrutinise applications for a fee waiver carefully, so as to ensure that those who are able to pay do so. What the respondent is not entitled to do, however, is to obscure the underlying affordability test and erect an exceptional circumstances threshold in place of that test. 91. Sir James Eadie QC’s second submission in defence against Mr Mackenzie’s submissions was that the lawfulness of the guidance did not fall for consideration in this case. He submitted that the ‘gap’ identified by Mr Mackenzie was not relevant on the facts of this case; the reality of the decision in the applicants’ case was simply that they had failed to adduce sufficient evidence to show that they were unable to afford the fee. 92. I do not consider that submission to be correct, essentially for the reasons given at [21]-[26] of Mr Mackenzie’s skeleton argument. The policy is unlawful for the reasons I have summarised at [88]. If I am to grant a declaration that the guidance is unlawful, the ordinary course would be for the decision taken pursuant to that guidance to be quashed. As Mr Mackenzie submits, the decision taken by the respondent in these cases is in any event demonstrably tainted by the flaws in the guidance. Like the guidance, the decision itself is dominated by consideration of whether the applicants are presently destitute, or would be rendered so by payment of the fee. The summary of the decision, as reproduced within [19] above makes no reference to affordability. Paragraphs (1)-(4) assess whether the applicants were destitute, despite there having been no submission that this was the case. The second stage of the enquiry, which takes place over the course of (5)-(10) of the decision, begins and ends with reference to whether the applicants would be rendered destitute by payment of the fee. The consideration of whether there are exceptional circumstances is brief and formulaic. 93. It is submitted by the respondent that the ultimate conclusion reached by her was simply that the evidence did not show that the applicants were unable to pay the fee. They had been reminded throughout the application form, the respondent submits, that the onus was on them to support their application for a fee waiver with adequate evidence and they had failed to do so. That is not my reading of the decision. As I understand it, the respondent concluded that she was ‘unable to assess’ whether the applicants were able to pay the fee because she had not been provided with ‘annotated’ bank statements explaining the sources of funds which appeared in the accounts held by the adult applicants. As submitted by Mr Mackenzie, however, the respondent seems to have seized on the absence of specific evidence and thrown up her hands, rather than seeking to engage with the import of the evidence with which she was presented. It is notable in that connection that the respondent stated that she was ‘unable to assess’ whether the applicants were able to pay the fee, and that Mr Gallagher refers to the absence of evidence being ‘fatal’. 94. It is worth recalling the context in which the evidence presented by the applicants fell to be considered. The adult applicants are not permitted to work and have not been entitled to do so for more than a decade. They submitted evidence to show that they have no savings to speak of and the respondent, who has the facility to check for undisclosed bank accounts using the power conferred by s40 of the UK Borders Act 2007, did not cast doubt on that evidence. RAMFEL had explained in their covering letter that their services were provided pro bono publico and that the applicants were dependent upon the food bank run by that organisation. The income which the applicants had received between March and November 2018 totalled £3660. Even if all of that evidence had been saved for the payment of the fee (which it had not been), the applicants would not have saved half of the amount necessary. 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. 95. The possibility of applicants borrowing money in order to fund an application is addressed in the guidance, just as it featured in the respondent’s decision. For those with leave to remain and a source of income, it might presumably be expected that the fee for an application could be raised by way of a bank loan or other credit facility. For those in the position of these applicants, however, there can be no suggestion that a bank or building society would be willing to extend credit in the sum required. It is for that reason that the guidance requires applicants in this position to establish by evidence that they are unable to secure a loan from one or more individuals. The briefest consideration of that requirement reveals how it would, in practice, be practically impossible to prove. Since the sources of potential charity are infinite, so too are the potential sources of evidence. The applicants seem to have received support from a Mr Abebrese and a Mr Acheampong during the period under consideration. The respondent considered it unacceptable that there was no evidence from these individuals to show that they could not loan the applicants the sum needed to make the application. Had letters and bank statements from these individuals been presented, however, the respondent might simply have stated that the adult applicants – who have been in the United Kingdom for many years – should be able to borrow the sum from other acquaintances. The difficulty in proving this particular negative is writ large. 