Case No. UKUT-00222-(IAC)

61. I am grateful to counsel on both sides for the clarity and economy of their submissions, the essence of which was as follows. 62. For the applicants, Mr Mackenzie prefaced his written and oral submissions with four points which were said, without demur from the respondent, to represent common ground between the parties: (i) The Applicants were liable (unless eligible for a fee waiver) to pay a total of £7,665 for their applications (including the Immigration Health Surcharge (IHS), liability for which stands or falls with their liability to pay a fee). (ii) Following Omar and Carter , the test to be applied when a fee waiver is sought is whether the applicant can afford to pay the fee (the “affordability test”). As it was put in Carter at [27], the issue is whether the individual can ‘get their hands on the [sums of money] necessary to pay the fee’. (iii) A sub-set of the affordability test is whether an applicant will be destitute (as defined in law) as a result of paying the fee (the “destitution test”); however, the destitution test is not the ultimate question to be asked. That is to say, a person who is destitute will be unable to afford the fee and thus entitled to a fee waiver, but the enquiry does not stop there, because a person who is not destitute may nonetheless be unable to ‘get their hands’ on the money for the fee. (iv) The Applicants cannot be removed without consideration of their human rights. 63. In his skeleton argument and his oral submissions, Mr Mackenzie posed four questions for the Tribunal to consider. I take the questions posed and Mr Mackenzie’s suggested answers to those question largely from the helpful summary which appears at [3] of his skeleton. 64. Mr Mackenzie asks me to consider, firstly, whether the 2019 guidance is consistent with the decision in Omar and Carter . He submits that it is not, primarily because it does not require the decision-maker to apply the affordability test, but rather to ask themselves whether the applicant will be destitute as a result of paying the fee (the “destitution test”). 65. Mr Mackenzie submits that the second question for me to resolve is whether the respondent’s decision in this particular case actually applied the affordability test. He submits that the respondent did not, and that she applied the destitution test ‘as indeed was inevitable on any reading of the 2019 guidance as a whole’. 66. The third question posed by the applicants is said to arise in the event that I conclude that the respondent applied the affordability test. If so, the question posed is whether the respondent reasonably concluded that the applicant had not shown that they could not afford the fee. The applicants submit that it was not reasonably open to the respondent, considering the evidence as a whole, to conclude that they had, or were able to acquire, sufficient funds. 67. By the fourth and final question, Mr Mackenzie asks whether it is an answer to the applicant’s case to submit, as the respondent does with reference to