Undocumented Zimbabwean left in legal limbo by the Home Office? You may be eligible to apply for leave to remain

 

Due to the instability which prevailed in Zimbabwe, there was for a good number of years no enforced removals from the UK to that country, resulting in many affected Zimbabwean nationals accruing lengthy residence in the UK, whilst subject to temporary admission.

Such affected persons, whilst here for substantial periods, do not yet fulfil the requirements of the 20year Rule but are still required to report regularly, with some experiencing harsh conditions, unable to work or access medical treatment.

Caselaw has potential impact upon such undocumented  Zimbabwean nationals who have been left in legal limbo by the Home Office over a significant period of time.

If the answer to the following questions is yes, you may be in a position to start considering  advancing an appropriate case for a grant of leave to remain:

  • have you been in the United Kingdom for a substantial number of years?
  • were you previously on Temporary Admission during your stay in the UK?
  • are you now subject to Immigration Bail?
  • have you been reporting to the Home Office?

The previous UK policy of non- removals to Zimbabwe is just one aspect for consideration: there are several other factors which apply depending on the circumstances of each case.

Where you wish to discuss your potential eligibility to apply for leave to remain, call or email Alice Muzira of AurexLegal Solicitors:

  • Telephone: 07940772506
  • Email: alice.muzira@aurexlegal.co.uk

Home Office delays: FLR(FP) applications not subject to a service standard due to COVID-19 pandemic “severe disruption” says the Home Office

“I don’t understand……..why is my application taking over 8months to be decided, the Home Office only took 5months to decide the last one?”, so asks an applicant in exasperation, clearly fed-up with the delay in receiving a decision from the Home Office.

Home Office customer service standards for processing applications from those applying to remain on a temporary basis is stated to be 8weeks. Customers applying in the UK for indefinite leave to remain or no time limit (NTL) should expect to have their applications decided within 6months.

Home Office service standard processing times for standard applications (6 months or 8 weeks depending on application type) will start when they receive an application.

Relevant published information also makes it clear: “If there is a problem with your application or if it is complex, we will write to explain why it will not be decided within the normal standard. We will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard. The letter will explain what will happen next”.

Immigration practitioners have ready access to this information and so to do applicants, however with reference to FLR(FP) applications in particular, it is a myth that the Home Office periodically contact applicants with progress updates. Nor do they write in to even acknowledge receipt of a submitted application apart from enabling receipt of a vague general automated email  received upon submission of an online application.

Applicants are simply left to wallow, month following month of deafening silence with chaser correspondence from applicants being largely ignored.

This was the state of affairs for one such applicant until the following response was received a month after an emailed complaint to the Home Office:

“Thank you for your email of 16 February 2021 where you have raised a complaint about the delay in making a decision on your client, Mrs …………’s, application for Further Leave to Remain (FLR).

I am sorry for any frustration, but I am unable to uphold your complaint as the delay has not been down to any maladministration on the part of the business. It will hopefully be helpful if I explain further.

FLR(FP) applications are not presently subject to a service standard. This is due to their potential complexity, relying as they tend to on human rights claims.

All applications are subject to enquiries with other government departments and international organisations to ensure that the statutory requirements have been satisfied, and I would add that the extent and length of time taken to complete these enquiries varies according to the particular circumstance of each application. I am afraid that we are therefore unable to provide a timescale for completion. I would also point out that the COVID-19 pandemic has caused severe disruption to our services, and this has led to further delays which have been down to circumstances beyond our control.

What I can confirm is that Mrs ……..’s current application was submitted prior to her previous grant of leave expiring, and so her application is therefore ‘in time’ and is covered by 3C leave. This means that the conditions of this previous grant of leave will be extended until a decision is made on her current outstanding application. Further guidance on 3C leave can be found here: https://www.gov.uk/government/publications/3c-and-3d-leave.

I appreciate that your client may be disappointed that I have been unable to provide a timescale for a decision, but I hope that my response has helped to explain the position.

