The Home Office have increasingly made it so over the years that applicants intending to submit leave to remain applications think twice before doing so in light of the applicable prohibitive costs involved in not only having to make provision for the relevant home office application fees but also as from April 2015, the NHS Health Surcharge. Families seeking to submit human rights applications are most affected in particular where they have no leave to remain, no source of income but having qualifying children for example under the “7year Rule” justifying submission of a leave application. Not only is the cost of the home office application fee daunting but there is also the possibility, where upon refusal, that further Tribunal appeal fees may need to be paid if an in -country right of appeal is given.
It is however possible to obtain a fee waiver or exemption in relation to the required fees in certain types of applications thus somewhat easing the burden on affected applicants.
- HOME OFFICE APPLICATION FEES AND FEE WAIVERS
The relevant Fee Waiver policy is, “Immigration Directorate Instructions, Fee Waiver For FLR(FP) & FLR(O) Forms, April 2015”.
The Home Office will waive the fee required with submission of an application form in respect of certain types of immigration applications, where failure to do so would render the applicant incapable of exercising their rights under the European Convention on Human Rights (ECHR). The fee waiver policy is intended to make provision for those applicants who would otherwise be unable to exercise their right to respect for family and private life under Article 8 ECHR, or other ECHR rights
Applicants Who Are Able to Apply For A Fee Waiver:
The following applicants can apply for a fee waiver:
- 10-year partner application made on form FLR(FP)- 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);
- 10-year parent application made on form FLR(FP)- 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);
- 10-year private life route application made on form FLR(FP)- 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),
- applications for leave to remain on the basis of an ECHR article other than Article 8 made on an FLR(O) form. Applicants will not be granted a fee waiver on the basis of other (non-Article 8) ECHR rights unless the underlying human rights claim on which they rely constitutes a substantive basis of their application.
Applicants Who Are Not Able to Apply For Fee Waivers:
The following applicants cannot apply for a fee waiver:
- FLR(O) applications on non-human rights grounds- If an FLR(O) application has been submitted along with Appendix 1, but the application is not on the basis of an ECHR right a fee waiver will not be considered. The application will be rejected for non-payment of the required fee and this would be communicated to the applicant.
- Applications for the 5-year partner or parent route-there is no fee waiver available for the 5-year partner or parent route.
- Applications for indefinite leave to remain – applications for indefinite leave to remain, for example on a SET(O) or SET(M) application form) are not covered by the fee waiver policy. All such applications will need to be accompanied by the correct fee in order to be considered.
Qualifying For A Fee Waiver
Applicants will qualify for a fee waiver only where they can demonstrate on the basis of evidence provided that:
(1)They are destitute:
An applicant can demonstrate, by way of evidence, that they are destitute.
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:
- They do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
- 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 home office caseworkers) and provision of one does not automatically lead to the other.
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.
(2)They would be rendered destitute by payment of the fee:
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:
(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
(b) They have no ability to borrow the required amount from family or friends; and
(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).
The applicant will need to provide relevant evidence of their income and expenditure so that their disposable income can be calculated.
(3)There are exceptional circumstances :
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.
Home Office 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.
An exceptional circumstance may be where the applicant is not destitute and would not be rendered destitute by paying the fee but cannot afford to pay it because they need to spend the money they could otherwise save in order to pay the fee on essential child welfare needs, such as buying items which are required owing to their child’s illness or disability.
The applicant will need to demonstrate that there is something exceptional about their financial circumstances and ability to pay the fee such that a fee waiver should be granted, despite the fact that they are not destitute and would not be rendered destitute by payment of the fee. The fee waiver policy states that the expectation is that exceptional circumstances will be rare.
The Fee Waiver Application And Relevant Considerations :
The fee waiver policy applies where the applicant has ticked the box within FLR(FP)/FLR(O) form indicating that they wish to rely on a fee waiver and has completed the Appendix 1 to the FLR(FP)/FLR(O) form. The fee waiver application will be assessed on the basis of the information set out in the completed Appendix 1 to the FLR(FP)/FLR(O) form and the accompanying documentary evidence enclosed. Home Office caseworkers are not normally required to make additional enquiries to try to establish whether an applicant qualifies for a fee waiver as they usually base the decision on a fee waiver on the information and evidence submitted.