96. As Mr Mackenzie submits at [31] of his skeleton argument, though, this aspect of the guidance, and of the decision under challenge, has an air of fiction about it. There is no reason to think that individuals in the position of these applicants – surviving on the charity of others and food from a local organisation – might have access to one or more Dickensian benefactors who would be able and willing to provide a loan of nearly £8000, which might never be repaid. 97. In summary, therefore, I answer each of the first three questions posed by Mr Mackenzie in the applicant’s favour. The guidance is not consistent with the affordability test which emerges from Omar and Carter and which is agreed to be the correct test. The respondent’s decision in this case followed the guidance in failing to apply the affordability test. Even if the affordability test was applied, it was not rationally applied to the facts of the applicants’ case. Subject to my consideration of the fourth question, or the ‘ Ahsan question’, as it came to be described in submissions, the applicants are entitled to the relief sought. 98. The respondent’s submission in relation to the line of authority which began with Ahsan [2017] EWCA Civ 2009; [2018] HRLR 5 has been something of a moving target. From the date of decision until the date of the hearing, the applicants understood the respondent to maintain that they had made no valid application for leave to remain and no human rights claim. On the day of the hearing before me, the latter half of the respondent’s position was either clarified (as I think the respondent would submit) or amended (as Mr Mackenzie did submit). 99. The respondent’s Summary Grounds of Defence cited what had been said by leading counsel for the Secretary of State at [14] of Ahsan and set out various passages from Shrestha and Balajigari before making the following submission: [36] It is surely desirable for a human rights claim to be made by way of a formal application for leave to remain in the United Kingdom. The Secretary of State shall give priority to such applications, and that would be in the interests of orderly decision-making. However, as recognised in recent case-law, this is not a requirement prescribed by the statute. If a person makes a claim by way of written submissions, without a formal application for leave to remain and the fee, that person would not be removed from the United Kingdom until that claim has been considered. There would, however, be no guarantee for a decision to be taken on such a claim within a specified time limit. [37] Accordingly, the premise on which Omar and Carter were decided (namely, it is, in all circumstances, mandatory for a person who seeks to make an Article 8 claim to make a formal/paid application on a specified application form) no longer exists. In the light of the protection recognised by the Secretary of State and the Court of Appeal in Ahsan , Sherstha [sic] and Balajigari , it can no longer be said that a [sic] guidance which restricts the circumstances in which fee waiver should be granted would be incompatible with Article 8. Article 8 rights are protected, in any event, for a distinct reason. 100. It is to be noted that this position was expressed in the abstract; there was no positive acceptance on the part of the respondent that the applicants had actually made a human rights claim which had the protective effect suggested. This stance prompted correspondence from the applicants’ solicitors to the GLD. On 5 July 2019, the GLD responded to that correspondence in a short letter which included the following: It is denied that the Respondent’s position is misleading. It appears that you have misunderstood my client’s response and have conflated a human rights (HR) application with a HR claim. These are two separate things. To clarify, a formal application for a grant of leave is made in conformity with the requirements of the immigration rules (either on the form accompanied by a relevant fee, or under an exception in Appendix FM). On the contrary, a HR claim is a claim that removal of the applicant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). (Please see s113 Nationality, Immigration and Asylum Act 2002). As a result, the Respondent’s position is that they do not have to determine such claims until the issue of removal comes up. The Court of Appeal accepted this distinction in the case of Ahsan & Others v SSHD 2017 EWCA Civ 2009 (specifically para 15), copy attached. In essence, the Respondent’s position is that every HR application is a HR claim but not every HR claim is a HR application. 