Home Office adamant cogent evidence renders AA(Iraq) largely redundant on security situation

It is clear from initial decision- making through  to  judicial review challenge cases  that the  Home Office have been  angling for many months to have  AA (Article 15(c)) (Rev 2) [2015] UKUT 544 (IAC)  overturned.  This is because having regard to AA(Iraq)2015,  as initially promulgated  and even as recently amended by  AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944, it is still possible  for  Iraqi claimants  relying on claims for Humanitarian  Protection  before the Tribunal  to succeed.  What may be delaying a head -on challenge might be the lack  identification of  an appropriate  case.  In  AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944, the  Court of Appeal stated  in July 2017 that since the parties were  agreed as to the error of law in AA(Iraq)2015, and what needed to be done to correct it, there  was no point in remitting the case to the Upper Tribunal.  The correction to the country guidance  could be made by the Court of Appeal itself.  It was noted following submissions as to the best procedure to adopt, that  the parties were  agreed that the safest course  was to append to the Court of Appeals’ judgment a complete revised Country Guidance, with the amended text highlighted. The amended country guidance therefore appears as the Annex to the Court of Appeal’s  judgment. The Court of Appeal emphasized  that Paragraph 170 of the Upper Tribunal’s judgment should be read in the light of and consistently with the amended guidance.

Despite the Court of  Appeal  not having  overturned AA(Iraq)2015, the newly amended policy guidance,  Country policy and information note: return/internal relocation, Iraq, September 2017   provides, On 22 June 2017, the Court of Appeal (CoA) in [2017] EWCA Civ 944, [2017] WLR (D) 466 remade one specific point in AA Iraq (see 2.4.4). It effectively replaced paragraphs 204 (8-11). The rest of the Country Guidance remained unchanged from when AA was promulgated in October 2015. However, the Home Office believes that there are very strong grounds supported by cogent evidence to justify not following the Country Guidance in respect of the security situation to the extent set out above”.

A relevant blog post  considers the  issues which arose  in the Court of Appeal: Humanitarian Protection: Court of Appeal revises and amends current country guidance AA(Iraq)

Prior to  that having regard to AA(Iraq) 2015,  this blog post Why Shouldn’t I Expect An Iraqi Appeal Based On A Claim For Humanitarian Protection To Be Allowed By The Tribunal?, placing reliance in AA(Iraq) 2015, put forward that “There should be no lack of confidence in appearing before Tribunal Judges with an  expectation  that Humanitarian Protection appeals from  Iraq nationals originating from one of the “contested areas” should  be allowed.  In practice, it appears  First Tier Tribunal Judges are allowing such appeals”.

 

March 2017 Country Information Note on the security and humanitarian situation:

In March 2017, the Home Office published guidance Country policy and information note: Security and humanitarian situation, Iraq, March 2017 indicating  that  the security situation in Iraq had  changed since the “ contested’ and ‘non-contested’ definitions were first used.  Therefore, “to avoid any confusion”,  Home Office caseworks were instructed to no longer use these definitions  in the context of the security situation in Iraq. The Home Office stated position was  made clear: “In general, the humanitarian situation is not so severe that a person is likely to face a breach of Articles 15(a) and (b) of the Qualification Directive/Articles 2 and 3 of the ECHR”.

Prior to the March 2017 guidance, Home Office country information and guidance on the security situation in Iraq had been divided into two sections: the ‘contested’ and ‘non-contested’ areas of the country. The:

  • ‘contested’ areas were Anbar, Diyala, Kirkuk (aka Tam’in), Ninewah and Salah al-Din governorates;
  • ‘non-contested’ areas were Baghdad governorate, ‘the south’ (Babil, Basra, Kerbala, Missan, Muthanna, Najaf, Qaddisiyah, Thi-Qar and Wasit governorates) and the Kurdistan Region of Iraq (KRI) (Dohuk, Erbil, Halabja and Sulamaniyah governorates).

From March 2017, the Home Office stated that the security  situation in Iraq  had changed since AA(Iaq)2015 as  the Upper Tribunal had  in that case considered  evidence up to April 2015. On the basis of that evidence, the  Upper Tribunal found that in areas of Iraq indiscriminate violence was at such a level that substantial grounds existed for believing that a person, solely by being present there for any length of time, faced a real risk of harm which threatened their life or person (thereby engaging Article 15(c) of the Qualification Directive). These areas are:

  • Anbar;
  • Diyala;
  • Kirkuk (aka Tam’in);
  • Ninewah;
  • Salah al-Din; and
  • the parts of the ‘Baghdad Belts’ (the urban environs around Baghdad City) that border Anbar, Diyala and Salah al-Din

The Home Office position in March 2017 was that, “the situation has changed since then.  Parts of Anbar that Daesh no longer controls or contests (including the Fallujah, Heet and Ramadi districts), Diyala, Kirkuk (except Hawija and the surrounding areas) and Salah al-Din no longer meet the threshold of Article 15(c). Ninewah and most of Anbar, however, still meets the threshold of Article 15(c)”.

The following blog post considers further issues raised within the  still current Country Information Note of March 2017:Obliterating AA: Home Office decision-makers instructed to no longer use “contested’ and ‘non-contested’ definitions in Iraqi security situations

 

September 2017 Country Information Note on return/internal relocation:

On 22 September 2017, other Home office policy guidance  was updated: Country policy and information note: return/internal relocation, Iraq, September 2017.

