Home Office updates its Guidance to reflect application of an “Affordability Test” in assessment of Fee Waiver Requests

On 5 March 2021, the Home Office issued a significantly updated Fee Waiver Guidance to reflect a new Affordability Test in the assessment and consideration of fee waiver applications: www.gov.uk/government/publications/applications-for-a-fee-waiver-and-refunds

The Guidance has been updated to reflect that affordability as opposed to destitution is the relevant test, following  the successful challenge outcome in Dzineku-Liggison & Ors, R [2020] UKUT 222  where the Upper Tribunal held that the Secretary of State’s Fee Waiver Guidance, version 3, was unlawful because it failed properly to reflect the settled test, of whether an applicant is able to afford the fee.

The amended Guidance states at page 5:

“Consideration

The sole consideration on whether someone is eligible for a fee waiver is an affordability test to assess whether the individual has credibly demonstrated that they cannot afford the fee. This applies when the applicant does not have sufficient funds at their disposal, after meeting their essential living needs, to pay the fee.

Fee waivers should be granted if the applicant has credibly demonstrated that they meet the affordability test or are destitute or at imminent risk of destitution.

The need to safeguard and promote the welfare of a child in the UK should be a primary consideration in deciding any claim. This means careful consideration needs to be given as to whether the applicant is unable to meet the essential further needs of a child and whether being required to pay the fee would deprive the child of having these needs met.

Evidence

 Evidential flexibility should only be applied to an application for a fee waiver in exceptional circumstances, where the caseworker is satisfied that there is clear and compelling evidence that the individual will not be able to afford the fee or if there is a compelling reason why the evidence cannot be provided”.

The Guidance continues at page 10:

“Assessing a fee waiver

Applicants for a fee waiver must be seeking leave to remain in one of the specified human rights routes set out above and have a substantive basis for being considered for a grant of such leave.

A fee waiver must be granted if the applicant is assessed and found:

• to credibly demonstrate they cannot afford the fee, or
• to be destitute, or
• at risk of imminent destitution, or
• their income is not sufficient to meet their child’s particular and essential additional needs”.

Affordability Test:

The Guidance proceeds to clarify the application of the Affordability Test at page 11:

“The applicant cannot afford the fee

When assessing an application, consideration must be given to whether the applicant has credibly demonstrated that they cannot afford the fee.

An applicant is considered unable to pay the fee when they do not have sufficient funds at their disposal after meeting essential living needs such as housing and food. This applies independently of whether the applicant is destitute or at risk of destitution.

It is possible for an applicant to be provided with accommodation and essential living needs by others and be in a situation where they can credibly demonstrate they cannot afford the fee. This could include support from family and friends, a charity or NGO, or the local authority or through the Asylum Support Regulations.

You should carefully consider whether the individual has spent in excess of their essential living needs and whether they have any savings. This is to ensure that only those who genuinely cannot afford the fee or have not had the ability to save for the foreseeable fee qualify for a fee waiver.

Using the information provided, the application needs to be addressed in the following way:

1. Are you satisfied that the applicant is either destitute nor at risk of imminent destitution?
2. Does the applicant pay for their accommodation?
3. How are they meeting their essential living needs? (I.e. do they pay for them/are they donated? If so, from whom?).
4. What sources of income do they have?
5. Have they provided evidence of sources of income, including details of all bank accounts that they and their partner hold (if not, these details must be requested)?
6. Does the applicant have sufficient surplus income, excluding accommodation and essential living needs, to afford the fee?
7. Has the applicant made any non-essential and excessive purchases, such as money spent on holidays, gambling or other non-essential purchases?
8. Is the information provided, even if not complete, sufficient to indicate that evidential flexibility, as described above, should be applied?
9. Do they have sufficient savings to pay the fee?

This affordability test seeks to assess the amount of income and savings available once accommodation and essential living needs for the applicant and any dependants have been met.

The total amount of resource available to the applicant must be considered, including any savings the individual may have. This should be applied to the total amount required by the applicant to pay for their application and the applications of any dependants”.