……………………………………………………”

Substantial fees are required by the Home Office before FLR(FP) applications can be considered (£2612.20 per applicant). The Home Office state there are “severe disruptions” caused by the Covid-19 pandemic. In such circumstances, in the absence of relevant clarifications to this effect on their website, the Home Office should be emailing each and every “customer” so affected instead of maintaining a wall of silence, until provoked into responding.   The current standard  automated confirmation emails received on submission of an online application could contain this information so that applicants are on notice from the beginning that there might be some delays to progression of their applications and that standard service times do not currently apply.

There are most likely much more categories of applicants, including asylum claimants, who have and will see  delays in progression and decision making.

In some cases, the Home Office are also granting leave to remain whilst also indicating within grant letters, that due to the Covid-19 pandemic, passports will be retained until such time as it is possible to return them.

Briefly, in relation to addressing issues, of course a review of such a response as above from the Complaints Unit can be sought however an applicant may also consider approaching their local MP so that MP representations may be made on their behalf, with such action possibly eliciting a decision.

Depending on the circumstances of a case and upon whether an applicant so instructs/wishes, a  PAP letter before claim/action can be sent to the Home Office as a starting point in seeking to challenge by way of judicial review, a delay in decision-making as unlawful.

Before commencement of actual judicial review proceedings, an immigration practitioner should however ensure they are well-versed with the principles and reasoning emanating from the well-known line of cases which have considered issues of maladministration, unlawful delays and damages.

 

 

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 1st 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 1st 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 1st April 2021, the date of the leave to remain application will be 5 March 2021.

 

 

Top Tip: circumstances in which you can submit your private and family life claim without paying any Home Office fees or submit a fee waiver application

Paragraph 34 of the Immigration Rules provides the requirements to be met in order for an application for leave to remain based on private and family life to be valid.  An invalid application can be rejected unconsidered by the Home Office.

Two of the “mandatory” requirements are that the applicable Home Office application fee be paid ( currently £1033.00 plus biometrics enrolment fee of £19.20 per applicant) as well as the Immigration Health Surcharge (£1560.00 per applicant).

Under GEN.1.9. of Appendix FM, a valid application is not required when the Article 8 family or private life claim is raised:

  • as part of an asylum claim, or
  • as part of a further submission in person after an asylum claim has been refused, or
  • where a migrant is in immigration detention- a migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention, or
  • in an appeal (subject to the consent of the Secretary of State where applicable)

For example:

  • An undocumented parent with a child who has resided in the UK continuously for at least 7years may claim asylum, say, on the basis that they fear return to their country of origin having engaged in a “mixed” marriage in the UK. Upon the Home Office making a decision on the asylum claim, Paragraph 276ADE(1)(iv) of the Immigration Rules will also be considered in relation to the child’s private life in the UK based on the 7year Rule. Where evidence of continuous residence is submitted and the “reasonableness test” is satisfied in relation to the child, as well as the Suitability criteria, leave to remain may be granted ultimately to the family on a 10year route to settlement if the asylum claim does not succeed.
  • A failed asylum seeker may rely upon Paragraph 276ADE(1) (iii) of the Immigration Rules placing reliance on 20years continuous residence in the UK. Instead of submitting an online application and paying Home Office fees, such a person may rely on the Further Submissions procedure and make an appointment to submit their application package in person at UKVI Liverpool(current procedure however due to the  Covid – 19 pandemic, is that Further Submissions are to be submitted via email or by post).
  • A failed asylum seeker may have a British child, either due to the child obtaining registration as British having been born and resided in the UK for 10years or due to the child being British arising out of the applicant’s partner being British or settled in the UK.  The failed asylum seeker applicant may rely on their family life with their British citizen Partner and British Child as a basis of stay in the UK via the Further Submissions Procedure.
  • An applicant‘s asylum or human rights claim may have been refused by the Home Office however during the course of the appeal and before the appeal is heard, the appellant gives birth to a British child.  The appellant may rely on the birth of their child as a new matter. A new matter is a human rights or protection claim that the Home Office has not previously considered in the decision under appeal or a response to a section 120 notice. However for the Tribunal to have jurisdiction in hearing the appeal on this issue, the Home Office must give consent to the new matter being adjudicated upon by the Tribunal Judge during the course of the appeal.

