Case No. UKUT-00222-(IAC)

) 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 Ahsan argument”) taken in the respondent’s Summary Grounds of Defence, which were settled by Mr Malik of counsel. Since those submissions did not amount to a ground of challenge, and given their prominence in the submissions made before me orally and in writing, I propose to return to them in due course. 25. Judge Pickup rehearsed the competing arguments in some detail before concluding materially as follows: In summary, for the reasons set out above, it is arguable that insofar as the Fee Waiver Policy may exclude those who cannot afford to pay the fees but who do not qualify under the policy’s definition of destitute/destitution, it is unreasonable, irrational or unlawful. If the policy is to be applied inflexibly, it is also arguably an unlawful fetter on discretion to waive fees. It is arguable that even though the policy has been amended to take account of Omar and Carter, the focus on either destitution or, in the alternative, exceptional circumstances still fails to be compatible with the Convention. Legislative Scheme 26. The relevant provisions are not in issue between the parties and much of what follows is taken directly from [16]-[23] of the amended grounds. 27. By s68 of the Immigration Act 2014 (“the 2014 Act”), the respondent has power to require a fee for an application for leave to remain. Section 68(2) provides that the functions in respect of which fees are to be charged are to be specified by the Secretary of State by order. By s68(7), the amount to be charged for any particular function is to be set by the Secretary of State by regulations. By s68(10), the Secretary of State is empowered to permit, by way of regulations, the reduction, waiver or refund of part or all of a fee (whether by conferring a discretion or otherwise). 28. Article 4(1) of the Immigration and Nationality (Fees) Order 2016 (“the Fees Order”), as amended, provides that a fee is to be charged for the consideration of an application for leave to remain in the United Kingdom. 29. By paragraph 1 of schedule 2 to the Immigration and Nationality (Fees) Regulations 2018 (“the Fees Regulations”), applications such as those made by the applicant (in reliance on Article 8 ECHR) are defined as specified human rights applications. As a result of Table 6 of the same regulations, the fee for such an application is £1033 per applicant. An additional fee, or surcharge, is imposed by the Immigration (Health Charge) Order 2015 which, at the material time, stood at £500 per applicant. 30. By regulation 16 of the Fees Regulations, the Secretary of State may reject an application as invalid or request an applicant to pay an outstanding fee where that person is required to pay a fee specified in the Regulations but has failed to do so. The fee may however be waived in accordance with paragraph 9.4 of Table 9 of the Fees Regulations, which provides as follows: No fee is payable in respect of a specified human rights application where to require payment of the fee would be incompatible with the applicant’s Convention rights. R (Omar) v SSHD and R (Carter) v SSHD 31. Two decisions reached by judges in the Administrative Court are said by Mr Mackenzie to be particularly relevant to my assessment of the lawfulness of the current Fee Waiver policy. 32. The first of those decision is that of Beatson J (as he then was) in R (Omar) v SSHD [2012] EWHC 3448 (Admin); [2013] Imm AR 601. The claimant in that case had succeeded in his appeal against a deportation order, with the Asylum and Immigration Tribunal concluding that his deportation to Cameroon would be a breach of Article 8 ECHR: [6]. Limited leave was eventually granted to him and he applied for further leave before its expiry: [10]. He contended that he should not be required to pay a fee or, in the alternative, that any fee for the application should be waived in his particular circumstances: [12]-[13]. The respondent refused to consider the application. Her position, although not expressly stated in the decision under challenge, was that she was positively unable, as a result of the regulations then in force, to waive the requirement for a fee: [14]. The claimant (who was also represented by Mr Mackenzie) submitted that the refusal to consider the application was unlawful and that the regulations then in force were ultra vires section 51 of the Immigration, Asylum and Nationality Act 2006 (the predecessor provision to s68 of the 2014 Act): [15] and [63] 33. By the time the application came before Beatson J, the defendant had granted the claimant thirty months’ discretionary leave to remain. For reasons he gave at [35]-[61], Beatson J did not accept that this had rendered the claim academic because, in particular, the question of whether a discretion to waive the fee must exist in law remained outstanding: [60]. Nor did he accept the primary submission made by the Secretary of State, which was that there was no prospect of an Article 8 ECHR breach because the Secretary of State had a residual power to grant leave to remain of her own motion and because there were other ways in which a claimant could obtain leave without making a paid application: [70]. To wait for the respondent to grant leave of her own motion was a “deeply unattractive” solution, since that would confine an individual to a “grey hole” of uncertainty and expose them to potential prosecution under s24 of the Immigration Act 1971: [72]. Ultimately, Beatson J concluded, at [82], that The requirement in regulations 6 and 30 of the 2010 Fees Regulations that, in this class of case, a fee must be paid, there is no provision for waiver and an application without a fee “is not validly made” must, in the light of section 3 , 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. 