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 .