• Tip: address the above questions in advance in detail as applicable within representations or a letter/statement of explanation, including relevant supportive evidence. It is better to prepare effectively in advance rather than seek to source other evidence only in response to Home office questions to be responded to within a tight deadline.
• Tip: where “significant” sums of money appear as transaction in and out of a relevant bank account, clarify in relation to each such amount, where the funds came from, when and how the funds were used and why it was essential or relevant to incur that expense. If the sums of money do not emanate from employment or public funds, and are perhaps a loan, explain to that effect and provide evidence. If it is a private loan from a friend or relative, seek to obtain a letter from them clarifying how much was given to the applicant, why the funds were loaned, when and how the funds were given, whether the applicant has started paying back the loan or when it is expected they will start to do so.
• Tip: provide all bank account details for all relevant persons residing at the accommodation. The Home Office will carry out a credit check etc. If a relative, such as an adult child, no longer resides at the residence but uses the family address to receive their correspondence such as bank statements for privacy issues etc, the relative should provide a letter explaining these circumstances, stating when and why they moved out of the residence and confirm they are no longer  part of the household and do not receive or provide financial support to any one at the accommodation.
• Tip: in relation to having savings, a very recent blog post of 1^st March 2021 indicates, depending on the circumstances this is no bar to submission of a fee waiver request and a successful outcome might be forthcoming: ukimmigrationjusticewatch.com/2021/03/01/it-is-possible-to-obtain-a-fee-waiver-with-income-of-3000-a-month-plus-substantial-savings-in-the-family-household/. As recently as 5 March 2021, the date of publication of the new Guidance, a single mother applicant in employment with a British child but with savings of £2500 was granted a fee waiver as credible clarifications were provided in advance in relation to the savings.

Assessing whether income is not sufficient to meet the Applicant’s child’s particular and essential additional needs:

In assessing whether an applicant’s income is not sufficient to meet their child’s particular and essential additional needs, the Guidance provides at pages 13 to 14  that consideration will be given to the following:

“Although the needs of children may implicitly have been considered in earlier stages of the request for a fee waiver, this part addresses them directly.

The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of a child in the UK means that consideration of the child’s best interests, which can also be expressed as the child’s well-being, must be a primary consideration, but not the only consideration, in carrying out immigration functions that affect them.

The following questions, in addition to the earlier questions, are relevant to assessing if the request should be granted because the applicant is faced with:

• meeting the further essential needs of a child or children, and is unable to do so on account of their low income, and/or
• being required to find the amount necessary for the fee would deprive the child of having these further needs met.

It is also important to understand if the child is supported only by one parent or by both.

Questions to consider when assessing an application in relation to children:

1. Does the applicant have children?
2. Do the children live with both parents or with only one parent?
3. Do both parents provide support or only one parent?
4. Has the absent parent ever provided support?
5. What impact will paying the fees have, given the parent’s low income, on the ability of the child to enjoy or maintain full participation in school activities?
6. If it will have an impact, which are the activities in which the child cannot participate (private lessons and activities not provided by the school are not included unless part of a plan approved by the school)?
7. Does the child have further needs based on a protected characteristic, such as extra travel costs through participating, additionally to the parent, in a faith or other centre providing for children and young people, or does the child have needs based on making adjustments for a disability?

The purpose of this consideration is to assess whether a fee waiver rejection would have a disproportionate impact on the child’s well-being or best interests.

The question is not whether a fee waiver would make more money available to a parent that may then be spent on a child. It is whether paying the fee would lead to the child experiencing a lower level of well-being than they currently enjoy, being deprived of something they currently enjoy, or not having access to a specific item or items of recognised benefit”.

• Tip: the Home Office at times pose questions during the consideration of a fee waiver application. Where the other parent does not live with the applicant and does not make any financial provision for the child, a question might arise as to why  arrangements have not been made to claim child maintenance. A paragraph or two  within representations addressing this issue should be advanced to the Home Office instead of  waiting  to have an already stressed applicant being put on the defensive by a subsequent question in this regards from the Home Office.
• Tip: where there is a child living with the applicant, representations and any supportive documentary evidence addressing the above questions, where applicable, should be the norm rather than dealing with a barrage of questions later on from the Home Office within a short given deadline.