101. In an addendum to the summary grounds which was filed in August 2019, in response to the applicants’ amended grounds, the correctness of [36] of the original summary grounds was affirmed by the respondent. The stance adopted in the original summary grounds was also adopted at [25] and [26] of the Detailed Grounds of Defence and at [26] and [27] of the respondent’s skeleton argument before me. At each of these stages, therefore, there was no express acceptance that these applicants had made a human rights claim which operated to prevent their removal from the United Kingdom prior to its consideration. 102. In the note which was handed up during the hearing by Sir James Eadie QC, the entirety of which I have already set out above, the respondent’s stance was amended. Even if a human rights claim had been made in some form other than that prescribed by the Immigration Rules, the maker would not be removed until it had been considered, she submitted. As for the applicants, it was expressly accepted by the respondent that the covering letter from RAMFEL constituted a human rights claim and the applicants would not be removed until that claim had been considered. It was on the basis of this note that counsel for the respondent advanced his submission in the alternative, which might be summarised as follows. Even if the guidance fails to adopt the affordability test in the authorities, the human rights of applicants such as this family are nevertheless protected by the acceptance that they have made a human rights claim which must be considered prior to removal. Before I evaluate that submission, I should first set out a little more of the relevant authorities. 103. Ahsan & Ors was part of the extensive litigation which arose out of the BBC’s Panorama investigation into the use of proxies (or ‘pilots’) in a great number of TOEIC English language tests. The question before the Court of Appeal, as summarised by Underhill LJ at [3], was whether the applicants could challenge the Secretary of State’s decisions (whether by judicial review or appeal) from within the UK or whether they could only do so by an appeal brought after they had left the country. Two of the appellants had been given notices of administrative removal under s10 of the Immigration and Asylum Act 1999, which attracted only an out of country appeal. The other two appellants had made (valid) applications for leave to remain on human rights grounds. Those applications had been refused but the certification of the decisions by the respondent meant that only an out of country appeal was permitted by statute. At [14], Underhill LJ recorded one of the submissions made by counsel for the Secretary of State in the following way: … Ms Giovannetti accepted before us that in order to fall within the terms of section 113 a “claim” does not require to be made in the form of a fee-paid application under the Immigration Rules. She made it clear that it is still the Secretary of State’s position that a human rights claim ought to be made by a formal application, in the interests of orderly decision-making, and that priority may be given to claims so made; but she acknowledged that that was not a statutory requirement and she said that even if a claim was made in some other form a claimant would not be removed from the UK until it had been considered. 104. It was pursuant to that stance that the respondent expressly accepted in both of the ‘section 10 cases’ that the appellants had raised a human rights claim which engaged s113 even though they had not made human rights applications as separately defined: [106]-[107] refers. 105. The next case was Shrestha [2018] EWCA Civ 2810. Although this was a decision on an application for permission to appeal, Hickinbottom LJ (with whom Hamblen LJ, as he then was, agreed) considered that the decision raised an issue of wider importance and that it should accordingly receive a neutral citation: [37] refers. At [1], Hickinbottom LJ summarised the issue in the case as follows: This application raises the following issue: if an applicant for leave to remain raises a human rights ground for the first time after the refusal of his application on other grounds and in response to a request by the Secretary of State under section 120 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), does the Secretary of State have an obligation to treat and determine that response as an application for leave to remain on human rights grounds even absent any further form of application? The Applicants submit that he does. The Secretary of State denies any such obligation. 