All this means that applicants whose circumstances fall into the above categories do not have to complete any online application form, nor make provision for Home Office fees. They should however provide written representations as to why they should be granted leave to remain in the UK and provide relevant  supportive documents/evidence.

It is possible to obtain a Fee Waiver with income of £3000 a month plus substantial savings in the family household

 

In relation to Home Office application fees, an applicant’s first thought should be, “how will I qualify for a fee waiver?” rather than, “where will I obtain the money to pay for my application fees?”.

There is no reason why a person applying for leave to remain on human rights grounds should make provision of Home Office application fees where the requirements of the Home Office’s Fee Waiver Guidance appear capable of being met.

The fact that an applicant is in employment and has savings is no bar to submitting a fee waiver request.

There should be no hesitation in requesting a fee waiver where an applicant has a partner and they are both in employment.

An applicant in the UK, with a bank account held for example in Nigeria, having a non- UK based husband living and working in Nigeria, can apply for a fee waiver.

Evidential Flexibility

There can be several reasons why an applicant may not wish to avail themselves of the fee waiver procedure:  transactions appearing in provided bank accounts statements may in themselves give an account which may require clarifications from an applicant in relation to either source of income or the presence of savings adequate to cover the required application fees.

Relatively new Guidance on fee waivers published in June 2020 now provides for evidential flexibility with the following issues also relevant for consideration:

“A fee waiver may be granted if the applicant is assessed and it is found that any of the following apply:

  • they are not able to pay the fee
  • they are destitute
  • they are at risk of imminent destitution
  • their income is not sufficient to meet a child’s particular and additional needs
  • they are faced with exceptional financial circumstances”

In relation to evidential flexibility, the Guidance now helpfully states:

Whilst the onus is on the applicant to provide sufficient evidence for the fee waiver to be granted there will be some cases where providing evidence is more difficult than in others. Among these cases will be some where it is foreseeable that repeated requests to the applicant to provide evidence may not result in further relevant information being produced because the initial statement of circumstances indicates that further documentary evidence does not exist or cannot reasonably be provided by the applicant because it is not available to them.

Evidential flexibility means that the decision maker can grant the fee waiver without seeking further additional evidence or documentation if they are satisfied that reasonable evidence has been provided in the round as to the applicant’s circumstances and that, without a fee waiver, the applicant will not be able to apply for leave to remain.

Situations in which the decision maker may be flexible in requiring further additional evidence are as follows:

  • the applicant is a single parent and restricted in seeking and taking employment due to the need to look after children (this includes both pre-school children and children who can no longer attend a school due to COVID-19 restrictions)
  • cases where eviction notices have been issued, or eviction has actually taken place
  • cases where family, friends, or an identifiable organisation is providing essential living needs, e.g. a charity or food bank, and the applicant has no other means of being provided with essential living needs
  • the applicant is the parent or main guardian of a child who is not attending school because of COVID-19 concerns
  • there is evidence of vulnerability related to pregnancy, a long-term health condition, disability, or mental illness – this includes dependants as well as the applicant

There is no automatic presumption that an application will be successful, but if the case meets any of the conditions set out above, the effect of that will be to require the decision maker to consider if further information and evidence is necessary. Although the above list is not exhaustive it is not expected that there will be many other types of cases where evidential flexibility will be appropriate. Each case should still be considered on its own individual merits. Whether to apply evidential flexibility can still be outweighed by other relevant matters, including the intentional disposal of funds and other countervailing evidence”.

Example outcomes of fee waiver applications

Single mother with monthly income of £3000 and savings of £4450 in the household:

A single mother in part – time employment earning £691.91 a month seeks to submit a fee waiver request prior to making an extension application for permission to stay as a parent.