The Home Office maintain that since AA(Iraq)2015 was promulgated, the security situation has changed. In particular, it is considered that Daesh (Islamic State of Iraq and Syria/the Leavent) have lost territory; Government of Iraq (GoI) and/or associated forces have regained control of some areas;  the level of violence has declined; and Internally Displaced Persons (IDPs) are returning to their areas of origin. In this regards  reference is made specifically to the  March 2017 Country Information Note on Iraq: Security and humanitarian situation.

It is considered that internal relocation is, in general, possible to all areas of Iraq except:

  • Anbar governorate (but possible to the areas Daesh no longer controls, including the Fallujah, Ramadi and Heet districts),
  • Ninewah governorate,
  • the parts of Kirkuk governorate in and around Hawija, and
  • the parts of the ‘Baghdad Belts’ (the residential, agricultural and industrial areas that encircle the city of Baghdad) that border Anbar, Diyala and Salah al-Din.

The September 2017 Country Information Note also summarises as follows:

  • The Home office accept that a person cannot be returned or relocated to the areas of Iraq which meet the threshold of Article 15(c) (Anbar (except the parts that Daesh do not control, including the Fallujah, Heet and Ramadi districts), Ninewah, the parts of Kirkuk in and around Hawija, and the north, west and east parts of the ‘Baghdad Belts’)
  • In general, a person can relocate to Baghdad (except the north, west and east parts of the ‘Baghdad Belts’), the parts of Anbar governorate that Daesh does not control (including the Fallujah, Ramadi and Heet districts), Diyala, Kirkuk (except the areas in an around Hawija), Salah al-Din and the southern governorates (Babil, Basra, Kerbala, Najaf, Muthana, Thi-Qar, Missan, Qadissiya and Wassit).
  • In relation to feasibility of return, a person can only be returned (to Baghdad) if they have an Iraqi passport (current or expired), or a laissez-passer. If they do not have one of these documents then return is not ‘feasible’. A lack of these travel documents is a technical obstacle to return, and is not a reason itself to grant protection.
  • Decision makers must establish if the person can provide documentary evidence to substantiate their claim that they are unable to obtain the necessary documentation, for example by a letter from the Iraqi Embassy confirming what was submitted by the person to verify their identity but their identity/documentation could not be confirmed/issued.
  • A lack of these travel documents is a technical obstacle to return, but is not a reason itself to justify the grant of international protection.
  • People who originate from the KRI who have been pre-cleared by the KRI authorities are returned to Erbil Airport and do not require a passport or a laissez-passer.
  • A person who does not originate from the Kurdistan Region of Iraq (KRI) will be returned to Baghdad in the first instance. There is no real risk of harm to ordinary civilians travelling from Baghdad to the southern governorates.
  • In general, a Kurd or a person who originates from the KRI can relocate to (or within) the KRI. Non-Kurds generally cannot.
  • Unless they are returned to the KRI, a person will be returned to Baghdad in the first instance. Therefore, when considering internal relocation to the southern governorates (Babil, Basra, Kerbala, Najaf, Muthana, Thi-Qar, Missan, Qadissiya and Wassit), decision makers must consider whether the person will be harmed on the journey there from Baghdad. Decision makers must note that the Upper Tribunal in AA(Iraq) 2015 concluded that there is not a ‘real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates suffering serious harm en route to such governorates so as to engage Article 15(c) of the QD’ (paragraph 117).
  • In deciding whether a person can avoid poor humanitarian conditions, it is critical to determine whether they can acquire (or reacquire) civil documentation.
  • On 22 June 2017, the Court of Appeal in [2017] EWCA Civ 944, [2017] WLR (D) 466 remade one specific point in AA Iraq. It concluded: ‘Regardless of the feasibility of P’s return [our emphasis], it will be necessary to decide whether [a person] has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq’ (paragraph 42 (9)).
  • Decision makers must not, however, conclude that the absence of a CSID (or any other document), or the inability to obtain one (or any other document), automatically entitles a person to a grant of protection. In these circumstances, decision makers must first consider whether a person has family or other support that he can use to avoid destitution; and also bear in mind (if return is currently not feasible) that by the time return does become feasible (i.e. a person obtains a current or expired passport, or a laissez-passer) a person may then possess documents that act as a route to a CSID.
  • Decision makers must consider each case on its merits. A person will be expected to show why they could not reasonably obtain necessary documentation before it is concluded that a person is unable to obtain them.
  • If a person’s return is not feasible, and they have not established a need for protection based on a risk arising from a lack of documents, then decision makers should consider the Discretionary Leave (DL) policy and, if appropriate, grant a person leave in accordance with this policy, pending future reviews of their ability to feasibly return to Iraq.

 

Appreciating the importance and relevance  of  Iraqi  civil documentation in a claim for Humanitarian  Protection:

Two of the most important documents used in Iraq are the Iraqi Nationality Certificate (INC) and the Iraqi Civil Status ID (CSID). These documents are also a gateway to other important documents.

The Iraqi National ID Card (INID) replaces the INC and the CSID. However, old IDs are still accepted and the INIC is only implemented, so far, in the cities (not the suburbs) of the KRI. If applicable, Home Office decision makers are required to carefully consider whether a person can obtain this document.

