Case No. UKUT-00222-(IAC)

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.