Seeking to Deport EEA Nationals From The UK Before their EEA Appeals are Heard -EEA Deportations, Appeals and Regulation 24AA Certification

Having regard to EEA law with particular reference to the provisions of the  Directive 2004/38/EC and the differing levels of protection it provides to EEA nationals   against expulsion, the  Home Office have been aware for a considerable length of time of how difficult it is to seek to remove EEA nationals, even those subject to deportation having been convicted of criminal offences in the United Kingdom.   In brief the mentioned Directive provides that  EU member states may take expulsion decisions against Union citizens and their family members on grounds of public policy, public security  and public  health with such measures requiring to be  justified and in compliance with the principle of proportionality. The personal conduct of the  EEA citizen must also represent a genuine, present and sufficiently  serious threat affecting one of the fundamental interests of society.

It  is however becoming increasingly clear since the coming into force of Regulation 24AA of the 2006 EEA Regulations that the Home Office are making efforts to deport EEA nationals almost on the same basis as non -EEA foreign national criminals by resorting to human rights considerations and certifying arising human rights claim as a justification of effecting increased deportations rather than applying relevant law originating from the parent Directive 2004/38/EC.  Regulation 24AA was initially rolled out to a limited cohort of cases from 28 July 2014 however that first phase came to an end on 17 October 2014 and as such   the full practical effect of the regulation having wider applicability is now being felt. Regulation 24AA certification must now be considered in all deportation decisions made pursuant to the 2006 EEA Regulations unless it falls within certain exceptions.

In order to seek to substantially reduce the numbers of  EEA nationals having their appeals heard whilst they are present in the UK, regulation  24AA is being applied by the UK government to take effect  whether or not an EEA national has had a chance to appeal a negative EEA decision or where he has so appealed but the appeal is yet to be determined .   The effect of regulation 24AA is that the Home Office can issue a certificate within the negative decision and warning that removal directions may or will be set directing  the EEA national’s removal from the UK pending the outcome of the appeal so long as the Home Office is satisfied that removal would not be unlawful under Section 6 of the Human Rights Act 1998 which requires the Home Office not to act contrary to the Human  Rights Convention. The grounds upon which the Home Office can certify the decision include that the EEA citizen would not before the appeal is finally determined face a real risk of serious irreversible harm if removed from the United Kingdom.   This sets a very high threshold to overcome.

Where such removal directions are set, in order to prevent removal the Home Office will expect that an application for an interim order/injunctive relief be made to the Upper Tier Tribunal or other Court.   Such applications are usually made by way of a judicial review claim. So long as the interim order application has been submitted to the Upper Tribunal or relevant Court the removal will be deferred upon proof of an issued sealed claim without a decision upon  the interim order having actually  been taken by the Tribunal at the same time as lodgement.

There are however certain exceptions set out within regulation 24AA where removal will take place even if an application for an interim order is made. Regulation 24 AA has an accompanying Home Office Guidance Policy, ie The Regulation 24AA Certification Guidance for European Economic Area Deportation Cases Version 2.0 , 20 October 2014. The guidance applies to any EEA national or non-EEA national with enforceable EU law rights who fall to be deported under regulation 19(3)(b) of the 2006 EEA Regulations. The guidance among other provisions also provides for some very limited cases considered not suitable for regulation 24AA Certification.

The application of a regulation 24AA certificate therefore does not prevent a person from lodging an appeal from within the UK, rather, by amending regulation 29 of the 2006 EEA Regulations, it removes the suspensive effect of that appeal so that whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK.  The amended EEA Regulations however allow a person who has been deported to apply from out of country for permission to re-enter the UK solely in order to make submissions in person at their appeal hearing. The question currently appears to be whether removal and exclusion of EEA nationals by reliance on provisions stemming from regulation 24AA is lawful and justifiable as this regulation appears to focus on human rights considerations.   Although the human rights claim may have been certified, the EEA claim itself will not be. It may be argued that the resultant removal directions cannot be relied upon to deport the EEA national where the only reason is that there is a certification the human rights claim whilst the EEA appeal/claim remains pending. It can also be readily argued that having regard to the parent Directive, to the need to justify EEA deportations and   to only deport where it is proportionate and justifiable to do so the introduction of regulation 24AA and its accompanying policy appears somewhat contrary to basic EEA principles on expulsion of EEA nationals from host member states.