34. So it was that the words “except where that would be incompatible with a Convention right’ were to be read into the regulations then in force: [83]. Although the Secretary of State was granted permission to appeal against Beatson J’s decision, she did not pursue the appeal. It is as a result of the decision in Omar that paragraph 9.4 of Table 9 of the 2018 Fees Regulations (as set out above) is worded as it is. 35. It was in response to the decision in Omar that the Secretary of State introduced the first of three Fee Waiver polices in September 2013. It was then to be found in the Immigration Directorate Instructions. The policy made express reference to Beatson J’s decision, and to [82] in particular. The test for granting an application for a fee waiver was described at 1.1.1 of the policy: Applicants will qualify for a fee waiver only where they can demonstrate on the basis of evidence provided that they are destitute, or where there are exceptional circumstances. 36. The policy adopted the definition of destitution in s95 of the Immigration and Asylum Act 1999, under which the respondent may provide or arrange support for asylum-seekers and their dependants who are destitute or likely to become destitute. The statutory definition is as follows: (3) For the purposes of this section, a person is destitute if— (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs. 37. The 2013 policy was challenged in R (Carter) v SSHD [2014] EWHC 2603 (Admin). The respondent had refused to waive the fee for the claimant’s human rights application (£578) because he lived with his grandmother, who gave him £20 per week spending money. As a result, the defendant did not accept that ‘your client meets the definition of destitution and is not eligible for a fee exemption’. 38. Having set out the facts of the applicant’s case and the relevant legal provisions, Stewart J considered Beaton J’s decision in Omar . He set out excerpts from [3], [13], [64], [68]-[69] and [82]-[83] of that judgment before turning to the way in which the claimant put his case, which he summarised at [16] in the following way: (i) The crucial point is that he cannot afford the fee. If that is the case then, irrespective of whether he meets the test of destitution or exceptional circumstances in Appendix 1 FLR(O), his Article 8 rights are breached. (ii) The evidence clearly establishes that C is unable to afford the fee in that he receives a maximum cash allowance of £20 per week, well below the minimum sum stipulated by law to be necessary for a single person of his age to live upon – the single person allowance for income support is £56.80 per week. (iii) The refusal by D to process C's application to regularise his status in the UK is an ongoing breach of Article 8. This is regardless of the fact that D has taken no steps to remove C. Article 8 encompasses the right to develop as a person. C has no permission to work and claim benefits. He would find it difficult to pursue higher education/vocational training. Therefore C is being forced by D's decision to subsist below the poverty line. D's decision results interferes with C's personal autonomy and right to self determination and therefore interferes with his Article 8 rights. These rights can only properly be given effect to by a grant of status in the UK; a promise not to remove a person pending some further event is insufficient of recognition of Article 8 rights. C is entitled to a decision about his rights to reside in the UK. He is being deprived of this because his application has been rejected for want of the fee which he cannot pay. 39. Stewart J then noted that the defendant relied on R (Sheikh) v SSHD [2011] EWHC 3390 (Admin). (Although judgment in that case was handed down by Sales J (as he then was) in December 2011, it was not considered in Omar , which was heard nearly a year later.) Sheikh was an entry clearance case, on the facts of which Sales J had concluded that it was lawful for the defendant to require that a fee be paid. Whilst Stewart J was cautious about the different context in which the two challenges were brought, he did accept that the following section of [74] of Sales J’s judgment translated into the circumstances he was considering: It is fair and proportionate to the legitimate interests identified in Article 8(2) for state authorities to focus attention primarily on the ability of an applicant to pay the relevant fee. If there is no great difficulty in them raising funds to pay the fee there will be no tenable case under Article 8 for the Applicant to be exempted. 40. The defendant sought, in addition, to rely on an additional section of [74] of Sales J’s judgment in Sheikh . In [74](10) of his judgment, Sales J had stated that it would be relevant, in assessing an application for a fee waiver, to consider the strength and force of the underlying claim. Stewart J did not consider the strength of the underlying claim to be relevant in the case before him, since he had to consider the issue of principle, which was “if someone has a potentially valid claim for LTR, is D’s policy unlawful?”: [20]. 