Individual circumstances raised such as age, disability, pregnancy and maternity or regarding a related issue such as caring or childcare responsibilities are normally considered. Individual circumstances raised may be relevant to the consideration of whether the applicant is destitute, or would be rendered destitute by payment of the fee, or whether there are exceptional circumstances relating to their financial circumstances and ability to pay the fee such that the fee waiver should be granted.
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 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.
Where an applicant has a spouse or partner, their joint income and assets should be taken into account. Where the applicant is a child, the joint income of the applicant and their parent(s) should be taken into account.
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.
Support provided to the applicant or a dependent family member by family or friends will be counted towards the applicant’s income or considered in assessing their income and outgoings. Such support could be financial or in terms of meeting essential living needs, such as providing food and paying bills, or providing accommodation.
If this support is of a limited duration or is about to cease, 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 and 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.
Failed asylum seeker applicants may make a human rights claim by means of further submissions in person at the Further Submissions Unit in Liverpool. Such an application does not require payment of a fee.
Home Office caseworker take into account income from employment or self-employment; non-employment sources, of the applicant’s spouse/partner or parent(s); from welfare benefits/tax credits received by the applicant and/or their spouse/partner or parent(s); and from family or friends.
Home Office caseworker also take into account assets such as cash; money held in a bank account, such as a savings or current account; investments; land or property; cars or other vehicles; goods held for the purpose of a trade or other business; and jewellery and other personal possessions (except for wedding jewellery such as the applicant’s engagement and wedding rings).
Applicants are required to provide full details of their employment, including how much and how often they are paid. They should include evidence such as pay slips, tax returns, details of their own business if they are self-employed, etc.
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 be deemed an asset when assessing eligibility for a fee waiver. Home Office policy however is that the applicant should subsequently be asked to explain why they are working illegally and informed that they may be committing a criminal offence and should cease working immediately.
Where The Fee Waiver Application is Approved:
If the home office caseworker is satisfied on the basis of the information in the Appendix 1 to the FLR(FP)/FLR(O) and the supporting documentation, that the applicant is destitute, or would be rendered destitute by payment of the fee, or that there are exceptional circumstances relating to their financial circumstances and ability to pay the fee, the applicant will qualify for a fee waiver. Their FLR(FP)/FLR(O) application form will be passed to the relevant caseworking unit for consideration and normal service standards will apply to the consideration of the application.
The application for leave to remain will be considered against the requirements of the Immigration Rules in Appendix FM (family life) and/or paragraph 276ADE(1) (private life) without paying a fee.
Where The Fee Waiver Application Is Refused:
If the Home Office caseworker is not satisfied on the basis of all of the information in the Appendix 1 to the FLR(FP)/FLR(O) and the supporting documentation that the applicant is destitute, or would be rendered destitute by payment of the fee, or that there are exceptional circumstances relating to their financial circumstances and ability to pay the fee, the applicant will 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.
The Home Office caseworker will write to the applicant informing them that their application for a fee waiver has been refused and the reason(s) for this decision, and that their FLR(FP) or FLR(O) application has therefore been rejected as invalid for non-payment of the required fee. The applicant will be informed that their FLR(FP) or FLR(O) application will not be considered.
Applicants may either re-submit their FLR(FP) form and accompanying Appendix 1 to the FLR(FP)/FLR(O) with additional evidence to support their claim that they meet the terms of the fee waiver policy, or re-submit their FLR(FP) form along with the relevant fee.
- THE NHS HEALTH SURCHARGE AND FEE EXEMPTION
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.
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.
Further details of the Charge can be found at:
The Immigration (Health Charge) Order 2015 2015 No. 792 provides:
Article 7- Exemptions from the requirement to pay the immigration health charge:
“7. Schedule 2, which provides for circumstances when a person is exempt from paying the charge under article 3, has effect”.