It appears that as long as the Home Office are satisfied that pending the outcome of the appeal, removal of an EEA national will not be unlawful under Section 6 of the Human Rights Act 1998 then removal of an EEA national subject to deportation is justifiable.   In this regards, an issue deserving of real consideration is that as a right of residence under EEA law provides a higher level of protection than that under a human rights claim, in  order to seek to circumvent the practical effect of regulation 24AA an EEA national may tactfully seek to exclude reliance upon human rights provisions during the course of a claim or appeal. The Home Office may however seek to treat a human rights claim as impliedly raised in any case depending on the facts put forward during the claim.   The current Home Office   approach seeming to combine   EEA law and human rights law however should not be necessary as these are separate and distinct areas of law. The grounds for certification in  regards to Regulation 24AA are based on a test of facing a real risk of serious irreversible harm if the EEA national is removed. Where an EEA claim or appeal is raised, having  regard to EEA law the grounds upon which exclusion of an EEA national are to be justified are set out within the parent Directive. Regulation 24AA contains none of the relevant EEA considerations required to justify exclusion more so when that regulation is clearly stated to be intended to have regards to human rights considerations.

Pending some detailed clarifications from the higher courts, the issue therefore is whether it is lawful for the Home Office to seek to set removal directions and exclude an EEA national from the United Kingdom having regard only to human rights provisions of the ECHR as opposed to relevant provisions of the parent Directive 2004/39/EC whilst an EEA claim remains pending and uncertified. There is thus currently an argument to be put forward that a regulation 24 AA certification as it applies in practice has the effect that reliance upon it to exclude EEA nationals from the UK before their deportation EEA appeals are heard may result in a breach of EEA law itself generally and a breach of the EEA national’s individual rights specifically.

The Government’s Deport First, Appeal Later Policy – Deportation of Foreign National Criminals and Appeal Rights After the Immigration Act 2014

INTRODUCTION

The Government has brought in changes in relation to restricting appeal rights and these mostly  affect foreign national criminals subject to deportation. In essence where foreign national criminal who are subject to deportation do not raise a protection claim or human rights  claim they will not obtain a right of  appeal. However where they do in fact raise these claims in order to resist deportation, the Home Office may certify the claim in particular relying upon new certification powers  thereby denying the foreign national criminal an in- country right of appeal altogether and instead requiring them to appeal outside the UK following departure.

LIABILITY TO DEPORTATION

Non- EEA foreign criminals  may be considered for deportation under the Immigration Act 1971   or the UK Borders Act 2007.

To be subject to automatic deportation  provisions the foreign national criminal must meet the relevant criteria under the UK Border Act 2007.  Where the foreign national criminal does not meet the automatic deportation threshold criteria consideration is given to whether deportation should be pursued under the Immigration Act 1971 because it would be conductive to the public good.

Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:

  • the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
  • the period of imprisonment is 12 months or more, and
  • the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
  • the criminal was serving that sentence on or after 1 August 2008, and
  • the criminal had not been served with a notice of decision to deport before 1 August 2008, and
  • none of the exceptions set out in section 33 of the 2007 Act apply.

Section 33 of the UK Borders Act 2007 sets out exceptions to automatic deportation. Where an exception applies then automatics deportation cannot continue however that does not necessarily preclude deportation action under the Immigration Act 1971. An individual is also exempt from automatic deportation under sections 33(1)(b) of the UK Borders Act 2007 if they fall within sections 7 or 8 of the Immigration Act 1971 and they are exempt from deportation. Where the Secretary of State decides none of the exceptions apply and that deportation under section 32 of the UK Borders Act 2007 is required, a decision to deport must be served setting out why the foreign national criminal’s presence  is not conducive to the public good. Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the United Kingdom is not conductive to the public good. This gives the Secretary of State discretion to act in a way that reflects the pubic interest.