106. Having set out in full what was said at [14] of Ahsan , Hickinbottom LJ described the position of the Secretary of State to be as follows: [33] In this case, Mr Thomann accepts that the Secretary of State cannot remove the Applicant without considering his claim that to do so would breach article 8 of the ECHR. But, as he submits, the use of removal powers is a last resort. On the basis that the Applicant needs leave to remain and does not have it, he would be expected to leave the United Kingdom voluntarily. It is, of course, open to him to make an application for leave to remain on human rights grounds, in the required form and on payment of the required fee. If he considers that he has such a claim, that is the course required by the statutory scheme. If, in the meantime, the Secretary of State issues removal directions, then, at that stage, the Applicant will be able to rely on any human rights claim that he and/or his daughter have; and, reflecting the passage from Ahsan which I have quoted, subject to certification, he will be entitled to a right of appeal to the First-tier Tribunal to assess the merits of that claim whether or not a formal claim for leave to remain has been made because, otherwise, his removal would breach article 8. Therefore, the Applicant will suffer no possible unfairness or injustice as a result of the Secretary of State refusing to consider his human rights claim at this stage. 107. The answer given by Hickinbottom LJ to the question he had posed at the start of his judgment is to be found at [35]: For those reasons, I would answer the question I posed at the beginning of this judgment, "No": if an applicant for leave to remain raises a human rights ground for the first time after the refusal of his application on other grounds and in response to a request by the Secretary of State under section 120 of the 2002 Act, the Secretary of State has no obligation to treat and determine that response as an application for leave to remain on human rights grounds in the absence of the required form of application and payment. Indeed, I do not consider the contrary to be arguable. 108. Balajigari & Ors [2019] EWCA Civ 673; [2019] 1 WLR 4647 is the leading decision on what have become known as ‘earnings discrepancy cases’, in which the earnings relied upon by an applicant in a previous application for leave to remain conflict with those declared to HMRC. The discrepancies caused the Secretary of State, in each case, to refuse the applications for Indefinite Leave to Remain (“ILR”) which had been made by the appellants. At [96], Underhill LJ explained why it had been necessary to bring claims for judicial review: ‘a refusal of ILR is not in itself an appealable decision under s82(1) of the Nationality, Immigration and Asylum Act 2002’. Underhill LJ went on to note that the refusal of a human rights claim was an appealable decision under the statutory scheme. Having cited s113 of the 2002 Act, he went on to state as follows, at p4676: The procedural requirements for making such a claim were recently reviewed by this Court in R (Shrestha) v Secretary of State for the Home Department [2018] EWCA Civ 2810 . In short, section 50 of the Immigration, Asylum and Nationality Act 2006 enables the Secretary of State to require a particular procedure to be followed, including the form to be used and the fee to be paid; and paragraph 34 of the Immigration Rules, made under that provision, sets out mandatory requirements for an application for leave to remain (which includes an application made on human rights grounds). Where an application fails to comply with those requirements (including by not referring to a claim for leave on human rights grounds at all), there is no "human rights claim" refusal of which would give rise to a right of appeal. The Secretary of State has, however, conceded that in the context of an imminent removal an appeal will lie to the FTT against a refusal of a human rights claim even if not made in proper form: see paras. 31-33 of the judgment of Hickinbottom LJ in Shrestha . The basis of the concession (which originated in Ahsan : see para. 14 of the judgment of Underhill LJ) is not articulated, but it would appear to be justified on the basis that the Secretary of State can waive the formal requirements in the Rules. 109. As counsel noted in their helpful post-hearing notes, this line of authority was comprehensively reviewed in two recent decisions written by the President, Lane J: R (Mujahid) v FtT & SSHD [2020] UKUT 85 (IAC) and MY (Pakistan) [2020] UKUT 89 (IAC). Like the parties, I propose to focus on only the latter decision. 110. The appellant in MY (Pakistan) had made an application for ILR on the basis of domestic violence. The respondent did not accept that his marriage had broken down as a result of such violence. She refused ILR accordingly, and stated that there was no right of appeal against the decision because it did not constitute the refusal of a human rights claim. She expressly declined to consider the human rights claim. The appellant nevertheless sought to appeal. The FtT declined jurisdiction for the reasons given by the respondent. The appellant appealed to the Upper Tribunal, contending (partly in reliance on the decision of Kerr J in R (AT) v SSHD [2017] EWHC 2589 (Admin); [2018] Imm AR 483) that the respondent’s decision amounted to the refusal of a human rights claim and that a right of appeal accordingly arose under Part 5 of the 2002 Act. 