Schedule 2 of the Order provides;
“1. A person is exempt from paying a charge under article 3 where the person makes an application—
(a)for entry clearance where, if granted in accordance with the immigration rules, the entry clearance would have effect on arrival in the United Kingdom as leave to enter for 6 months or less, or where the leave to enter which may be granted pursuant to that entry clearance would be for 6 months or less if granted in accordance with the immigration rules;
(b)for entry clearance under Part 2 of the immigration rules;
(c)for entry clearance or leave to remain under paragraphs 245G to 245GE of the immigration rules (Tier 2 Intra-company Transfer Migrants);
(d)for leave to remain of any kind made by a child under the age of 18 years where the child is being looked after by a local authority (within the meaning of section 22(1) of the Children Act 1989 or section 17(6) of the Children (Scotland) Act 1995 or section 74(1) of the Social Services and Well-being (Wales) Act 2014 or where the child is being looked after by an authority (within the meaning of article 25(1) of the Children (Northern Ireland) Order 1995
(e)for leave to remain which relates to a claim for asylum or humanitarian protection to be considered in accordance with Part 11 of the immigration rules;
(f)for leave to remain which relates to a claim that the person’s removal from the United Kingdom would be contrary to the United Kingdom’s obligations under article 3 of the Convention (within the meaning of section 21(1) of the Human Rights Act 1998(7));
(g)for leave to remain which relates to the person’s identification as a victim of human trafficking in accordance with the United Kingdom’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings;
(h)for leave to remain outside the immigration rules with access to public funds under the Home Office policy known as the “Destitution Domestic Violence Concession” published on 2nd December 2013:
(i)for entry clearance or leave to remain as the dependant of a person who makes an application of a type mentioned in sub-paragraph (c), (e), (f), (g) or (h);
(j)for entry clearance or leave to remain as the dependant of a member of Her Majesty’s forces under the immigration rules;
(k)for entry clearance or leave to remain as the dependant of a member of a force who is exempt from immigration control under section 8(4)(b) or (c) of the Immigration Act 1971, under the immigration rules;
(l)for entry clearance or leave to remain where provision for such entry clearance or leave has been made pursuant to an EU obligation (within the meaning of Part 2 of Schedule 1 to the European Communities Act 1972).
- A person is exempt from paying the charge where the person is a national of—
- A person is exempt from paying the charge where the person is a British Overseas Territory citizen (within the meaning of section 2(1) of the British Overseas Territories Act 2002 who is resident in the Falkland Islands”.
In practice in relation to an FLR(FP) application, a person applying for a fee waiver as regards the Home office application fee, is able at the same time to request to be exempted from paying the Charge on the same basis as put forward for the application fee waiver. Form Appendix 1, the relevant application form and relevant information and evidence as to financial means would need to be submitted to the home office – this is the requirement in any case in relation to an accompanying home office fee waiver application. Where the representations and evidence submitted in relation to the fee waiver and the NHS charge fee exemption are well prepared, it is possible to obtain a grant of the request and therefore avoid providing any payment to the home office with the application.
- DOMESTIC VIOLENCE APPLICATIONS AND FEE EXEMPTION
The provisions in the Immigration Rules allow those who have leave in the UK as the partner of someone with the right of permanent residence and whose relationship has genuinely broken down, because of domestic violence, during their probationary period of leave, to be granted indefinite leave to remain.
The relevant and current Home Office Guidance is “Victims of domestic violence – version 13.0 Published for Home Office staff on 29 May 2015”.
To meet the eligibility requirements for indefinite leave to remain as a victim of domestic violence the applicant must meet all the requirements of paragraphs E-DVILR.1.2 and 1.3 of Appendix FM.
The applicant’s relationship with their partner must have broken down permanently as a result of domestic violence.
If the applicant meets all of the requirements for indefinite leave to remain as a victim of domestic violence the applicant will be granted indefinite leave to remain.
A person who appears to be destitute will be exempt from paying the application fee for indefinite leave to remain as a victim of domestic violence.
If the applicant claims to be destitute they must submit the SET(DV) application form as normal, but will not submit the specified fee. They must provide a letter which says why they are destitute and provide additional evidence to show they:
- do not have access to enough funds to pay the specified application fee
- have total and necessary reliance on a third party for essential living costs, such as basic accommodation and food
If a person shows they are totally reliant on third party support, home office caseworkers are required to consider them destitute.
Applicants are warned their application will be rejected if this evidence is not provided.