A non -EEA foreign national will normally be considered for deportation pursuant to  the Immigration Act 1971 if they do not meet the criteria for deportation under the UK Borders Act 2007 but they have been involved in criminal activity in the UK or overseas and meet one of the criteria below;

  • the non -EEA foreign national is recommended for deportation by a court empowered to do so;
  • the non- EEA foreign national has received a custodial sentence of any length for a serious drug offence or gun crime;
  • the non EEA foreign national has committed a crime and received a custodial sentence of 12 months or more. This can be made up of aggregate or consecutive sentences;
  • the non EEA foreign national is a persistent offender. “Persistent offender” means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences;
  • the non EEA foreign national has been sentenced to less than 12 months’ imprisonment, but the Secretary of State considers that the offending has caused serious harm either in the UK or in another country;

The Home Office can also take into account:

  • Cautions: Police cautions can also be taken into account when considering whether deportation is conducive to the public good;
  • Previous Convictions: All previous convictions can be taken into consideration when making a deportation decision on or after 13 December 2012;
  • Serious Harm offences: The Secretary of State has discretion to consider whether an offence has caused serious harm. Such an offence may result in a sentence of less than 12 months but may still be grounds on which to pursue deportation.

Section 3(5)(b) of the Immigration Act 1971 provides for deportation of family members if another person to whose family he belongs is or has been ordered to be deported. When considering whether section 3(5)(b) is appropriate full account must be taken of paragraphs 365 to 366 of the Immigration Rules. Section 7(1) of the Immigration Act 1971  states that it is not lawful to deport Commonwealth or Irish Citizens who were Commonwealth or Irish Citizens and were ordinarily resident in the UK for the commencement of the Act in January 1973 and ordinarily resident in the UK for at least five years before the decision to make a deportation order. Where the Home Office decide that deportation is appropriate then a decision to make a deportation order is served by the Secretary of State setting out why the foreign national’s presence is non-conducive to the public good. The decision informs the foreign national that they may if they wish make representations within 20 working days as to why they should not be deported. The decision is required to issue a warning under Section 120 of the Nationality, Immigration and Asylum Act 2002 which places a continuing obligation to raise with the home office any reason why they should be permitted to remain in the UK including any time there is a change of circumstances as soon as they occur. The decision is also required to seek representations from the foreign national about whether there are any reasons why any appeal against a final refusal of any claim by the Home Office should not be certified under section 94B of the 2002 Act, the effect of which would be an out of country right of appeal. Article 8 claims from foreign national criminals are considered under paragraphs 398 to 399A of the Immigration Rules also with reference to sections 117A to 117D of the Nationality Immigration and Asylum Act 2002(as amended by section 19 of the Immigration Act 2014).

If there is found to be a breach of the UK’s obligations under the refugee convention or the ECHR then deportation  under either the UK Borders Act 2007 of the Immigration Act 1971 will not be possible.

DEPORTATION APPEALS AFTER 20 OCTOBER 2014

The changes to the immigration appeals system in the Immigration Act 2014 are being brought into force on a phased basis. The first phase started on 20 October 2014 and included foreign criminals being deported. The new appeals regime will also apply to persons being deported as family members of foreign criminals under section 3(5)(b) of the Immigration Act 1971.

Rights of appeal are restructured such that a person only has a right of appeal where the Secretary of State refuses a human rights claim or a protection claim or revokes a person’s protection status. The 2014 Act does not change the rights of appeal under EEA regulations and deprivation of citizenship.

The place from which an appeal can be brought or continued is dependant on where the person was when  the claim was made and the nature of the claim. The definition  of “foreign criminals” does not include  all deportation cases. Some persons who are not foreign nationals may be subject to deportation. During the first  phase of commencement of the new Act these persons will retain rights of appeal under the pre- Immigration Act 2014 regime. Where a foreign national criminal makes a human  rights or protection claim if the claim is refused the right of appeal is under  the new Act. If no representations are made after the above mentioned 20working day deadline for representations has passed, the Secretary of State is most likely to make a decision on issuing a deportation order on the facts that are before them. As a human right claim will not have been made by the individual the deportation order will not be appealable and the individual may expect to be removed. Any representations received after the deportation order has been made must still be considered by the Home office. If it is decided on the basis of the post – deportation order representations  that deportation should not be pursued the deportation order will be revoked. However under the new Act there is no longer a right of appeal against deportation or the refusal to revoke a deportation order. Therefore from  20 October 2014 foreign criminals will no longer be able to appeal against a deportation decision. Any foreign criminal who applies to have their deportation order revoked will fall under the new appeals regime if they are served with a refusal to revoke( a revocation decision) on or after 20 October 2014. This will be the case irrespective of whether the decision is served in the UK or overseas.