In AAIraq)2015, the Upper Tribunal held that:

‘A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If [a person]…shows there are no family or other members likely to be able to provide means of support, [the person]… is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to [the person]… by the Secretary of State or her agents to assist [the person’s]… return have been exhausted, it is reasonably likely that [person] will still have no CSID’ (paragraph 204, sub-paragraph 11).

A person who:

  • is unable to replace their CSID or INC; and
  • is unable to obtain support from family members or others

is likely to face significant difficulties in accessing services and humanitarian conditions which may reach the Article 3 threshold. In these circumstances a grant of Humanitarian Protection (HP) will be appropriate.

The Home Office position however is that it is likely that most people who do not possess a CSID, and whose return is feasible (i.e. they possess a current or expired passport, or a laissez passer), will be able to obtain a CSID from the Iraqi Embassy in London, or through proxies in Iraq.

 

How to obtain an Iraqi passport:

As a CSID is needed to obtain a passport, a person who has a passport should also have a CSID.

In (AAIraq)2015, the Upper Tribunal held that:

‘Where return is ‘feasible’ because a person is in possession of a laissez passer (an emergency travel document), a person is likely to need a CSID or Iraqi Nationality Certificate or photocopy of a previous Iraqi passport and a police report noting that it had been stolen’ (paragraph 170).

In such cases, the Home Office position is that  it is likely that the person would either possess a CSID or other documentation which enables a CSID to be reissued at the Iraqi Embassy.

Sections 6.2 of the September 2017 Country Information Note clarifies how an Iraqi passport can be obtained. It is noted that the website of the Passport Affairs Directorate, General Directorate of Nationality, Ministry of Interior detailed that to obtain an Iraqi passport a person (who is 18 or over) needs to present:

  • a form with completed person information, filled out exactly according to the information on the Civil Stats ID (CSID);
  • a CSID;
  • an INC;
  • a Residency card (for those outside Iraq);
  • photographs;
  • a cheque for 25 thousand Iraqi Dinars (about £16)
  • to an Iraqi consulate, where they will also take a person’s fingerprints

 

What is a Civil Status ID( CSID) and how to obtain one:

In Arabic the Civil Status ID (CSID) card is called Bitaka shakhsiyeh, but it is also referred to as Bitaqa hawwiya, Al-Bitaqat al-Shikhsiya, or Jensiya.

The CSID is a form of photo identification. Sections 5.4.2 to 5.4.4 of the September 2017 Country Information Note  clarify what a CSID should contain.

CSID cards are issued by the Ministry of Interior, Iraqi Civil Card Directorate. It is the ‘basic’ ID card and ‘main card’ for identification in Iraq and should be held by all citizens.

The CSID card is considered the most important personal document and is used for all contact with public authorities, health care, social welfare, schools and for the purchase and sale of homes and cars. The CSID card is also required when applying for other official documents, such as passports.

Sections 5.4.9 to 5.4.11 of the September 2017 Country Information Note clarify what is required to obtain a CSID in Iraq.

 

Acquiring a CSID in Iraq if the person is not from an Article 15(c) area: Sections 2.4.20 to 2.4.23 of the September 2017 Country Information Note set out how a person acquires a CSID in Iraq if the person is not from an Article 15(c) area.

The Upper Tribunal in AA(Iraq)2015 held:

‘… [T]hat an Iraqi national should as a general matter be able to obtain a CSID from the Civil Status Affairs Office for their home Governorate, using an Iraqi passport (whether current or expired), if they have one. If they do not have such a passport, their ability to obtain a CSID may depend on whether they know the page and volume number of the book holding their information (and that of their family members). Their ability to persuade the officials that they are the person named on the relevant page is likely to depend on whether they have family members or other individuals who are prepared to vouch for them (paragraph 186).

A person from an area that does not breach Article 15(c) who needs to replace their CSID and INC will, in general, be able to go to their local Civil Status Office/General Nationality Office in their place of origin to replace them. A person returned to such an area on a current or expired passport will, in general, be able to reacquire their CSID in Iraq.

Where a person is:

  1. from an area of Iraq where the level of indiscriminate violence does not breach Article 15(c);
  2. does not possess a CSID; and
  3. is being returned on either a laissez passer or European Union letter (EUL) (currently only in certain cases to Erbil)

decision makers must establish:

  • what identity documentation the person possesses;
  • whether they will be able to reacquire a CSID;
  • what family members or other contacts they have, where in Iraq they are and if they will be prepared to ‘vouch’ for them in reacquiring documents;

and, if appropriate, whether the person knows the page and volume number of the book holding their civil status information, or that of family members.

The September 2017 Country Information Note states that sources have confirmed that in some cases an INC cannot be issued by a person’s local General Nationality Office. In these cases, a person may need to obtain a replacement through the Ministry of Interior in Baghdad.

Home Office decision makers are required to carefully consider whether a person returned to Erbil using an EUL can acquire their CSID in Iraq.

 

Acquiring a CSID in Iraq if the person is from an Article 15(c) area: Sections 2.4.24 to 2.4.27 of the September 2017 Country Information Note set out   whether it is possible  for a person to acquire a CSID in Iraq if the person is from an Article 15(c) area.

It is acknowledged that it is not  known whether registration records held in some areas that breach Article 15(c) are intact or accessible.

