Case No. UKUT-00222-(IAC)

) 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."