A person is however likely to have a right of appeal where the Secretary of State refuses to revoke a deportation order only where they make a protection or human rights claim which is refused.

CERTIFICATION

If the representations  raise protection or human rights grounds and it is decided to refuse the claim(s), the Secretary of State is required to  consider whether the claims should be certified under existing powers (section 96 and section 94 of the 2002 Nationality and Immigration Act) or in the case of non- protection claims under section 94B of the 2002 Act( as inserted by the 2014 Act) which allows the certification of human rights claims made by those liable to deportation in certain circumstances. Where it is not possible to certify a protection or human rights claim under the above mentioned provisions then the foreign national will have an in- country right if appeal.

CONCLUSION

The current government ‘s policy in relation to foreign national criminals is ” deport first, appeal later”. In practice therefore there  are instances of foreign national criminals who having held indefinite leave to remain for  up to 20years with  families here having their human rights claims being refused and certified under Section 94B of the 2002 Act. They are expected to appeal outside the UK following their departure. The Home Office themselves acknowledge that meeting the threshold for the irreversible harm test in this regards is high and that cases that will succeed are rare. Therefore although there is a reduction in rights of appeal as a result of the amending provisions of the 2014 Act and the introduction  of new and additional certifying powers, in practice the mere fact of potentially being able to appeal a  human rights claim if refused is just but a mere hope.

Where certification is applied, this means currently in light of the relatively new appeal provisions,  judicial review claims will be lodged  as the Section 94B power of certification is discretionary and it may also be possible to seek to challenge the certification decision also having regard to what appears a restrictive  accompanying policy being applied in conjunction with Section 94B of the 2002 Act. Therefore rather than expediting removals of foreign national prisoners by denying them a right of appeal in- country, for some time at least there will be a priority by claimants to take judicial review action. Having regard to the lengthy period of time the Upper Tier Tribunal is taking to consider such types of review claims, it is not only likely that it will take longer to deport affected persons but also that whilst judicial review claims are pending they may even be granted bail by the Tribunal.

Apata v Secretary of State for the Home Department [2015] EWHC 888 (Admin); Even involvement in much publicized same sex relationships not enough to raise membership of a particular social group

The Claimant’s case was commenced on 24 January 2013 as a public law challenge  to the merits of the Secretary of State’s decision served on 8 January 2013 to remove the Claimant from the UK. The challenge also took the form of a human rights challenge against the decision to remove and a claim to refugee status. The Claimant put forward that she was a lesbian and as such was a member of a particular social group and  that it would breach her human rights to return her to Nigeria. Alternatively  she argued that she would be perceived to be a lesbian with  the same consequences. It was noted by the Court that there had been extensive media interest in the Claimant’s case and it was stated in this regards that a minor search for the Claimant showed that she was a lesbian and thereby this would place her at risk in Nigeria. The Claimant also submitted that the state of her mental health was such that   removal to Nigeria would also breach her human rights.

The relevant facts of the Claimants case (which also weighed heavily against) her in her appeal within the Tribunal and in her current challenge were that;

The Claimant arrived in the UK in 2004 using a false passport and her residence since then has been unlawful. Whilst in the UK she obtained a forged passport with a forged indefinite leave stamp and a false national insurance card. She also at some point obtained a forged UK driving license. In 2008 she applied for an EEA residence card. On 29 January 2009  she was sentenced to 6months imprisonment. She was imprisoned again on 23 June 2011 for 8months. The claimant’s two applications for asylum were dismissed respectfully in 2004  and 2012 and were not renewed. The Secretary  of State made deportation orders  on 22 November 2011 and on 28 June 2012. The Claimant appealed the deportation decision. The appeal was dismissed by the Tribunal. The Tribunal  concluded during her appeal that  there was a change of imagery entirely due to a false claim of lesbian sexuality. She was noted to have engaged in long term relationships with men. The Tribunal stated that the Claimant had “created layer upon layer of deceipt and lies”. The Tribunal did not accept that the Claimant was lesbian. The Claimant applied for permission to appeal to the Upper Tier Tribunal but withdrew her appeal as she stated she wished to leave the UK.