She receives public funds, including child benefit, Carer’s Allowance, Disability Living Allowance in relation to her British child including working tax credits totalling  £2316.41 month.

She also receives £30.00 a month from the father of her British child.

The total monthly income is £3038.32.

In relation to the applicant’s outgoings, these are £3012.12 monthly.

The fee waiver request form asks for details of household income and assets. This includes income and assets belonging to an 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.

Not only are the applicant’s bank account statements provided but also those of her children.

The British child’s bank account has funds of £3550.00.

Her other dependant child, for the purposes of the leave to remain application, has funds of £900.00 in his bank account.

As regards the total funds of £4450.00 in the children’s bank accounts, representations are made regarding the children’s evidenced medical conditions, pending family court proceedings which are expected to require the services of a family solicitor on a private paying basis  as well as the future expenses the family is expected to incur in moving to larger council accommodation. The Home Office decision maker is also requested to take into account the children ‘s best interests.

Outcome: fee waiver is granted within a matter of days of uploading representations and supportive evidence.

Applicant and British partner working in the UK:

Applicant seeks to extend her leave having initially been granted leave to remain as the parent of a British citizen child. She also has an older dependant child who is under the age of 18 who lives with her and is to be included in the leave to remain application.

Applicant earns £950.00 a month.

She has a new partner and since he is part of her household, his earnings of £2400. 00 a month are disclosed to the Home Office.

£140 a month is received in relation to the applicant’s British child.

The total income of the household is £3490.00 a month.

£700 remains from the income after the expenses of the household are considered.

Outcome: fee waiver request is granted without further enquiries from the Home Office.

Applicant with a bank account in Nigeria with husband living and working in Nigeria:

The Applicant came to the UK on a visit visa.

She intends to submit a leave to remain application following the outcome of a fee waiver request.

She receives the equivalent of £150 a month from her husband( who has never been  to the UK but lives and works in Nigeria earning the equivalent of £1200 a month).  The applicant is temporarily accommodated by social services on an emergency basis  as she also has her Nigerian child with her in the UK.

The expenses of the household in Nigeria including the husband’s bank statements, his payslip as well as amount of rent paid each month in Nigeria are provided.

Currency converter, www1.oanda.com/currency/converter/, is utilised to work out the exact income and expenses in Nigeria.

Outcome: fee waiver request is granted in less than two weeks.

 

Conclusion

In situations where it might appear on the surface that submission of a fee waiver request is an exercise in futility, it is important to obtain relevant legal advice perhaps a few weeks prior to the expiry of any leave to remain(a fee waiver application is required to be submitted in advance of the substantive leave to remain application).

It is often the case that an effectively prepared fee waiver request will take up much more time in preparation than the leave to remain application itself however there are substantial savings to be made where a fee waiver is granted- it is clear that none of the applicants in the above scenarios had to part with  the £5224.40 that would otherwise have been required by the Home Office in each of their circumstances.

 

How to avoid paying Home Office application fees

 

 

It goes without saying that from the minute an applicant is granted limited leave to remain in the UK, they are from that moment onwards, in practical effect already in debt to the Home Office.

This is because on next seeking to extend their leave, the Home Office will ordinarily require provision of substantial application fees so as to accept an application as validly submitted and deserving of consideration.

For applicants without savings and in considerable financial straits, the way forward is usually:

  • a delay in submission of the extension leave application, thereby remaining in the UK without leave, ie becoming an overstayer, until such time as the required funds are raised
  • non – submission of the application, resulting in the individual likely eventually coming to the attention of immigration enforcement
  • submission of an application by the applicant and their spouse but leaving one or two child family members out of the equation
  • borrowing of funds from friends or family
  • falling into debt by providing the application fees but unable to fund other necessary financial obligations relevant to the effective running of the household

There are however several ways that applicants may utilise, as provided for in Home office Guidance or Rules, to completely side- step the charging provisions and obtain a consideration of their applications by the Home Office.