111. Lane J reviewed his own decision in Baihinga [2018] UKUT 90 (IAC); [2018] Imm AR 930 and that of Stephen Morris QC (sitting as a Deputy Judge of the High Court, as he then was) in R (Alighanbari) v SSHD [2013] EWHC 1818 (Admin), noting that it was accepted by the respondent that the appellant had made a human rights claim: [50]-[55]. For reasons he gave at [56]-[80] the President concluded that the appellant’s human rights submissions had not been refused because they had not been considered, and therefore that there had been no refusal of a human rights claim which engaged s82 of the 2002 Act. In so concluding, Lane J said this at [67]: The respondent's ability, pursuant to section 50 of the 2006 Act, to require a specified procedure to be followed in making or pursuing an application or claim, and, in particular, in requiring the use of a specified form (along with the payment of a fee) has been endorsed by the Court of Appeal in Shrestha . Although that case was concerned with a section 120 Notice, paragraphs 29-33 of the judgment of Hickinbottom LJ acknowledged the power of the respondent to regulate the way in which applications and claims fall for consideration under the Immigration Acts. The way in which the respondent does so may, of course, be subject to public law challenge. However, there is no suggestion in Shrestha that the Court had difficulties with the respondent's stance (which differed from that in Ahsan ), whereby the respondent will, as a general matter, engage with an application or claim only if made in the specified manner, until the point at which the individual concerned is subject to removal directions, when no formality will be necessary. We reject Ms Mair's attempt to distinguish Shrestha ; although concerned with section 120, it contains an endorsement of the respondent's practice that has relevance to the present case. 112. The judicial headnote to the decision reflects the conclusions summarised at [81]. The headnote is as follows: (1) The Secretary of State's assessment of whether a claim by C constitutes a human rights claim, as defined by section 113 of the Nationality, Immigration and Asylum Act 2002, is not legally determinative. The Secretary of State's Guidance is, however, broadly compatible with what the High Court in R (Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin) has found to be the minimum elements of a human rights claim. (2) The fact that C has made a human rights claim does not mean that any reaction to it by the Secretary of State, which is not an acceptance of C's claim, acknowledged by the grant of leave, is to be treated as the refusal of a human rights claim under section 82(1)(b) of the 2002 Act, generating a right of appeal to the First-tier Tribunal. The Secretary of State is legally entitled to adopt the position that she may require human rights claims to be made in a particular way, if they are to be substantively considered by her so that, if refused, there will be a right of appeal. (3) There is, accordingly, no justification for construing section 82(1)(b) otherwise than according to its ordinary meaning, which is that the Secretary of State decides to refuse a human rights claim if she: (i) engages with the claim; and (ii) reaches a decision that neither C nor anyone else who may be affected has a human right which is of such a kind as to entitle C to remain in the United Kingdom (or to be given entry to it) by reason of that right. 113. With that overview of the authorities, I return to the submission made by Sir James Eadie QC before me. For the reasons which follow, I do not consider the respondent’s acceptance that the applicants have made a human rights claim which will not be considered forthwith but at some point prior to removal serves to affect the relief which would ordinarily flow from the conclusions I have reached in relation to the guidance itself and the decision in the applicant’s individual cases. 114. I do not accept the respondent’s principal submission that the stance recorded and adopted in the authorities I have set out above has removed the basis upon which Omar and Carter were decided. On the contrary, I consider Mr Mackenzie to be correct in his submission that the respondent’s argument before me is merely a reworking of a submission which was rejected by Beatson J in Omar . 115. At [70] of his judgment in Omar , Beatson J recorded that the respondent’s primary submission before him was that “the prospect of a breach of Article 8 is only theoretical because the Secretary of State has a residual power to grant leave to remain of her own motion and because of the other ways a claimant can obtain leave without making an application”. At [74], Mr Johnson QC for the Secretary of State was recorded as having submitted, inter alia , that the claimant was able to bring his circumstances to the attention of the Secretary of State by submitting that he could not be removed without disproportionately interfering with his Convention rights, so he had to be given discretionary leave without making a formal application’. 