Evidence to show that applicants are unable to pay the home office fee could include:
- bank statements;
- savings account statements;
- wage slips if employed ;
- other documents that indicate the applicant’s financial position
An applicant is deemed reliant on third party support if they can provide evidence to show the third party provides them with the means to live day-to-day.
A written statement from the supporting body is needed if the applicant claims they are totally reliant on a third party for essential housing and living costs, such as:
- a local authority
- a refuge
This statement must confirm:
- the applicant’s position
- they are providing housing and living costs support
If an applicant claims they are totally reliant on friends and relatives, they must provide evidence to show they receive this support. The Home Office does not expect that support to extend to paying an application fee.
If they are assessed by a local authority or refuge as destitute, written confirmation of that assessment will be evidence to support the decision to waive the fee.
If the home office decide the applicant is destitute they must waive the application fee.
The Home Office will reject the application on the basis no fee has been paid if the evidence the applicant provides does not support their claim to be destitute. The home office caseworker is required to explain why the applicant does not appear to be destitute based on the evidence they have provided. Applicants will then be expected to pay the fee or resubmit their application and provide other evidence to prove they are destitute.
- ARTICLE 3 MEDICAL CLAIMS: NON – CHARGED APPLICATIONS
|Human rights claims on medical grounds rely on the following Articles of the European Convention on Human Rights (ECHR):
· Article 3 – inhuman or degrading treatment, and/or
· Article 8 – respect for private life, including moral and physical integrity
Article 3 deals with inhuman or degrading treatment. An applicant relying on article 3 must show there are substantial grounds to believe there is a significant risk of such treatment (to a reasonable degree of likelihood) if they were returned to their country of origin.
All cases have to meet the ‘N’ threshold – the case considered by the House of Lords and the European Court of Human Rights (ECtHR).
In brief, the eligibility requirements are that the applicant is gravely ill (at a critical stage of a terminal illness and is close to death) and removing them from the UK would:
- deprive them of the treatment they are currently receiving, and
- send them home to an early death in circumstances which would constitute a breach of article 3 of the European Convention of Human Rights (ECHR).
|Article 8 deals with respect for private life, including a person’s moral and physical integrity. The consequences to an applicant’s health of removing them from the UK could, in principle, engage Article 8. However, such cases will be rare and, in most cases, it is unlikely Article 8 will add anything decisive to a claim under article 3 when the same facts are relied on.|
|‘Private life’ is a broad term which cannot be defined exactly. However, case law has established it includes, amongst other things, physical and psychological integrity, for example:
· features which are integral to a person’s identity or ability to function socially, and
· the right to establish and develop relationships with other people and with the outside world.
Unlike Article 3, which is an absolute right, Article 8 is a qualified right. This means when there is interference in private life, that interference will not breach Article 8 if it is:
· in line with the law
· necessary in pursuit of a legitimate aim, and
· proportionate to that aim.
In particular, to remove an applicant from the UK may be lawful and proportionate to the legitimate aim of protecting the economic well-being of the UK, which effective immigration control achieves.
An applicant may state that their article 8 rights to mental well-being (moral and physical integrity) would be breached if they were removed to a country without the drugs they need to prevent the relapse of a severe mental health condition. For example, psychosis. In making this claim, the applicant may be able to show through a credible medical history that, without treatment, they are likely to pose a danger to themselves or to others. In these circumstances, removal may constitute interference with an applicant’s article 8 rights. However, the interference may be proportionate to the legitimate aim of immigration control.
Relevant application forms:
The relevant application forms for leave to remain are FLR(O) and for indefinite leave to remain is SET(O).
Form FLR(O) is relevant when applying for Discretionary Leave. Article 3 medical applications cannot be made on Form DL.
Grant of Leave:
Where an application meets the requirements for permission to stay under Article 3 and/or Article 8, the Home Office grant Discretionary Leave. Discretionary leave may be granted up to a maximum of 30 months (2.5 years). However, the leave must not exceed:
- 30 months (2.5 years), and
- life expectancy by more than three months.
The Home Office can grant leave in line with the length of treatment if it is appropriate.
Applicants are eligible to apply for indefinite leave to remain on Form SET(O), 28 days before they have completed:
- six continuous years of discretionary leave (if they were first granted discretionary leave before 9 July 2012), or
- 10 years of continuous discretionary leave (if they were first granted discretionary leave on or after 9 July 2012).