During the public law proceedings the Claimant therefore sought to overturn the deportation order and argued that the evidence since the Tribunal’s determination was such as to amount to further material for the purposes of there being a fresh claim under Paragraph 353 of the Immigration Rules.

The Secretary of State raised no issue about the mistreatment of lesbians’ in Nigeria. The Nigerian legislature  was stated to have brought in laws to criminalise gay and lesbian relationships with harsh imprisonment for those that are convicted. The Secretary of State accepted that the Claimant had had some same sex relationships but argued among other issues that the Claimant did not belong to a particular social group of “lesbians’ and was not entitled to refugee protection. The Secretary of State considered that the relationships had been manufactured or exaggerated for the purposes of her remaining in the UK. It was also noted that the Claimant had two children. The Secretary of State emphasized that the First Tier Tribunal’s determination had not been appealed and was binding upon the Court.

Although the Court accepted that the findings of the First Tier Tribunal were binding as to the position as to membership of a particular social group and other matters at the relevant time of that finding the Court considered the matter at the time of the hearing and in light of the further evidence presented before the Court including DVD’s of the Claimant engaging in lesbian sexual activity. The Court however decided that there was nothing irrational, perverse or wrong in law in the Secretary of State’s decision given the findings of the First Tier Tribunal. The Court did not accept that the Claimant could not be a member of the particular social group of lesbians because she had had children or heterosexual relationships. It was stated by the Court that sexuality or consciousness of sexuality may alter over tine and a person may  realise that sexuality at different times. The Court did accept that the Claimant had had same sex sexual relationships but did not accept that this in itself rendered her a member of a particular social group. The Court agreed with the Tribunal’s conclusions that the Claimant had fabricated the claim based on lesbian sexuality. The Court also accepted the Secretary of State’s submissions that the Claimant had adjusted her conduct so as to adopt other customs, dress and mores of a particular social group purely as a way of gaining refugee status. It was also found against the Claimant that she had been willing to return to Nigeria at a time when she was said to be lesbian. It was considered that the Claimant did not have a well founded fear of persecution and also that if she returned to Nigeria she would not have lesbian relationships nor be perceived as lesbian.

As regards the Claimant’s publicised campaigning work in the UK, the Court also did not consider that this point had been pleaded in the Updated Grounds and in any event did not think that if it were there was evidence to the necessary high standard that she would suffer persecution on that ground.

As regards the medical condition issues raised by the Claimant, that part of her claim failed in light of the high threshold needed to be reached before the Claimant could succeed.

The Court concluded that the substance of the material had already been considered by the Secretary of State   and taken together with the previously considered material did not create a realistic prospect of success.

CONSIDERATIONS

Although the Claimant’s immigration history and conduct in the UK was the subject of much criticism, it is likely that the Court’s judgement has left the Claimant in a position whereby  she would indeed be at risk on return to Nigeria. She has not been afforded anonymity within the judgement. She has been noted within the judgement to have engaged in gay relationships by reference to DVD evidence.

It appears not to be in dispute that those accepted to be gay and therefore not expected to be discreet as regards their sexuality on return to Nigeria would be at risk of persecution, yet the Court does not place much weight to the fact that the Claimant ‘s accepted publicised campaigning would in effect result in her having an “imputed sexuality” against  her on return to Nigeria. The Court referred in its judgement to a Human Rights Watch report which clarified that new legislation could lead to imprisonment solely for a person’s actual or imputed sexual orientation. Where the Claimant could be at risk on return  on account of an “imputed sexuality” then she could arguably fall into a particular social group. Where found to fall into a particular social group then issues on risk on return would also come into play and having regard to the publicised nature of her claim it can most likely  be said that the option of internal relocation would not be available to her and neither would she obtain police protection.