116. Those submissions were rejected by Beatson J for a number of reasons, not all of which I propose to rehearse. Amongst those reasons, however, was the following. At [72], Beatson J concluded that it was ‘deeply unattractive’ to submit that the Secretary of State could grant leave of her own motion, not least because it required an individual who waited for her to do so to commit an offence under section 24 of the Immigration Act 1971, although he recognised that a prosecution would be unlikely. He also noted that requiring a person in that claimant’s position to wait for the respondent to take a decision would confine them to what he described as a ‘half-world’ or ‘limbo’ 3 . 117. Albeit in a slightly different guise, therefore, the submission made by Sir James Eadie QC before me was made before, and rejected by, Beatson J. Contrary to the submission made by the Secretary of State in these proceedings, Beatson J did not proceed on the basis that it was, in all circumstances, mandatory for a person who seeks to make an Article 8 claim to make a formal/paid application on a specified application form. Beatson J acknowledged that there were other ways in which an individual might ventilate his Convention rights before the Secretary of State but he did not accept that those alternatives provided an adequate solution for the impecunious applicant who sought to regularise their status. 118. As matters presently stand, the concerns expressed by Beatson J about individuals in the position of these applicants being confined to a half-world apply a fortiori . The applicants have attempted to regularise their position in the United Kingdom by attempting to make an application for leave to remain. The respondent declined to consider that application for leave to remain because, as I have concluded, she operates an unlawful policy on fee waivers which is not properly aligned with the affordability test. As a result of those unlawful actions, the applicants are required to await a decision from the Secretary of State on what she nevertheless accepts to have been a valid human rights claim. In the intervening period, they continue to be subject to the hostile or compliant environment, the extent of which is clear from the decision under challenge (as set out at [20] above) and was recently considered by Hickinbottom LJ at [3] of SSHD v JCWI [2020] EWCA Civ 542. The ‘battery of provisions’ described in that judgment were largely brought about by the Immigration Act 2014. What Beatson J considered to be a ‘half-world’ is now 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. 119. I consider it to be at this point that Mr Mackenzie’s reliance on section 55 of the Borders, Citizenship and Immigration Act 2009 bites. 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. I recognise, as did Mr Mackenzie, that the children have existed in that environment for some years, as a result of the decision made by the first and second applicants to overstay and found a family whilst in the UK unlawfully. But their parents subsequently made an application to regularise their position in the UK and were entitled to consideration of that application at public expense if they were genuinely unable to afford the requisite fee. 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. I am, in any event, concerned by the efficacy of the safety net relied upon by the Secretary of State. 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. They were not told expressly in the response to their Letter Before Action that they were accepted to have made a human rights claim. Nor did the respondent make that clear in the further correspondence to which I have alluded above. Whilst the claim was afoot, the respondent did not state in the summary grounds, the detailed grounds, or even in the skeleton argument prepared for the hearing, that the applicants were accepted to have made a human rights claim. That acceptance came orally and in writing after lunch on the day of the hearing. 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 s113 of the 2002 Act. 122. Consider, therefore, the position of the individual and their legal advisers upon receipt of a notice such as that received by the applicants in this case. The notice states that the application for leave to remain has been treated as invalid because it was not accompanied by the requisite fee. It states, in bold, that the individual is liable to be removed from the United Kingdom. It gives no indication whatsoever that a human rights claim is nevertheless accepted to have been made. Against the backdrop of the authorities above, what advice might legitimately be given to the claimant, who is naturally concerned that they might be removed imminently from the United Kingdom? Are they to be reassured that there was nevertheless a human rights claim and that they cannot be removed until it is considered? A right-thinking client may find that advice difficult to accept, given the contents of the respondent’s letter. Or are they to be advised, contrary to what might actually be the respondent’s underlying position, that there was no valid application for leave to remain and no human rights claim, such that they are at imminent risk of removal action being taken? 