Case No. UKUT-00222-(IAC)

) 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