Case No. UKUT-00222-(IAC)

55. On 3 February 2020, a witness statement was filed by the respondent in support of her defence. It was made by Mike Gallagher, who is a Grade 7 Policy Adviser in the Asylum and Family Policy Unit. He has responsibility for the fee waiver policy insofar as it applies to applicants who rely on Article 8 ECHR. He has been in that role since 28 January 2018. 56. Mr Gallagher gives background to the fee waiver policy at [4]-[8]. He states that the aim of the policy is to allow Article 8 rights to be formally considered and to avoid an applicant whose Article 8 rights are engaged becoming unlawfully present in the UK where they are unable to pay the fee. He notes that the IHS increased from £200 to £400 per year in January 2019 and that this necessitated a change in policy, by requiring decision makers to consider the overall amount to be paid when a fee waiver request was made. At [7], he confirms that the guidance was drafted having regard to the decisions in Omar and Carter . At [8], he summarises what he understands to be the effect of those cases. The ratio of Carter is described as follows: In the Carter case the court found that our policy did not go far enough because whilst it offered protection to those that were destitute or receiving NASS support, it did not cover those who could not afford the fee without becoming destitute. 57. At [9]-[14], Mr Gallagher considers the criteria for a fee waiver. He states that the decision making process is in two stages, which he describes as follows: The first consideration is whether the applicant can pay the required amount at this point in time? Secondly, is this consistent with the applicant’s circumstances as demonstrated by all the evidence provided. The aim of this is to ensure that applicants are not required to pay the required amount simply because they can on the day, but with a future detrimental effect to them as a result. 58. He also states the guidance requires caseworkers to check whether an applicant whose financial circumstances are otherwise ‘robust’ might have a reduced ability to pay the fee at the required time. Taken together, he states at [13], the relevant statements in the guidance ‘provide decision makers with scope to take into account the future impact on an applicant, and scope to take into account whether the applicant is endeavouring to be able to afford the fee, as opposed to acting without regard to this’. 59. At [15]-[18], Mr Gallagher highlights what is apparent from the guidance already; that the onus is on the applicant to provide evidence in support of their application for a fee waiver. He considers the possibility of loans from those already providing support at [18] and at [19]-[20] he explains how further evidence might be sought from those with leave to remain but not from those who are present unlawfully, who are expected to submit a further application in the event of a refusal to waive the fee. 60. At [21]-[24], Mr Gallagher comments on the application of the guidance to the specific circumstances of the applicant’s case, highlighting the fact (accepted by Mr Mackenzie) that the applicants did not provide evidence corroborating that they were receiving support from family and friends. He notes that the absence of any such statement is ‘fatal’ to the request for a fee waiver: [24].