With the Secretary of State, the Tribunal and Court accepting that the Claimant had engaged in same sex relationships, the Court in their judgement does  not appear to have provided a reasoned basis in law as to why she would not fall into a particular social group. The contention against her having regard to the Secretary of State and Court’s view was that those relationships were not ” genuine” however the Court had noted persecution of gay people in Nigeria had worsened  over the period since the Tribunal’s decision and as such having regard to the particular circumstance of the Claimant  as publicised, the fact of those relationships being genuine or not would  not obviate the real risk that she may be persecuted on return to Nigeria. The Nigerians authorities and public may lay emphasis to the fact of submission of the publicised DVD evidence to give rise for reason to persecute or ill-treat the Claimant on return.

It is currently understood that permission has been granted to proceed to the Court of Appeal and as such it is  awaited what decision and basis of reasoning that  Court will reach in this case.

Of the NHS Health Surcharge and Application Fee Waivers : Temporary Migrants to Pay Their Way in Home Office Applications

 

The Immigration (Health Charge) Order 2015 2015 No. 792 commenced on 6 April 2015. The Secretary of State made the Order in exercise of the powers conferred by sections 38 and 74(8) of the Immigration Act 2014(a). The Order requires a person who applies for entry clearance for a limited period, or for limited leave to remain in the United Kingdom to pay an immigration health charge.

Applicability of the Health Surcharge

For applications for entry clearance or leave to remain as a student, in accordance with the immigration rules and also applications for entry clearance or leave to remain as the dependant of a student, in accordance with the immigration rules, the annual amount will be £150.00. For all other applications for entry clearance or leave to remain the annual amount will be £200.00.

Where a person applies for entry clearance under a paragraph of the immigration rules the person must pay the specified annual amount for each year of the maximum period of leave to enter which could have effect on the person’s arrival in the United Kingdom, or be granted pursuant to the entry clearance, if the entry clearance is granted for the maximum period under the immigration rules in relation to that paragraph.Where a person applies for leave to remain in the United Kingdom under a paragraph of the immigration rules, the person must pay the specified annual amount for each year of the maximum period of leave to remain which could be granted pursuant to the application under the immigration rules in relation to that paragraph.

Where the maximum period of leave to enter or remain would be for less than a year, or includes part of a year, the amount payable for that part is either half of the specified annual amount for a period of up to 6 months, or the specified annual amount if the part of the year is more than 6 months.

Where the person applies for entry clearance or leave to remain outside the immigration rules then the person must pay the specified annual amount multiplied by 2.5.

The Secretary of State has discretion to reduce, waive or refund all or part of a charge.

As regards the consequences of a failure to pay a charge, the entry clearance officer or the Secretary of State, as applicable, may inform the person of the failure to pay the charge. Where a person applies for entry clearance, the person will have 7 days to pay the outstanding amount or the application must be refused. Where a person applies for leave to remain, the person will have 10 days to pay the outstanding amount or the application must be treated as invalid.

However, if a person applies for entry clearance or leave to remain but, before the application is determined, the person reclaims or otherwise withdraws the payment made, the application will be refused.

Where the person has been granted entry clearance or leave to remain, but reclaims or otherwise withdraws the payment, any entry clearance granted must be revoked, any leave to enter conferred or granted pursuant to the entry clearance must be cancelled, and any leave to remain must be cancelled.

Where a person has been refused entry clearance or leave to remain but that refusal is held to be unlawful by a competent court or tribunal, and the Secretary of State has refunded the amount of the charge, an entry clearance officer or Secretary of State may inform the person of their failure to pay the charge. The person must then pay within the specified time or the application must be refused.

Article 7 and Schedule 2 to the Order make provision for exemptions from the requirement to pay the immigration health charge.

Article 8 of the health Charge Order provides that the Secretary of State has discretion to reduce, waive or refund all or part of a charge. The Secretary of State has published in April 2015 an updated   fee waiver Policy Instruction termed “Fee Waiver FLR(FP) 7 FLR(O) Forms”. It is reasonable to expect that where an applicant relies on a fee waiver regarding the actual home office application fee on the basis of destitution then they can also seek to   state they are exempt from paying the health charge.

