In a deliberate and calculated move, the Home Office jumped the gun, in practice enabling the doubling of the Immigration Health Surcharge to become effective on 7 January 2019.
The effect of the increase to the charge is set out in a recent blog post: Doubling of the Immigration Health Surcharge: Paying through the nose to obtain a UK visa
The Immigration (Health Charge) (Amendment) Order 2018 No. 1389 was made on 18 December 2018 and is to the following terms, amongst other provisions:
“Citation, commencement and interpretation
(1) This Order may be cited as the Immigration (Health Charge) (Amendment) Order 2018 and comes into force on the twenty-first day after the day on which it is made.
4.In relation to an application for entry clearance or leave to remain made before the coming into force of this Order, the Principal Order applies without the amendments made by this Order”.
The Order therefore comes into force today, 8 January 2019.
At some point on 7 January 2019, some applicants however found themselves unable to access the IHS portal: not only that, the online system via which the substantive applications forms are created, would not permit them to proceed to pay the separate Home Office application fees. The Home Office therefore prevented applicants from submitting and making applications prior to the coming into force of the Order.
It seems that without prior warning, at the very least by 10pm on 7 January 2019, applicants were unable to access the Immigration Health Surcharge Portal. The message generated stated as follows: “The Immigration Health Surcharge Portal is currently offline for planned maintenance please check back later”. Others reported that a notice also informed applicants to “Please check back later to pay the increased fee”.
Attempts to proceed further to payment were met with the notice that, “ If you have not paid your IHS, you must do so before you can complete your visa application”.
Applicants were therefore permitted on 7 January 2019 to create and complete all sections of the on- line application form, only to be barred right towards the end of the process from proceeding further.
By 11.15pm the same evening of 7 January 2019, the portal was opened up however the charge had doubled.
In practice therefore the Order/increase came into force on 7 January 2019 and not the 8th.
Some might say, “ serves them right for last minute submission”….. after all it has been known for some time when the increase would come into effect. Depending on their circumstances, applicant will have several reasons for submission at the eleventh hour: for some, the much needed funds might have become available only very recently or even on that day.
In any case, those who intended to submit their applications online on 7 January 2019 were covered by the following Immigration Rule:
“Date an application (or variation of an application) for leave to remain is made
34G. For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E is made is:
(3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted”.
Those whose leave was due for renewal within the next 28days also found themselves unable to tactfully submit on-line applications paying the lower IHS fees prior to 8 January 2019. It would have been expected by the Home Office that a surge of applications would be forthcoming from this quarter.
Home Office actions on 7 January 2019 smack highly of unfairness, lack of care and judgement. The increase should have become effective from midnight. There should have been advance notice to applicants, flagged up upon their seeking to set up online applications, notifying them that at the end of the process on that day, they would become subject to payment of the increased fee prior to 8 January 2019.
Applicants were left in confusion and distress, stuck unable to complete and submit their applications.
A single applicant who set up an FLR(FP) on-line application on 7 January 2019 expecting to pay only £500.00 towards the charge, found themselves, well before midnight being required on demand to make provision for £1000.00.
For applicants whose leave was due for renewal by 7 January 2019, the consequences are likely that some might have found themselves suddenly made overstayers by the Home Office, unable to make provision for the sudden doubling of the charge.
Possible action to take for those affected
Raise a complaint in detail:
-Evidence creation of an on-line application prior to 8 January 2019.
-Show that on 7 January 2019, you had access to sufficient funds to cater for payment of the charge prior to the increase of later that evening.
-Provide any retained print-outs from the Home Office website regarding inability to access the IHS Portal.
-For those who had no choice but to make provision for the double charge on 7 January 2019, ask for a refund :https://www.gov.uk/healthcare-immigration-application/refunds
-For applicants barred from accessing the IHS Portal on 7 January 2019 but still yet to submit their applications, request that they be permitted to pay the amount of the charge as it stood prior to the increase. Awaiting resolution of the issues however should not prevent payment of the double charge from 9 January 2018 as well as formal submission of the application prior to the expiry of leave.
Raise the issues via the following ways:
-Within representations accompanying the papers.
-Approach your MP for assistance.
-Seek legal advice.
-Send a complaint to the Home Office Complaints Unit- https://www.gov.uk/government/organisations/uk-visas-and-immigration/about/complaints-procedure
Complaints Allocation Hub
Customer Correspondence Hub
40 Wellesley Road
-Seek possible Financial Redress- Have regard to the relevant Guidance: Ex-gratia guidance
Immigration Enforcement, UK Visas & Immigration and Border Force make ex-gratia payments to customers, beyond any legal or statutory requirements, as redress for maladministration. These payments are made at the discretion of the Home Office and depend on the individual circumstances of each complaint. It is considered reasonable to expect that customers will make a claim for an ex-gratia payment within three months of a complaint being resolved or an issue taking place and certainly within six years of the events giving rise to the claim.
Claims can be made by the customer directly, through representatives or by the Parliamentary and Health Service Ombudsman (PHSO). When the Home Office decides an ex-gratia payment should be paid, a letter informing the customer of the amount should be sent to them asking them to formally accept the offer. Once the customer accepts the offer, the amount offered should be paid within a reasonable time.
The Ex-gratia guidance provides among other matters:
“1.2.2 The ex gratia team should consider whether the customer has suffered actual financial loss or non-financial loss that is sufficiently compelling to warrant financial redress:
Where maladministration has been identified by the department an ex-gratia payment will be considered.
Generally, each decision must be made on the facts as they exist at the date of the decision.
A decision may be revised when fresh facts become known or where, for example, an impartial review concludes that a different conclusion can be reached from the same set of facts.
1.3.1 There is no definition of maladministration in law but it is generally agreed to be a lack of care, judgement or honesty in the management of something………………….
1.3.2 The following are normally considered to be maladministration and may be considered for ex gratia payments. This list is not exhaustive and each case should always be assessed on its own merits……………………….
1.5 Actual financial loss
1.5.1 Actual financial loss applies to cases where maladministration has directly caused the customer to incur additional expenditure that would not have been incurred otherwise.
1.5.2 Most cases are likely to fall into three broad categories:
where the customer has lost in whole or in part an entitlement to a government grant, subsidy, benefit payment, allowance or other payment;
where the customer has been put to additional expense; and/or
where payment of a grant or benefit etc. has been delayed and a payment has been sought on account of the delay.
Refunds of application fees 1.5.53
In the vast majority of circumstances fees regulations do not compel the Home Office to refund a fee paid for as specified within the Regulations. However, in certain circumstances, it is appropriate to refund the fee. Ex-Gratia decision makers should consult the Fees and Income Planning Team for further advice if needed.
1.5.54 Immigration Enforcement, UK Visas & Immigration and Border Force will not refund a fee if someone applies for something even though they do not meet the requirements of the Immigration Rules or other relevant legislation.