The Upper Tribunal in AA(Iraq)2015 held that:

‘An Iraqi national’s ability to obtain a CSID is likely to be severely hampered if they are unable to go to the Civil Status Affairs Office of their home Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the “Central Archive”, which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which a person could apply for formal recognition of identity. The precise operation of this court is, however, unclear’ (paragraph 187).

And that:

‘… in seeking to reacquire documents in Iraq, such persons would need either a passport (current or expired), or, if they did not have such, know the page and volume number of the book holding their information (and that of their family members) and/or have family members or other individuals who are prepared to ‘vouch’ for them’ (paragraph 186).

The September 2017 Note states that information from the UNHCR in May 2016 suggests that alternative CSA offices for certain parts of Ninewah have been set up elsewhere in Iraq, including in Dohuk, Kerbala and Najaf.

 

Replacing a CSID: Sections 6.3 to 6.3.16 of the September 2017 Note  sets out information  on how  to obtain a replacement CSID.

 

Obtaining a CSID in the UK: Sections 2.4.14  to  2.4.16  of the September 2017 Note sets  how a CSID can be obtained in the UK.

In AA(Iraq)2015, the Upper Tribunal held that:

‘[i]t is possible for an Iraqi living in the UK to obtain a CSID through the consular section of the Iraqi Embassy, if such a person is able to produce a current or expired passport and/or the book and page number for their family registration details. For persons without such a passport, or who are unable to produce the relevant family registration details, a power of attorney can be provided to someone in Iraq who can thereafter undertake the process of obtaining the CSID for such person from the Civil Status Affairs Office in their home governorate’ (paragraph 177).

Information from the UNHCR in May 2016 suggests that a power of attorney cannot be provided for IDPs in Baghdad and that someone will need to present themselves in person to re-obtain their CSID.

If a person is from an area that does not breach Article 15(c), he is expected to explore whether he can use a proxy to replace their CSID or INC. It will not be reasonable to expect a person to use a proxy to reacquire documents from their place of origin if that place is in an area where the level of indiscriminate violence is at a level that breaches Article 15(c) of the Qualification Directive.

 

How to obtain an Iraqi Nationality Certificate (INC):

Sections 5.5.1 to Section 5.5.5 of the September 2017 Information Note clarify why an INC is required and how it is issued.

The Nationality Certificate (INC) in Arabic is called shahadat jinsiyya or shahdat al-Jinsiya al-Iraqiya. Essentially, the document proves that someone is an Iraqi citizen.

The INC is a booklet upon which the picture of the owner is fixed. The cover is black. The INC proves that a person was an Iraqi citizen

Sources state that the INC is necessary when applying for work in the public sector and to access other public services. It is also required to apply for other documents, such as passports and birth, marriage and death certificates. This was partially corroborated by a UNHCR Country of Origin report on Iraq dated 2005, which noted that the INC, together with the CSID, were ‘requested for any kind of interaction with the authorities, such as an application for a food ration card, school registration, and the issuance of death and birth certificates.

Children can get an INC from an early age, but it is common to get them from the age of 12.

According to Nezar Rahmatollah Aziz, General Director of Passport and Nationality in the Kurdistan Region, INCs were issued at the General Directorate of Nationality’s local offices, found in all governorate capitals, although the certificates were only produced in Baghdad. This was corroborated by information provided from UNHCR Baghdad in November 2011.

Information in relation to the documents a person needs to apply for an INC is referred to between Sections 5.5.6 to 5.5.9 of the September 2017 Information Note.

Further information on  issuance or replacement  of an  INC  is  contained in Sections  6.4 to 6.4.6  of the September 2017  Information note.

 

The Iraqi National ID Card (INIC):

Sections 5.6.1 to 5.6. 7 of the September 2017 Country Information Note clarify how an INIC is issued and what information it contains.

The Iraqi National ID Card is issued by the Iraqi Ministry of Interior. It replaces the Nationality Certificate and Civil Status ID.

Old IDs are still accepted and the Iraqi National ID card is only implemented, so far, in the cities not suburbs in the KRI. The plan for the new card is a merger of both the CSID (Hawya Ahwal Al mdani) and the Iraqi Nationality (Jinsiya) in one solid document. The aim is to complete the process by end 2018. By end 2018 the new ID will be used instead of the current information card (Bitaqat Al Ma3lumat). The aim is to renew, update and clean the old database system to stop attempts of duplications and forgery; and to unify all different type and issued ID for both regional and central government for the period of 1991 – 2003 then 2003 -2016.

 

Internal Relocation- entry to the Kurdistan Region of Iraq (KRI):

Sections 7.2 to 7.2.3 of the September 2017 Information Note set out information  in relation to  Iraqi citizens who want to apply for a residence permit in the  KRI and clarifications as  regards sponsorship.

In relation  to economic opportunities in the KR, the September 2017 Note clarifies:

“7.2.4 The source also commented on economic opportunities in the KRI:

‘Three sources said that the number of job opportunities in KRI is very limited for the host community as well as for IDPs. In this respect, ERC stated that, due to the financial crisis in KRI, even people from the host community are losing their jobs. Three sources indicated that the private sector is affected by the crisis, including the construction business and the oil business. Being among these sources, IRC added that many jobs in the oil sector are occupied by foreign labour.

‘When asked in which fields IDPs typically find jobs, three sources said that IDPs who manage to get a job will often find it in low-skilled fields, for instance construction or casual work in agriculture or restaurants. IRC further stated that IDPs with an education may be able to find work with NGOs; however, the number of jobs available in this field is low.