However, some applicants may be excluded from applying for indefinite leave due to their:
- character, conduct or associations or they are a threat to national security
- criminal record (including custodial sentences), and/or
- security issues.
Non- Charged application:
Home Office policy is that home office caseworkers should normally reject applications made by letter as invalid and send the applicant the appropriate application form. However, the caseworker can accept the application as valid if the letter is submitted with acceptable medical evidence which:
- confirms the claimant is gravely ill, and
- has only weeks to live (despite ongoing treatment in the UK).
Human rights claims on Article 3 medical grounds which are considered under the terms of the relevant Home Office Policy are not chargeable- ie “ Human rights claims on medical grounds – version 6.0 Valid from 20 May 2014”.
Article 3 applications are non -charged and there is no application fee to pay.
Where an applicant also cites other articles of the European Convention of Human Rights (ECHR) as a reason of claim (including Article 8), home office caseworkers are required to decide if the Article 3 claim constitutes a genuine reason of claim, or if it is cited only to prevent the applicant from paying a fee. Provided Article 3 is a genuine basis for a claim, then the whole application (including consideration of any of the other elements of the claim) will be uncharged. This does not mean the article 3 claim must be one which will succeed. However, the home office caseworker needs to consider that the claim has a realistic prospect of success.
If an applicant submits an application for Article 3 and also asks for Article 8 to be considered, home office caseworkers are required to :
- Consider the article 3 element of the application.
- If the applicant does not qualify under Article 3, but the Article 3 claim constituted a genuine reason for the claim, with a realistic prospect of success, the home office caseworker is required to go ahead to consider the other elements of the application (including any under Article 8). In these circumstances, the Article 8 application will be considered on a non-charged basis.
- If the home office caseworker consider the Article 3 claim was entirely spurious (not genuine or real) or fanciful, and was only included to prevent the applicant from paying a fee, they are required to discuss with their senior caseworker and get policy advice. In these circumstances, it may be appropriate to refuse the Article 3 application, and to request that an applicant makes a new (charged) application for any other reasons.
- FIRST TIER TRIBUNAL FEE EXEMPTION, REMISSSION
By virtue of the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011, from 19 December 2011, an appeal fee is payable in respect of an appeal to the First-tier Tribunal where the appeal relates to an immigration or asylum matter and the decision against which the appeal is made was taken on or after the coming into force of the Order.
The Order also provides for fees not to be payable for certain types of appeal, and for fees to be deferred, reduced, remitted or refunded in certain circumstances.
The fee is payable by or in respect of each appellant on the date on which the Notice of Appeal is given.
The fee payable is—
- £80.00 for each person- where the appellant consents to the appeal being determined without a hearing; or
- £140.00 for each person- where the appellant does not consent to the appeal being determined without a hearing.
The method of paying the fee is by credit card; debit card; BACS or international money transfer.
Exemption from fee payment:
Article 5 of the 2011 Order provides:
“This section has no associated Explanatory Memorandum(1) No fee is payable for—
(a)an appeal against a decision made under—
(i)section 2A of the 1971 Act (deprivation of right of abode);
(ii)section 5(1) of the 1971 Act (a decision to make a deportation order);
(iii)paragraphs 8, 9,10, 10A or 12(2) of Schedule 2 to the 1971 Act) (a decision that an illegal entrant, any family or seaman and aircrew is or are to be removed from the United Kingdom by way of directions);
(iv)section 40 of the British Nationality Act 1981 (deprivation of citizenship);
(v)section 10(1) of the 1999 Act(removal of certain persons unlawfully in the United Kingdom);
(vi)section 76 of the 2002 Act (revocation of indefinite leave to enter or remain in the United Kingdom);
(vii)section 47 of the Immigration, Asylum and Nationality Act 2006(removal: persons with statutorily extended leave);
(viii)regulation 19(3) of the Immigration (European Economic Area) Regulations 2006(a decision to remove an EEA national or the family member of such a national); or
(b)an appeal to which Part 2 of the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 applies.
(2) No fee is payable where, at the time the fee would otherwise become payable, the appellant is, under the 1999 Act—
(a)a “supported person” as defined in section 94(1); or
(b)provided with temporary support under section 98.
