Case No. UKUT-00222-(IAC)

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