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. Externally, therefore, there is a lack of clarity in the respondent’s position. I am also concerned that there is a lack of clarity internally, within the department itself. 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. Has that always been the (previously undisclosed) position, or was it only accepted to be the position at some point on the day of the hearing? If this claim had not been underway, could the applicants have been removed without consideration of the human rights claim which is now accepted to have been made? It is not possible to say, and the lack of clarity in these regards must call into question the extent of the protection relied upon by the respondent. I note that Mr Gallagher’s statement is silent on these important questions. 124. That leads me to a further point, which concerns departmental recording of applications for leave to remain and human rights claims. The respondent obviously has a record in this case that the applicants attempted to make an application for leave to remain, and that the application was rejected as invalid because it was not accompanied by the requisite fee. The notice states, as I have noted more than once already, that the applicants are liable to be removed from the United Kingdom. If the position is actually that they are not liable to be removed from the United Kingdom because it is accepted that they have made a human rights claim, it is not clear to me how this is reflected internally. I asked Sir James Eadie QC how individuals such as these applicants (who have not made a valid application for leave to remain but have made a human rights claim) are identifiable to a subsequent caseworker, who might come to consider the cases, pre-removal, months or years hence. There might be no external acceptance, communicated to the applicant, that there is a ‘barrier to removal’ but is there, I enquired, some internal system by which this is clearly identified? He was unable to give any indication of the mechanism by which this identification might take place. 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. Were the respondent to seek to remove these applicants without considering the claim which is accepted to have been made, their representatives would surely take action to prevent that course. 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. 126. In summary, therefore, I do not accept that the submissions made by the respondent in reliance on Ahsan and subsequent authorities provides any answer to the submissions made by Mr Mackenzie regarding the policy or the decision in this case. That line of authority (or the position adopted by the respondent within it) has not removed the basis upon which Omar and Carter were decided. 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. In any event, it is for the respondent to show that a person whose application for leave to remain is rejected is nevertheless protected effectively from removal by the acceptance that they have made a human rights claim under s113 of the 2002 Act. No such acceptance is communicated to the individual. It is unclear whether any such acceptance is recorded internally and, if it is, at what stage and by what means. 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. 127. It was submitted in the post-hearing note filed by Mr Mackenzie that the respondent’s position in relation to the making of a human rights claim had changed since Shrestha and MY (Pakistan) . The respondent maintained that there has been no change in her position, and that the note handed up during the hearing merely replicated her stance in the earlier cases. As will be apparent from the conclusions I have drawn above, I have not considered it necessary to resolve those competing submissions. As requested by Mr Mackenzie, I have reproduced the respondent’s note in full in case it might be of significance in future cases. Whilst it is not material to my decision, my conclusion on the competing submissions is as follows. 128. The submission made by Ms Giovannetti at [14] of Ahsan comprised three parts. Firstly, an acceptance that a human rights claim was not required to be made in the form of a fee paid application under the Rules. Secondly, that a human rights claim ought however to be made by way of a formal application for leave to remain and that priority would be given to claims made in that way. Thirdly, that even if a human rights claim was made in some other way, a claimant would not be removed until it had been considered. 