(3) No fee is payable where, for the purpose of proceedings before the Tribunal, the appellant is in receipt of—
(a)funding provided by the Legal Services Commission, established under section 1 of the Access to Justice Act 1999, as part of the Community Legal Service;
(b)legal aid under Part 2 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981or
(c)civil legal aid or advice and assistance under the Legal Aid (Scotland) Act 1986.
(4) No fee is payable where the appellant is the person for whose benefit services are provided by a local authority under section 17 of the Children Act 1989.
(5) Where by any convention, treaty or other instrument entered into by Her Majesty with any foreign power it is provided that no fee is required to be paid in respect of any proceedings, the fees specified in this Order are not payable in respect of those proceedings.
Remission or Reduction of Fee:
A fee specified in the 2011 Order may be reduced or remitted where the Lord Chancellor is satisfied that there are exceptional circumstances which justify doing so.
Certificate of fee satisfaction:
Article 8 of the 2011 Order provides:
“This section has no associated Explanatory Memorandum
(1) The Lord Chancellor must issue a certificate of fee satisfaction if satisfied that—
(a)the appropriate fee payable under article 3 has been paid;
(b)in view of an undertaking given by or on behalf of the appellant, payment will be promptly made by BACS or an international money transfer;
(c)no fee is payable;
(d)payment is to be deferred in accordance with article 6; or
(e)the appellant has, at the time a fee would otherwise be payable under article 3, applied for the fee to be reduced or remitted in accordance with article 7.
(2) The issuing of such a certificate is without prejudice to the power to recover the amount of any payable fee or part of such fee which remains unpaid and unremitted.
(3) The Lord Chancellor may revoke a certificate of fee satisfaction and if a certificate is revoked, the Tribunal shall be notified accordingly”.
- OTHER RELELVANT ISSUES IN THE IMMIGRATION TRIBUNAL
It may be possible to obtain recovery of the appeal fee paid.
The “Joint Presidential Guidance Fee Awards In Immigration Appeals” is relevant and is guidance is issued to assist Judges who have to decide on fee awards.
By rule 23A(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005(as amended by SI 2011 No. 2840) there is a power in the judge to direct the repayment of a fee in the case of an appellant whose appeal succeeds.
The making of an award is to be decided by the First Tier Judge on the evidence before him or her and dealt with in the determination following the decision on outcome.
The Guidance provides:
“5. As a first principle, if an appellant has been obliged to appeal to establish their claim, which could and should have been accepted by the decision-maker, then the appellant should be able to recover the whole fee they paid to bring the appeal.
- On the other hand, a different outcome may be appropriate if an appeal has been allowed principally because of evidence produced only at the appeal stage that could or should have been produced earlier, or if the appellant has otherwise contributed to the need for the appeal by their own action or inaction.
- When deciding whether to make a fee award or the amount of such an award (up to the maximum of the appeal fee paid), a Judge sitting as a judge of the FtTIAC will have regard to all the circumstances. These will include the conduct of the parties, the reasons why the appeal succeeded, whether the appellant should have produced any fresh evidence that would have materially contributed to the success of the appeal at an earlier stage in the application.
- The judge must make a decision in accordance with the principles of proportionality, taking into account all available information at the date of the hearing:
- a) Where there is no good reason to displace the first principle it should apply. Examples of good reasons might include failure to produce evidence that should have been produced before the decision in question; delay in complying with judicial directions or responding to the submissions of the other party; other conduct that results in adjournments that could have been avoided.
- b) Judicial time spent on the question must be proportionate to the maximum level of the fee award. The parties should be prepared to make any submissions on fees at the hearing orally or in writing. In the absence of attendance at the hearing the parties cannot expect the judge to give a further opportunity to make submissions on fees.
- Brief reasons should be given for a fee award decision”.
Where the Upper Tribunal sets aside a decision of the First Tier Judge and remakes it in favour of the appellant, the First Tier Tribunal award decision will fall away.
The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 2014 No. 2604 (L. 31), which came into force on 20 October 2014 provides:
Rule 7- Striking out of an appeal for non-payment of fee and reinstatement:
“(1) Where the Tribunal is notified by the Lord Chancellor that a certificate of fee satisfaction has been revoked, the appeal shall automatically be struck out without order of the Tribunal and the Tribunal must notify each party that the appeal has been struck out.