Home Office Application Fee Waiver Policy

The Secretary of State will waive the home office application fee in respect of certain types of immigration application, where failure to do so would render the applicant incapable of exercising their rights under the European Convention on Human Rights (ECHR). The courts have considered fee waivers in an immigration context in two key judgments: Omar, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin) and Carter, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin). The applications covered by the Home Office guidance are applications for leave to remain under the 10-year partner, parent or private life route on an FLR(FP) form, where the applicant claims that refusal of that application for leave to remain would breach his or her rights (or the rights of other specified persons) under Article 8 ECHR (the right to respect for private and family life), or applications for leave to remain on the basis of an ECHR article other than Article 8 made on an FLR(O) form.

Financial and residential enquiries, such as credit checks, interviews and home visits, may be conducted where appropriate in assessing the application for a fee waiver.

The assessment of whether the applicant qualifies for a fee waiver will be made on the basis of their own individual circumstances and those of any dependent family members. The applicant must provide relevant supporting documentation to evidence their claim, including detailed evidence as to their financial circumstances. For example, Home Office caseworkers will normally expect to see information and evidence relating to the applicant’s accommodation, the type and adequacy of this, the amount of their rent/mortgage, or the amount of the applicant’s contribution towards this, their income and outgoings in terms of spending on food, utility bills, etc. This information should be borne out by independent evidence, such as their tenancy agreement, pay slips, utility bills, bank statements, etc. The nature of the evidence provided will necessarily vary depending on the individual circumstances of the applicant, but the Home Office would expect to see evidence appropriate to the circumstances claimed.

If the applicant is being supported by family or friends, a Local Authority or a registered charity, the Home office caseworker would expect to see corroborating documentary evidence confirming provision of support and detailing the exact nature and amount of the support provided. In all cases evidence must be up-to-date.

The fee waiver Policy Guidance provides:

“2.0 Qualifying for a fee waiver

An applicant will qualify for a fee waiver in the following circumstances:

  1. When the applicant has demonstrated, by way of evidence, that they are destitute. (As set out more fully below, a person is deemed to be destitute for these purposes when they do not have adequate accommodation or any means of obtaining it; and/or they cannot meet their other essential living needs); or
  2. When 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 essential living needs:
  3. a) They have no additional disposable income such that they could either:

 

(i) pay the fee now; or

(ii) save the required amount within a reasonable period (12 months) (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time);

in either event, without compromising their ability to accommodate themselves adequately or meet their other essential living needs; and

  1. b) They have no ability to borrow the required amount from family or friends; and

 

  1. c) There is no basis for concluding that the applicant’s financial circumstances are likely to change within a reasonable period (12 months) (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time); or

 

  1. The applicant has demonstrated, by way of evidence, that notwithstanding the fact that neither 1. nor 2. apply, there are exceptional circumstances in their case such that the fee waiver should be granted. The ‘exceptional circumstances’ relied on must relate to the applicant’s financial circumstances and their ability to pay the fee. For further guidance on ‘exceptional circumstances’ see Section 4.10 below.

 3.0 Destitution

Consistent with the provision of support to asylum seekers and their dependants under section 95 of the Immigration and Asylum Act 1999, a person is destitute if:

  1. a) They do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
  2. b) They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

While the definition is the same between asylum support and the fee waiver policy, each is assessed separately (and subject to different guidance for caseworkers) and provision of one does not automatically lead to the other.

………..

 

4.8 Assessing destitution

An applicant claiming to be destitute will need to provide evidence, including of their financial position, demonstrating that they do not have access to adequate accommodation or any means of obtaining it, or they cannot meet their other essential living needs.

…………………..

4.9 Assessing whether an applicant would be rendered destitute by payment of the fee

Applicants may qualify for a fee waiver on the basis that, although they are not currently destitute, they would be rendered destitute by payment of the fee. In order to qualify for a fee waiver on this basis:

  1. The applicant must have no or very limited disposable income such that they could neither pay the fee now, nor realistically afford to save sufficient money to pay the fee within a reasonable period (12 months) and, in the latter case, that it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time; and

 

  1. The applicant must have no ability to borrow the required amount from family or friends; and

 

  1. There must be no basis for concluding that the applicant’s financial circumstances are likely to change within a reasonable period (12 months), and it would be reasonable in all the circumstances to expect the applicant to delay the application for this length of time.