129. These elements were also present in the submissions made by Mr Thomann, on behalf of the Secretary of State, in Shrestha . As noted, I was helpfully provided with the written submissions made in that case upon request. Paragraph [14] of Ahsan was cited at [20] of Mr Thomann’s written submissions. At [21], he submitted that the respondent had acted lawfully in requiring the applicant to make his application for leave to remain in compliance with the Immigration Rules. Immediately thereafter, at [22], the respondent’s submission was: It is accepted that the Secretary of State is not actually able to remove the Appellant without, in due course, considering his claim to remain under Article 8 of the Convention (see Ahsan , at [14]). 130. With respect, [33] of Hickinbottom LJ’s judgment reflects these submissions precisely. That paragraph (which I have reproduced above) begins by noting the respondent’s acceptance that she could not remove the applicant without considering his human rights claim and ends by concluding that the applicant would not suffer injustice as a result of the Secretary of State “refusing to consider his human rights claim at this stage”. Mr Mackenzie is therefore wrong to submit, at [12], of his post-hearing note, that the respondent adopted a position in Shrestha whereby she was not obliged to consider a human rights claim which had been made in the wrong form ‘at all’. As is clear from the excerpts above, her position in Shrestha was to accept that a human rights claim had been made, and that it would have to be considered before removal, but that she was not required to “treat and determine” that human rights claim as an application for leave to remain on human rights grounds. So it was that the respondent submitted that the notification of a human rights claim in response to a notice under s120 of the 2002 Act could not amount to an application for leave to remain under the Immigration Rules. 131. Nor do I consider the respondent’s submissions before me to be inconsistent with her stance in MY (Pakistan) . She accepted in terms in that case that a human rights claim had been made: [53] refers. She maintained that she had not refused the claim because she had, instead, refused to engage with it because it had not been made in form of an application for leave to remain. There is no suggestion in the record of the respondent’s submissions or in the decision of the Tribunal, however, that the respondent had departed from the position in Ahsan , that she was required to consider the human rights claim which had been made at some indeterminate point prior to removal. 132. For the reasons set out at [1]-[126], I conclude that the respondent’s policy is unlawful and that the decision taken pursuant to it in this case was unlawful. This judgment will be handed down electronically due to the Covid-19 pandemic. I therefore invite written submissions on relief and the form of any order. Supplemental Judgment 133. With the agreement of the parties, this judgment will be handed down by email. Negotiations between the parties regarding the form of order were unsuccessful. I have had regard to their submissions in formulating the order. In respect of each point of disagreement, I prefer the submissions made by Mr Malik. 134. Mr Malik has made brief written submissions in support of an application for permission to appeal. He submits that it is at least arguable that the respondent’s guidance is lawful and that the decision taken pursuant to it was also lawful. In the alternative, he submits that the ‘profound consequences’ of my decision are such that there is a compelling reason for the matter to be considered by the Court of Appeal. Mr Mackenzie submits that the former submission is unmeritorious and that the latter is for the Court of Appeal to decide. 135. Although I am not persuaded by Mr Malik’s first submission, I consider that there is another compelling reason for an appeal to be heard. As Stewart J observed in Carter , that reason is to be found in the impact on the fee waiver system and the important points of principle in the case. I grant permission to appeal on that basis. 136. If I understand CPR 52.16 correctly, it is a consequence of my decision to grant permission to appeal that the effect of my substantive decision is stayed pending the determination of the appeal. In the event that I am wrong in that, I order under rule 5(3)(l) of the Upper Tribunal Rules that the effect of my decision shall be suspended pending the appeal. ~~~~0~~~~ Postscript On 25 June 2020, the Secretary of State confirmed that she would not be lodging an Appellant’s Notice with the Civil Appeals Office and that she was content, in the circumstances, for the suspension of the effect of the Upper Tribunal’s decision to come to an end immediately. 1 This was the term used throughout the hearing, although it is nearly two years since the former Home Secretary indicated his preference for ‘compliant environment’.2 “human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) 3 I note that Underhill LJ used similar language in Ahsan , at [123], referring to an individual who had made a human rights claim which had not been refused being ‘left entirely in the hands of the Secretary of State and may have to pass many weeks or months in limbo’.