‘It was stated by three sources that the public sector is not adding new jobs, and three sources pointed to the fact that the Kurdistan Regional Government (KRG) has not paid salaries to government employees since June 2015. IOM said that it is not possible to live on a salary of a civil servant under the Kurdistan Regional Government (KRG) administration”.

Various sources stated that publicly employed IDPs are still supposed to receive their salary from the central government in Baghdad. Two sources, however, said that as of September 2015, there is a delay in the payment.

‘Different figures were given by three sources on the current unemployment rate in KRI, ranging from 6.5 percent to 35 percent.

‘Three sources pointed to competition for jobs in KRI between host community members, IDPs and Syrian refugees. Three sources said that IDPs are typically willing and able to work for lower salaries than members of the host community. IOM stated that they, as an organisation, are facing difficulties to find employment for Kurdish returnees who went back to KRI from Europe, as many companies downsize their workforce.

 

Internal Relocation-Entry restrictions in Baghdad and the south: 

Entry restrictions in Baghdad and the South are considered between Sections 8.2.1 to 8.2.7 of the September 2017 Note in relation to population movement limitations, documentation and sponsorship requirements, and checkpoints barring IDP entry, as well as the overall lack of humanitarian access, safety, and support afforded to IDPs and other conflict-affected populations countrywide.

 

Conclusion

 

It is important to be aware of the relevance of Iraq  civil documentation. This is because in deciding whether a person can avoid poor humanitarian conditions, it is critical to determine whether they can acquire (or reacquire) civil documentation.  In most Iraqi claims, the argument on behalf  of claimants is usually that they are  unable to acquire the documentation.

It is clear that despite the Home Office’s current  position, AA(Iraq) 2015 is still applicable  and un-overturned country guidance caselaw. It is however noteworthy that the Court of Appeal, in the case of SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012)  stated that ‘decision makers and tribunal judges are required to take Country Guidance determination into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so’ (paragraph 47).

In decision- making,  the Home office will focus on maintaining  that the security  situation in Iraq  has changed since AA(Iaq)2015  was  heard and decided.  They will also  insist that  return and relocation is possible in areas  not caught by the exceptions  in their September 2017 Country  Information Note. The Home Office  very rarely  serve their own Country  Information Notes upon the Tribunal or an appellant- it is not clear why. The  updated Home Office Country Information Notes will  therefore always  need to be  presented  to the Tribunal in a given case.  In such circumstances,  despite AA(Iraq)2015 still being relevant, it is for  an appellant  to seek to provide updated relevant background evidence from reliable sources to counter the  Home Office  Country Information  Notes. Where permitting, instructing a relevant  Country Expert may also be necessary.

 

 

 

What you need to know about Home Office fee waiver applications

Considering how much the Home Office charge  in relation to  applications   for leave to remain,  the recent  expansion of the categories  of  those who can apply for a fee waiver, at first blush  seemingly  considerate,  should be  viewed with suspicion.

The Home Office amended their fee waiver policy guidance Fee waiver: Human Rights-based and other specified applications on 30 August 2017 but also make clear it that, Applicants who fail to disclose their financial circumstances in full, or who provide false information in their fee waiver application, may have current or future applications for leave to enter or remain refused because of their conduct (see General grounds for refusal guidance). They may also be referred for enforcement action, resulting in possible arrest and removal”.   This on its own is sufficient  to make a few future applicants  hesitant in relying upon the fee waiver policy.    A genuine error could be made in the preparation of a fee waiver application.  The result however  could be a refusal  based on conduct- not only that  arrest  and removal could follow.   A refusal decision based on  this ground is likely to taint  the   rest   of the claim more so where  a case proceeds to appeal on issues that hinge on credibility  or reliability  of other supportive documents.

Even though Home Office caseworkers must make reasonable efforts to decide such applications promptly, no service standards apply to the assessment of whether the applicant qualifies for a fee waiver.   It is only where  the applicant qualifies for a fee waiver and their application is passed to a caseworking team for substantive consideration, that  normal service standards will apply to the consideration of the application. In practice therefore, a fee waiver application  can take up to 5months to be considered. The consideration of the substantive application itself can then  take 6more months to be considered. In such circumstances, where a fee waiver application is successful, nearly  11months  or more can go by without a substantive decision being received from the Home Office. That is the price to be paid for   requesting that the home office waive their fee……….  that and  the  lack of any guarantee  in the interim that such  a waiver application will be successful.

On balance however   there is more to be said  in relation to relying upon  the fee waiver policy. Take for example  a 7year Rule FLR(FP) application in a case concerning   two  parents and   3 children- with such a family  unit  either  placing reliance upon  other  family members  or  friends  to  support them or even finding that  the  parents work illegally. The  fee waiver policy itself contemplates such a scenario and provides that   if a person discloses in their fee waiver application that they are, or have been, receiving income through working, but they do not have permission to work, their earnings and any cash or savings derived from this work will still be an asset when assessing eligibility for a fee waiver. The applicant will however   be informed by a Home Office caseworker  that they may be committing a criminal offence and should stop working immediately. In such a scenario the total that would be required  in relation to the Home Office application fee(£4965.00 ) and NHS surcharge(£2500.00) would be £7465.00. The   pointers are that  place reliance  should be placed  upon the Home office  fee waiver  policy.