The following free of charge procedures are available to eligible applicants:

  • Fee Waiver application process
  • Further Submissions procedure
  • Representations from an applicant detained under immigration powers
  • Red.0002 (enforcement non-charged) Section 120 Notice procedure(where the Notice is served by the Home Office)

FEES REQUIRED BY THE HOME OFFICE

Application fees and forms are set out here – https://www.gov.uk/topic/immigration-operational-guidance/fees-forms

Currently, the Home Office require £1033.00 application fees per applicant or dependant for leave to remain applications, such as FLR(FP) applications.

A biometrics enrolment fee of £19. 20 per person will be collected online at the same time as payment of the application fee is made.

For an FLR(FP) application for example, the Immigration Health Surcharge payable per person is £1560.00.

Taking the above figures into account, a family unit consisting of parents and two children will be required by the Home Office to provide a total of £10,448.80 in relation to an FLR(FP) initial or extension application.

FEE WAIVER APPLICATION PROCEDURE

Applying for a fee waiver is one of the main procedures relied upon by applicants to obtain exemption from paying Home Office applications fees and the health surcharge.

Guidance Fee waiver: Human Rights-based and other specified applications  instructs Home office decision makers how to consider applications for a fee waiver from applicants making a specified human rights application and where to require payment of the fee before deciding the application would be incompatible with a person’s rights under the European Convention on Human Rights (ECHR). The fee waiver policy also applies to applications from victims of trafficking who seek to extend their leave to remain in certain circumstances.

Types of applications covered by the Guidance

The guidance applies to the following types of application:

  • applications for leave to remain under the 5-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance
  • applications for leave to remain under the 5-year parent route
  • applications for leave to remain under the 10-year partner, parent or private life route, where the applicant claims that refusal of that application for leave to remain would breach their rights (or the rights of other specified persons) under ECHR Article 8 (the right to respect for private and family life)
  • applications for leave to remain on the basis of other ECHR rights
  • applications for further leave to remain from applicants granted discretionary leave (DL) following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further leave to remain would breach their ECHR rights
  • applications for further DL from victims of trafficking or slavery who have had a positive conclusive grounds decision from a competent authority of the national referral mechanism (NRM), have already accrued

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) are not covered by the fee waiver policy. ILR applications need to be accompanied by the correct fee in order to be considered.

Basis of grant of a fee waiver application

A fee waiver may be granted if the applicant is assessed and it is found that any of the following apply:

  • they are not able to pay the fee
  • they are destitute
  • they are at risk of imminent destitution
  • their income is not sufficient to meet a child’s particular and additional needs
  • they are faced with exceptional financial circumstances

Documentary Evidence

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 onus is on the applicant to demonstrate that they qualify for a fee waiver. The applicant must provide relevant documentation to evidence their fee waiver application, including detailed evidence as to their financial circumstances.

For example,  Home Office caseworkers will normally expect to see information and evidence relating to the applicant’s 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. The nature of the evidence provided will vary depending on the individual circumstances of the applicant, but the Home Office will expect to see evidence appropriate to the circumstances that are being claimed.

Evidential flexibility and fee waiver applications

Whilst the onus is on the applicant to provide sufficient evidence for the fee waiver to be granted, the Home Office appreciate that there will be some cases where providing evidence is more difficult than in others.

Among the cases will be some where it is foreseeable that repeated requests to the applicant to provide evidence may not result in further relevant information being produced because the initial statement of circumstances indicates that further documentary evidence does not exist or cannot reasonably be provided by the applicant because it is not available to them.

Evidential flexibility means that the decision maker can grant the fee waiver without seeking further additional evidence or documentation if they are satisfied that reasonable evidence has been provided in the round as to the applicant’s circumstances and that, without a fee waiver, the applicant will not be able to apply for leave to remain.

