Case No. UKUT-00222-(IAC)

[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 ,