Where a Home Office fee waiver application is successful but   the related substantive  application under the  7year Rule is subsequently refused,  upon lodgement of an appeal for the given  family unit,  there will be no  requirement to pay the additional  appeal fee of  ( £140 x 5)  £700.00.  The original  related Home Office fee waiver  renders the family  exempt from  paying the appeal fees.

Where there is no imminent risk of removal or no  real potential  of  invalidation  of  an application where a claimant had valid to  remain at the point of submission,  it is well worth the effort in preparing and submitting an application  for a fee waiver.  If an  application is invalidated for failure to  provide  Home Office fees  not having met the  requirements of the fee waver policy, then  that application can be re-submitted  where sufficient  funds have been gathered or when the   fee waiver policy  requirements are eventually  met.

 

Applicants Who Are  Able to Apply For A  Fee Waiver

The following applicants can apply for a  fee waiver:

  • 5-year partner and 5-year parent route (ECHR Article 8 rights): Applicants for leave to remain as a partner on the 5-year route to settlement whose sponsor is in receipt of one or more of the benefits specified at paragraph E-LTRP.3.3. of Appendix FM to the Immigration Rules are not required to meet the minimum income threshold. Instead, they are required to demonstrate that their sponsor can maintain themselves, the applicant and any dependants adequately in the UK without recourse to public funds. Applicants for leave to remain as a parent on the 5-year route to settlement are not required to meet the minimum income threshold and are required to demonstrate that they are able to maintain themselves and any dependants adequately in the UK without recourse to public funds.
  • 10-year partner, parent or private life route (ECHR Article 8 rights): The fee waiver policy applies to applications for leave to remain under the 10-year partner, parent or private life route.
  • Extension of leave to remain where applicant was refused asylum or humanitarian protection and granted Discretionary Leave: Applicants who have been refused asylum or humanitarian protection but granted discretionary leave (DL), and who seek to extend their leave, can apply for a fee waiver where they claim that refusal to grant further leave would breach their rights under the ECHR.
  • Extension of Discretionary Leave for victims of trafficking or slavery: Applicants who have received a positive conclusive grounds decision from a competent authority of the national referral mechanism (NRM) and who were granted Discretionary Leave because of their compelling personal circumstances, to pursue a claim for compensation against their traffickers, or to assist with police enquiries, can apply for a fee waiver. The circumstances for this include where they have already accrued 30 months’ DL, are seeking to extend it for reasons related to trafficking or slavery as set out in the Competent Authority Guidance.

 

Applicants Who Are Not  Able to Apply For A Fee Waiver:

The following  applicants cannot  apply for a  fee waiver:

  • Applications for the 5-year partner route that require the minimum income threshold to be met : There is no fee waiver available for applicants for leave to remain under the 5-year partner route whose sponsor is not in receipt of one or more of the benefits specified at paragraph E-LTRP.3.3. of Appendix FM to the Immigration Rules. Such an applicant must meet the minimum income threshold and so they are not eligible for a fee waiver.
  • Applications for indefinite leave to remain (ILR): Applications for ILR are not covered by the fee waiver policy. ILR applications need to be accompanied by the correct fee in order to be considered.

 

Other Changes/ Clarifications   Made On 30 August 2017

  • Family units : The changes in August 2017 removed the requirement for parents to have applied for a fee waiver in order for their children to be eligible to apply for a fee waiver. Where the main applicant states that they can pay the fee for their application (or for their application and for the application of some of their dependants) but are unable to pay the fee for the application of one or more of their dependants, the dependants may apply for a fee waiver. In these circumstances, the main applicant will be asked to specify which dependants are applying for a fee waiver and must enclose an Appendix 1. The Appendix 1 must include the financial circumstances of the household, including the main applicant, their partner (if any) and any other adult with whom the main applicant lives and from whom they receive financial support, as well as the financial circumstances of all dependants. Where a dependant has or dependants have applied for a fee waiver in their own right, the assessment of whether or not they qualify for a fee waiver should be based on the financial circumstances of the household. This includes those of the main applicant, their partner, and any other adult with whom the main applicant lives and from whom they receive financial support, along with the financial circumstances of all the dependants, including themselves.
  • In-time application for an extension of their leave: Applicants who apply in-time for an extension of their leave, and whose fee waiver application falls for refusal, will normally be provided with 10 working days in which to validate their application by paying the fee or by demonstrating that they qualify for a fee waiver . If the applicant made their application in time (for example they had valid leave on the date their application was submitted), they should normally be advised that they do not qualify for a fee waiver and that if they wish to validate their application, they must, within 10 working days, either pay the specified fee or submit additional evidence that demonstrates they qualify for a fee waiver. If the fee is paid within that period or additional evidence is provided within that period that demonstrates the applicant qualifies for a fee waiver, and the application meets the other validation criteria, it should be forwarded to the relevant caseworking section for consideration. If the applicant provides further evidence within 10 working days but this does not demonstrate that they qualify for a fee waiver, the application should be rejected as invalid. If no further evidence is provided and the fee is not paid within 10 working days, the application should be rejected as invalid. If the applicant had no valid leave at the date of application, they should normally be advised that they do not qualify for a fee waiver and their application should be rejected as invalid. In order to have their application considered, the applicant would need to reapply with the specified fee or make a new application for a fee waiver.