 The applicant will need to provide relevant evidence of their income and expenditure so that their disposable income can be calculated. Caseworkers will need to use their judgement in assessing the applicant’s spending habits to decide whether or not they are considered to have disposable income and the amount of this.

……………..

4.10 Assessing whether there are exceptional circumstances

An applicant who cannot evidence destitution or show that they would be rendered destitute by paying the fee will not normally qualify for a fee waiver. However, there may be exceptional circumstances which mean that a fee waiver should be granted. Caseworkers have discretion to grant a fee waiver in appropriate cases. Exceptional circumstances in this context relate only to the applicant’s financial circumstances and their ability to pay the application fee and not to consideration of their substantive human rights claim..”

If the applicant does not qualify for a fee waiver, their application for leave to remain will be rejected as invalid for non-payment of the required fee and their substantive application will not be considered.

 CONSIDERATIONS

The new changes regarding the health charge do not take into account whether an applicant is able to fund their medical needs privately at the point of needing it. An applicant applying under the “7year rule” with 3 dependants will need to provide for the home office application fee  which will be £2596.00 whilst the NHS surcharge will be £2000.00. This brings the total cost to £4596.00. The surcharge is not a visa fee. Where there could have been an  option of requiring applicants to privately fund their medical needs then introducing a separate charge to go with a visa application seems unreasonable and exorbitant.

For affected families who prior to 6 April 2015   were preparing to submit human rights applications and were gathering funds towards the Home Office fee this means that the cost of the surcharge will considerably delay in submission of the intended applications whilst steps are made to gather yet  more funds. This leaves them open to removal action even where they have a qualifying child under the Immigration Rules by reference to the “7year Rule” and are also able to show it would be unreasonable to expect the child to leave the UK. In other cases the lack of reqired funds may result in the family   not being able to submit a leave  application at all where they are also unable due to personal circumstances to show they qualify for a fee exemption.

The intention is to enable applicants to gain access to the NHS and make appropriate financial contribution to the cost of their health care, however this does not take into account whether an applicant during their stay in the UK has ever had access to the NHS. Previous recourse to the health charge can be  ascertained from NHS records and information. A family including a father, the mother and 2 children under the of 18years but over the age of 7years may not have required medical attention for several years yet they will be required to pay the surcharge before the application is accepted as  valid for consideration.

Where however that family includes children born in the UK and those children are aged  10years or over, have lived in the UK until they were 10 or older  and able to show they have spent no more than 90days outside the United Kingdom on each of the first 10years of their life  those children can apply for British registration to be considered at the Secretary of State’s discretion . Such applications do not include the surcharge however the relevant fee currently for registration of such children as British citizens is £ £749 for each applicant.

The Government further gives applicants no option to   have private medical insurance in the UK with such evidence to be submitted with their applications. The suitability criteria relevant to applications for leave to remain are that an applicant will be refused limited leave to remain where one or more relevant NHS bodies has notified the Secretary of State that the applicant failed to pay charges in accordance  with the relevant NHS Regulations on charges to overseas visitors and the outstanding charges have a total value of at least £1000.  A large number of applicants relying on human rights provisions were initially visitors who may have overstayed their leave to enter and as such  the possibility of a debt owing to the NHS means that where there is an option to privately fund their healthcare needs in the UK then in light of a  potential adverse decision in relation to an outstanding debt, for this reason it is more than likely that such applicants will seek to clear an NHS debt prior to applying for leave to remain.

It is seems not currently clear whether applicants who had no leave to remain at the time of application are able to access non -emergency NHS care whilst the application is pending and whilst the home office retain the funds paid towards the health surcharge.

As regards enabling submission of valid applications, the introduction of the health surcharge seems in practical effect to make it difficult for those families with qualifying children yet   no employment, reliant on others for support and    unable to show they qualify for a fee waiver. This leaves them with no option but to seek to delay submission of their applications and source and provide the required exorbitant fees required simply to have their application considered valid before actual consideration. Provision of these fees however does not mean that   the quality in reasoning will be improved if an adverse decision is made by the Home Office.