41. Having recorded at [22] that there was a measure of agreement between the parties, Stewart J stated that the critical point was whether the Fee Waiver policy was incompatible with a Convention right, noting that “[s]o long as the policy is not so incompatible, D is entitled to adopt a rigorous approach to the question of fees”: [23]. In support of that latter statement, Stewart J footnoted four authorities, including Sheikh . He also noted that it was reasonable and proportionate for those who claimed to be destitute to be required to provide evidence as to their finances, rather than expecting caseworkers to make their own enquiries: [24]. At [25], Stewart J accepted a submission made by the defendant that a policy should provide ‘clear objective guidance’ to caseworkers considering such applications and that unless that guidance was ‘clear and objective, transparency, consistency and fairness may be compromised’. 42. At [26], Stewart J identified two major problems with the policy. 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 NASS recipient. The second problem, which Stewart J described as “the wider point”, was this: In any event, the heart of the matter is what is the true ratio of Omar ? To what extent does Omar assist in determining where the incompatibility with a Convention right arises? D's submission is that the policy is entirely consistent with the ratio because "this class of case" means a person who is destitute or in receipt only of NASS support. (I note that D's Skeleton Argument did not initially include the words "in receipt only of NASS support"). I do not accept that the ratio is so limited. I note from paragraph 13 of Omar , the Claimant's submission in that case that "in the light of the minimum funds granted by NASS, he did not have sufficient funds to pay the fee." It seems to me that if a person demonstrates upon proper proof that they cannot pay the fee, then a policy which does not provide for waiver in those circumstances is incompatible with a Convention right. [emphasis added] 43. Stewart J pressed counsel for the defendant about the ambit of the ‘exceptional circumstances’ part of the policy, which appeared to him to be circumscribed very closely. Counsel for the defendant returned after the short adjournment with a position statement in which it was accepted that “if a person were able to prove with sufficient evidence of satisfactory quality that their financial position was such that were they to pay the application fee, they would be left without sufficient funds to meet their essential living needs and would thereby be rendered destitute within the meaning of the policy, this could amount to exceptional circumstances.” In undertaking that assessment, the defendant stated that she would consider all the circumstances of the case including the assets available to the individual and any relevant third parties. 44. Stewart J did not consider this to reflect the reality of the situation; it was not a question of the individual being rendered destitute by paying the fee. He observed that “[s]uch a person would not be able to get their hands on the hundreds of pounds necessary to pay the fee”: [27]. Nor, in any event, did the defendant’s position appear to be in accordance with the policy on exceptional circumstances, the introduction to the policy, or the rubric on the application form (which referred only to destitution). Nor did this position provide a satisfactory answer to the position of the individual who was not in receipt of NASS support but who was no better off than a recipient of that support. At [33], Stewart J granted a declaration in the following terms: I therefore declare that the Policy is unlawful in that 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 such as C, who is within the jurisdiction and who has an arguable private/family life within Article 8(1) ECHR. 45. Stewart J granted the Secretary of State permission to appeal against his decision and stayed the effect of it until resolution of that appeal. In the event, the Secretary of State chose not to pursue the appeal to the Court of Appeal. Instead, on 30 August 2017, she issued amended guidance: Fee waiver: Human Rights-Based and other specified applications , version 2.0. I need not dwell on that guidance. It was in force from that date until 4 January 2019. The parties before me are in agreement that it is upon the 2019 guidance that I should focus, notwithstanding the fact that the applications were made when version 2 was in force. Version 3.0 of the Fee Waiver Policy 46. The current version of the guidance is available online: https://www.gov.uk/government/publications/applications-for-a-fee-waiver-and-refunds . It is a lengthy document, running to 27 pages of single-spaced type, and does not readily lend itself to precis, although it is plainly necessary to consider its structure and to highlight certain passages, as counsel did in the detailed skeleton arguments filed on both sides. 