 

Qualifying For  A Fee Waiver

An applicant (including a dependant who is seeking a fee waiver) who meets one of the 3 criteria listed below will qualify for a fee waiver:

  • where the applicant has demonstrated, by way of evidence, that they are destitute.
  • where the applicant has demonstrated, by way of evidence, that they would be rendered destitute by payment of the fee, because whilst they have adequate accommodation and can meet their other essential living needs:(a)they have no disposable income such that, without compromising their ability to accommodate themselves adequately or meet their other essential living needs, they could now either pay the fee or save the required amount within a reasonable period (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time, taking into account in particular the potential impact of such a delay on their immigration status and access to work and benefits)(b)they are unable to borrow the required amount from family or friends (c)there is no basis for believing that the applicant’s financial circumstances are likely to change within a reasonable period (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time)
  • where the applicant has demonstrated, by way of evidence, that notwithstanding the fact that neither of the above criteria apply, there are exceptional circumstances in their case such that a fee waiver should be granted.

A ‘reasonable period’ over which an applicant could be expected to save from their disposable income in order to pay the specified fee should be assessed in light of all the circumstances of the case. The reasonable period would not generally be expected to exceed the period of any extant leave or the period for which they would be entitled to reside here under the European Economic Area (EEA) regulations (for example as the primary carer of an EU citizen). An applicant would normally be expected to make their application for leave to remain close to the expiry date of their current basis of lawful stay and the Home Office view  is that they could reasonably be expected to save towards the fee during that period but not beyond it. Such a ‘reasonable period’ would not arise in respect of an application made out-of-time or made within the period of 28 days before the expiry of their extant leave in which applicants for further leave are normally advised to make their application.

 

How To Apply For A Fee Waiver

Applicants who wish to apply for a fee waiver should indicate on the main application form that they wish to rely on a fee exemption and then complete Appendix 1: Request for Fee Waiver  and enclose documentary evidence of their financial circumstances.

A new Appendix 1: request for fee waiver was published on 31 August 2017. The previous Appendix  1 was 19pages however the newly published  form  is 25pages in length.

The new form now clarifies as follows:

“You should not pay the Immigration Health Surcharge (IHS) if you are applying for a fee waiver. Applicants who are granted a fee waiver are not required to pay the IHS. However, applicants who are refused a fee waiver and who are required to pay a fee in order to validate their application, will be required to pay the IHS at that stage, unless they qualify for an IHS exemption on another basis”.

Appendix 1 requires that every section of the form must be completed.

Most importantly, a new section has been  introduced “Section 9 – Household income and outgoings” which sets out a table requiring completion  with details of the household monthly income and outgoings. The  household monthly income should be based on the average monthly income  the applicant’s household receives over the period of six months prior to the application. The  household includes  the applicant,  their partner,  their  dependants and any other persons with whom  the c applicant lives and on whom  they  depend for financial support.  The applicant’s monthly outgoings should be an average of  their monthly outgoings based on the period of six months prior to the application. The information provided  should be supported by documentary evidence submitted with  the application. All figures provided in the table must be supported with evidence/documentation.

The table requires completion of the following information where relevant:

A breakdown of monthly income :

  • Wages (net wages after deductions): £
  • Overtime (net after deductions): £
  • State Benefits: £
  • Pension (Private/State): £
  • Drawings from business: £
  • Profit from business: £
  • Income from trust: £
  • Dividends from shares: £
  • Interest from savings: £
  • Assistance from family/friends: £
  • Assistance from Local Authority: £
  • Other (please specify): £

Total: £

A breakdown of monthly outgoings is as follows:

  • Tax (if self-employed) £
  • National Insurance (if self-employed) £
  • Rent/Mortgage £
  • Car/Travel Expenses £
  • Gas £
  • Electricity £
  • Water £
  • Food £
  • Clothing £
  • Mobile Phone £
  • Telephone/Broadband £
  • Sky/Cable TV £
  • Insurance £
  • Gym Membership £
  • Other (specify) lots of potential outgoings not listed here

Total: £

 

What If An Applicant Is Unable To Provide  Relevant Documentary Evidence?

Where the applicant states that relevant documentary evidence cannot be provided, for example where an applicant is street homeless, the Home Office caseworker will need to be satisfied that the person’s circumstances are as they claim, by making an assessment of their credibility. The applicant should be able to provide information as to how their financial position has changed over time, and may  be considered still  able to provide some evidence, depending on the nature of their circumstances, such as bank statements, an eviction notice, or written testimonies from people previously or currently providing them with support.

 

What The Home Office Will Consider:

  • The onus is on the applicant to demonstrate that they qualify for a fee waiver. Home Office caseworkers will normally expect to see information and evidence relating to the applicant’s income, their accommodation, the type and adequacy of this, and the amount of their rent/ mortgage or of their contribution towards this, and their outgoings in terms of spending on things like food, utility bills. This information should be supported by independent evidence, such as their pay slips, bank statements, tenancy agreement, utility bills.
  • Applicants are required to provide full details of their financial circumstances, including statements covering the 6 month period prior to the date of application for any bank or building society account they hold. They must also provide a full breakdown of their monthly income and expenditure at the time of application.
  • The Home Office caseworker must take into account the applicant’s household income and assets, including income and assets belonging to the applicant’s spouse or partner (as well as any other adult with whom the applicant lives and from whom they receive financial support) and to their children and any other dependants. Provision of financial information relating to parents will be required only where the applicant is financially dependent on their parents.
  • If the applicant is being supported by family or friends, a local authority or a registered charity, the Home Office caseworker should expect to see corroborating documentary evidence confirming provision of support and detailing the nature and amount of the support provided. In all cases evidence must be up-to-date. Documents dating back more than a couple of months will be useful in establishing how the person’s finances have changed over time, but should be given little weight in establishing whether the applicant meets the fee waiver policy now.
  • Applicants in receipt of local authority support: The applicant will not be able to rely solely on the fact that they are in receipt of local authority support if there is evidence that they have additional assets or income or that that support is being provided for social care reasons which do not include preventing destitution. If an applicant is being supported by a Local Authority, the Home Office will also require formal documentation to evidence this. The applicant should provide full details of exactly what the support consists of, why they are eligible for such support and when the support began.
  • Applicants in receipt of support from a registered charity: Applicants who are being supported by a registered charity will need to provide evidence of their financial position and accommodation arrangements. They should be able to provide documentary evidence from the registered charity explaining the nature and amount of the support being provided and why the applicant is being provided with support.
  • Welfare benefits and tax credits: If an applicant or their spouse or partner (or any other adult with whom the applicant lives and from whom they receive financial support) or parents is in receipt of welfare benefits, child benefit or tax credits, this support should be taken into consideration as income when assessing eligibility for a fee waiver.
  • Support from family or friends: Support provided to the applicant or a dependent family member by family or friends must be considered in assessing their income and outgoings. Such support could be financial or in terms of providing accommodation or meeting other essential living needs, such as providing food or paying bills. If this support is of a limited duration or is about to end, the applicant must provide a full explanation of why this is so, along with relevant documentary evidence. An example of the sort of documentary evidence which could be provided might include a signed statement from the person who has been providing them with support explaining why they are no longer able to do so. Documentary evidence of that person’s financial situation showing the support provided, such as regular payments to the applicant’s bank account, and demonstrating that the person’s financial circumstances have changed such that they cannot continue to support the applicant should also be provided.
  • If a person has been without any formal or obvious means of support (such as income from employment or local authority support) for a prolonged period, it may be reasonable for the Home Office caseworker to assume that the person has had, and may continue to have, access to an alternative form of support (for example, income from overseas or from a relative or friend), unless the applicant provides evidence that this is not the case or that their circumstances have changed and that they are now without any means of support. The applicant will need to provide relevant evidence of their income and expenditure so that their disposable income can be calculated
  • If the applicant qualifies for a fee waiver, their application form for leave to remain will be passed to the relevant caseworking unit for consideration.

 

Other Considerations And Some tactics

It is only possible to know that a fee waiver application has been  successful at the point at which   the Home Office send out a letter to an applicant requiring that  their  biometrics be enrolled.

Initially, within about  two weeks of receiving  the application the Home Office will send out a standard short letter to the applicant (and to each of  their relevant dependants) to the  following effect:

“Thank you for your application  for permission to stay in the UK. Your application raises  issues  relating to the European Convention  on Human Rights  which are complex in nature. As such, it falls outside   our normal service standards for deciding  leave to remain applications. Please be assured  that we will make a decision on your case as quickly as possible”.

Thereafter, within 5 months or so, if   the fee waiver application is successful  the Home Office will send out a letter requiring that  biometrics be enrolled without paying a fee.  It is important however to note that  failure to have biometrics  enrolled will result in the application being rejected. Further,  grant of a fee waiver does not guarantee that the leave to remain application will be successful.

Where the fee waver application is refused, the Home Office  will  provide reasons  of some detail for refusing the fee waiver application.

Preparation of fee waiver applications can  be  time -consuming, sometimes even more  so than the substantive  application itself.

There being a requirement to submit a separate FLR(FP)  form in addition to the fee waiver form itself, the  same principles should apply  in the consideration of making representations in relation to a fee waiver application. Prepare the substantive application  representations  separately from the fee waiver representations but submit both at the same time.  Additionally or in the alternative  to fee waiver  representations,  a  specific statement can be prepared by  the applicant justifying  why a fee waiver application should be  granted.

The fee waiver form requires responses/clarifications to be set out in  boxed spaces  provided.  Bar  provision of figures, full names,  dates of birth or addresses needing to be completed within the form itself, for  the sake of consistency and ease of reference, consideration can be given  simply to indicating within the spaces provided that reference should be made to the attached detailed fee waiver representations or statement. The  consolidated fee waiver representations or statement should therefore  address  in full all questions  posed within the fee waiver application form.

The fee waiver  representations/statement should  set  out the  factual position and  at the same time also  refer to the relevance of the documentary evidence provided.

 

Conclusion

Having regard to the above set out  given scenario covering a family unit of 5, where leave to remain  is  granted on the 10year route to settlement,  for  how long  must  that  family unit  continue to  pay increasing Home office application fees  or the surcharge?  In  time,  a 7year old child born  in the UK   might be eligible to apply for  registration as a British citizenship from the point they  reach 10years  of age, however that still leaves the parents needing to submit future extension applications.  The Home Office fee waiver policy guidance  exists for a  reason. Familiarity   with the policy is a must –  it  is better  for an applicant to exert a  little more effort in the preparation  of  a relevant fee waiver  application   than  to spend a vicious cycle of 10years or 5years  duration,  working and earning to   “give” to the Home Office .

 

 

 

 

 

 

 

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