(2) Where an appeal has been struck out in accordance with paragraph (1), the appeal may be
(a) the appellant applies to have the appeal reinstated; and
(b) the Lord Chancellor has issued a new certificate of fee satisfaction.
(3) An application made under paragraph (2)(a) must be made in writing and received by the
Tribunal within 14 days, or if the appellant is outside the United Kingdom within 28 days, of the date on which the Tribunal sent notification of the striking out to the appellant”.
Rule 9 – Orders for payment of costs and interest on costs (or, in Scotland, expenses)
“(1) If the Tribunal allows an appeal, it may order a respondent to pay by way of costs to the
appellant an amount no greater than—
(a) any fee paid under the Fees Order that has not been refunded; and
(b) any fee which the appellant is or may be liable to pay under that Order.
(2) The Tribunal may otherwise make an order in respect of costs only—
(a) under section 29(4) of the 2007 Act (wasted costs) and costs incurred in applying for such
(b) if a person has acted unreasonably in bringing, defending or conducting proceedings.
(3) The Tribunal may make an order under this rule on an application or on its own initiative.
(4) A person making an application for an order for costs—
(a) must, unless the application is made orally at a hearing, send or deliver an application to the Tribunal and to the person against whom the order is sought to be made; and
(b) may send or deliver together with the application a schedule of the costs claimed in sufficient detail to allow summary assessment of such costs by the Tribunal.
(5) An application for an order for costs may be made at any time during the proceedings but must be made within 28 days after the date on which the Tribunal sends—
(a) a notice of decision recording the decision which disposes of the proceedings; or
(b) notice that a withdrawal has taken effect under rule 17 (withdrawal).
(6) The Tribunal may not make an order for costs against a person (in this rule called the “paying
person”) without first giving that person an opportunity to make representations.
(7) The amount of costs to be paid under an order under this rule may be determined by—
(a) summary assessment by the Tribunal;
(b) agreement of a specified sum by the paying person and the person entitled to receive the
costs (in this rule called the “receiving person”);
(c) detailed assessment of the whole or a specified part of the costs (including the costs of the
assessment) incurred by the receiving person, if not agreed.
(8) Except in relation to paragraph (9), in the application of this rule in relation to Scotland, any reference to costs is to be read as a reference to expenses.
(9) Following an order for detailed assessment made by the Tribunal under paragraph (7)(c) the
paying person or the receiving person may apply—
(a) in England and Wales, to the county court for a detailed assessment of the costs on the standard basis or, if specified in the order, on the indemnity basis; and the Civil Procedure Rules 1998(a), section 74 (interest on judgment debts, etc) of the County Courts Act 1984(b) and the County Court (Interest on Judgment Debts) Order 1991(c) shall apply, with necessary modifications, to that application and assessment as if the proceedings in the Tribunal had been proceedings in a court to which the Civil Procedure Rules 1998 apply;
(b) in Scotland, to the Auditor of the Sheriff Court or the Court of Session (as specified in the order) for the taxation of the expenses according to the fees payable in that court; or
(c) in Northern Ireland, to the Taxing Office of the High Court of Northern Ireland for taxation on the standard basis or, if specified in the order, on the indemnity basis”.
The President of the First Tier Tribunal has issued relevant Guidance in relation to Regulation 9:- “Presidential Guidance Note No 1 of 2015: Wasted Costs and Unreasonable Costs”.
Where a person with leave to remain seeks to request a fee waiver but that request is refused and the substantive accompanying application then rejected and returned as invalid following the expiry of relevant leave, this leave an applicant vulnerable with no leave to remain, becoming an overstayer. This affects the ability of a person to continue relying upon continuous lawful residence itself in the UK and also results in the loss of any accompanying benefits such as the ability to continue working whilst an application is pending. In some cases, such as domestic violence applications, where a fee exemption request is refused, the ability of obtaining a right of appeal is affected following refusal of an out of time application.
Requests for fee waivers and exemptions therefore need to be carefully prepared with relevant, adequate and up to date supportive evidence in place having ascertained well in advance of submission of the application, the chances of success in having that fee waiver/exemption application granted.