If a fee waiver request is refused- Section 3c leave and applicants who had leave to remain at the time of making a fee waiver request:

Page 22 of the Guidance provides that 10working days is given to make a paid leave to remain application if a fee waiver application is refused:

“For in time applications

• if the applicant made their request for a fee waiver in time (for example they had valid leave on the date their application was submitted), they should normally be told of a decision that they do not qualify for a fee waiver. If any additional evidence is requested they should be told to submit that in order to demonstrate they can qualify for a fee waiver. They must, within 10 working days of the decision being dispatched, submit this additional evidence that demonstrates they qualify for a fee waiver.
• if additional evidence is provided within that period that demonstrates the applicant qualifies for a fee waiver, the applicant is issued with a fee waiver token that enables them to apply for a fee free immigration application. The applicant has 10 working days to make an LTR application and, where relevant, to benefit from 3C leave.
• if the applicant provides further evidence within 10 working days but this does not demonstrate that they qualify for a fee waiver or if they do not provide any further evidence within 10 working days, the application should be rejected as invalid. In either of these scenarios the applicant has 10 working days to make a paid LTR application and to benefit, where relevant, from any 3C leave. If a paid application is not made within 10 working days, and the applicant’s leave has expired there can be no capacity to benefit from 3C leave”.

Date on which a leave application is made –  in time applicants, fee waiver grants and preserving Section 3C leave:

Paragraph 34G of the Immigration Rules states:

“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; or

(4) where the online application includes a request for a fee waiver, the date on which the online request for a fee waiver is submitted, as long as the completed application for leave to remain is submitted within 10 days of the receipt of the decision on the fee waiver application”.

Page 3 of the Guidance provides clarification in this regards:

“…………………….

Requests for a fee waiver made by those who have current Leave to Remain, and whose leave expires whilst their fee waiver request is being considered, will be allowed 10 working days from the actual date of their fee waiver decision to submit an application for Leave to Remain or Further Leave to Remain. After this, their leave will be treated as expired.

If an individual has legal leave or has submitted the fee waiver request before their leave has expired, they are not required to apply for Leave to Remain until after the outcome of their fee waiver application.

Requests for a fee waiver made by those without current Leave to Remain mean that the applicant will not be able to benefit from the 10 working days period allowed above.”

For in-time applicants, it is very important that a leave to remain application is made within the 10working days from the actual date of grant of the fee waiver in order to retain Section 3c leave. Lack of preservation of an applicant’s section 3C leave means entitlement to work or claim benefits whilst a leave application is pending to be decided, will cease.

Example: an applicant whose leave to remain expires on 10 March 2021 submits a fee waiver request on 5 March 2021, before their leave expires. The fee waiver request is granted on 19 March 2021. So long as the leave to remain application is validly completed and submitted online  by 1^st April 2021, the applicant will retain Section 3c leave.

Since the contents of a completed online fee waiver application duplicate to a good extent what will be required for completion, say in a FLR(FP) Form, it is prudent, where an online application has not already been completed, to submit the leave to remain application within the same week of receipt of the fee waiver grant.

Further clarification on the relevant date of submission of the leave to remain application can be gleaned from:

“”Requesting a fee waiver

 ……………………………

 If you make a fee waiver request before your current leave expires, and then you make an application for leave to remain, the date of that application will be the date you submitted the fee waiver request. If you make a fee waiver request and you have no leave or your current leave has expired and then submit an application for leave to remain, the date of application will be the date you submit that application for leave to remain, not the date you submitted the fee waiver request”-www.visas-immigration.service.gov.uk/product/fee-waiver?_ga=2.202470678.647032866.1615054021-731661406.1585333230

Example: an applicant whose leave to remain expires on 10 March 2021 submits a fee waiver request on 5 March 2021, before their leave expires. The fee waiver request is granted on 19 March 2021. Such a person will be treated as having submitted their leave to remain application on 5 March 2021 so long as the completed application for leave to remain is submitted within 10working days of receipt of the decision on the fee waiver application, i.e so long as the leave application is completed and submitted online by 1^st April 2021, the date of the leave to remain application will be 5 March 2021.