47. As is commonplace, the policy begins with a statement of purpose and a section explaining the changes from the last version of the guidance. That section explains that there will be a transition to digital applications from 4 January 2019 and that certain changes to the fee waiver application process have been made in light of that change. That section is irrelevant to the present claim. What is relevant, however, is the section entitled “Other changes from last version of this guidance”, which contains four paragraphs, the second of which is as follows: The stages of the decision are now set out in order to make it clear that the decision on the request for a fee waiver takes into account whether the applicant can afford the amount required at the time of the application, and whether this is consistent with the applicant’s wider circumstances. 48. Pages 6-7 contain sections entitled “Applicants who are eligible” and “Circumstances to be considered”. The former section states, inter alia, that applicants who are eligible for a fee waiver are those making certain specified human rights applications “where to require payment of the fee before deciding the application would be incompatible with a person’s rights under the ECHR”. It also states that the guidance has taken account of the judgments in Omar and Carter . The latter section states that decision makers must have regard to the best interests of children in assessing a fee waiver application. It also states that applicants will be asked to provide details of their financial circumstances, in the form of six months’ statements from all relevant bank accounts and a full breakdown of incomings and outgoings. Checks might be undertaken with government agencies and with Equifax to verify information provided by the applicant with regard to their income and finances. 49. Pages 8-9 consider the types of immigration applications for which a fee waiver may be requested, and need not be further considered in this judgment. Nor do I need to consider the section which follows, dealing with the applications for which a fee waiver cannot be requested. 50. It is pages 13-24 of the guidance which are particularly relevant to the challenge advanced by Mr Mackenzie. Page 13 begins by reminding caseworkers that fee waivers are only available under certain specified routes, as defined previously. It then states that, in order to receive a fee waiver, an applicant “must qualify on the basis of one of the three definitions below”. The three definitions appear in a different sized font, interspersed with other text, over the course of the next three pages. They are, verbatim, as follows: (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. 51. The structure of pages 13-14 is rather confusing, as Sir James Eadie QC was constrained to accept. Whilst these three ‘definitions’ appear to be sub-headings, the text which appears underneath the third sub-heading does not appear to relate to the question of whether there are exceptional circumstances that justify the grant of a fee waiver. With the exception of a hyperlink to a different part of the guidance (entitled “Assessing whether there are exceptional circumstances”), the text underneath the third definition appears to relate to the second definition. Underneath the ‘exceptional circumstances’ subheading, we also find two paragraphs which state, firstly, that the ‘decision to grant a fee waiver will rely on two sets of considerations’ and, secondly, that: The first consideration is whether the applicant can afford the amount required at the time of application. If the applicant cannot, then the second consideration is whether requiring the amount would mean the applicant living in such a way as to lead to destitution. 52. Page 16 is entitled ‘Assessing and taking individual circumstances into account’. Caseworkers are instructed to assess the application for a fee waiver on the basis of the information provided by the applicant in the relevant form and by the accompanying evidence. At the top of page 16, the guidance states that “The assessment itself is against the circumstances of destitution, or its likelihood if required to pay the fee, as set out in the qualifying section above.” Having drawn attention to the requirement to provide satisfactory evidence, and to various circumstances which might be particularly relevant (including pregnancy and physical or mental disabilities), the guidance reminds caseworkers that: The significance of considering such individual circumstances is that they have the potential to impact on the applicant’s resources and therefore the consideration of whether the applicant is destitute or would be rendered destitute by payment of the fee, or whether there are exceptional circumstances relating to their financial circumstances and ability to pay the fee such that the fee waiver should be granted. 53. Over the course of pages 17-20, there is guidance on specific subjects, including the consideration of requests from applicants who are part of a wider household, the timeframe for considering the request, the consideration of documentary evidence (highlighting again that the onus is on the applicant), applicants who are in receipt of support from NASS, a local authority or a registered charity, and a list of some other miscellaneous factors to be taken into account. There are then sections dealing specifically with what might be considered a reasonable period to save from disposable income and the intentional disposal of funds. There is then a sub-heading of ‘Assessing whether there are exceptional circumstances’. (This is the section of the guidance to which the reader is directed by clicking on the hyperlink at page 14 of the guidance). Below the sub-heading there is the following (the emphasis is in the original):