Situations in which the decision maker may be flexible in requiring further additional evidence are as follows:

  • the applicant is a single parent and restricted in seeking and taking employment due to the need to look after children (this includes both pre-school children and children who can no longer attend a school due to COVID-19 restrictions)
  • cases where eviction notices have been issued, or eviction has actually taken place
  • cases where family, friends, or an identifiable organisation is providing essential living needs, e.g. a charity or food bank, and the applicant has no other means of being provided with essential living needs
  • the applicant is the parent or main guardian of a child who is not attending school because of COVID-19 concerns
  • there is evidence of vulnerability related to pregnancy, a long-term health condition, disability, or mental illness – this includes dependants as well as the applicant.

There is no automatic presumption that an application will be successful, but if the case meets any of the conditions set out above, the effect of that will be to require the decision maker to consider if further information and evidence is necessary.

Although the above list is not exhaustive, the Home Office state that it is not expected that there will be many other types of cases where evidential flexibility will be appropriate. Each case will still be considered on its own individual merits.

Whether to apply evidential flexibility can still be outweighed by other relevant matters, including the intentional disposal of funds and other countervailing evidence.

Grant of Fee Waiver

An applicant will be required to submit an online fee waiver form in advance of the substantive leave to remain application.

When applying for a fee waiver the applicant will be asked to provide details of their financial circumstances. This will mainly be in the form of statements covering the 6 months period prior to the date of application for all bank or building society accounts they hold, and a full breakdown of their monthly income and expenditure at the time of application

If an applicant is granted a fee waiver they will be issued with a Unique Reference Number(URN) to be used when applying for  leave to  remain online. This electronic pass  allows applicants  to complete and submit the substantive application form for leave to remain and proceed without paying Home office application fees.

The substantive application must be submitted within 10 working days of the date of the decision to grant the waiver.

The applicant must then make a Service and Support Centre appointment within 17 working days. Failure to do this could result in the URN no longer being valid and a new fee waiver application may be required.

Date of substantive application if fee waiver is granted

If an applicant makes a fee waiver request before their current leave expires, and then they make an application for leave to remain, the date of that application will be the date the applicant submitted the fee waiver request.

If an applicant makes a fee waiver request and they have no leave or their current leave has expired and then submit an application for leave to remain, the date of application will be the date they submit that application for leave to remain, not the date they submitted the fee waiver request.

Refusal of fee waiver application

A fee waiver decision is not subject to a reconsideration request as it is not an immigration decision. A decision will be made on the basis of the information set out in the application and any supplementary information about the applicant’s circumstances which they provide in support of their application.

Online applicants without a fee waiver or refused a fee waive will have to submit the relevant fee in order to proceed with submission of their leave application.

It is also open for an applicant to make a further request for a fee waiver.

Fee Waiver applications submitted by applicants holding valid leave to remain

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 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.

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 days period allowed above.

Travel Assistance

Applicants who have been granted a fee waiver and who fit any of the following criteria may be eligible to apply for travel assistance to attend their closest Service and Support Centre:

  • in receipt of asylum support or Local Authority support
  • Domestic Violence customers
  • a responsible adult attending an appointment with a child in social care
  • anyone where paying for travel would render them destitute
  • where travel is over 3 miles

FAILED ASYLUM SEEKERS AND FURTHER SUBMISSIONS PROCEDURE

There is no apparent reason why failed asylum seekers should not take advantage of the further submissions procedure and submit fresh claims based on human rights, ie Article 3( medical conditions) and Article 8 of the ECHR(right to private and family life).

The further submissions procedure does not require payment of application fees. Further representations and supportive evidence can be submitted and considered by the Home Office free of charge.

Guidance Asylum policy instruction: further submissions explains the policy, process and procedure which must be followed when considering further submissions following the refusal of an asylum or human rights claim, or where an asylum claim has been withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules. It applies to asylum or human rights based further submissions and covers:

  • the process for making asylum and human rights based further submissions
  • circumstances in which those lodging further submissions may be detained under immigration detention powers
  • considering evidence provided as further submissions
  • how to apply paragraph 353 of the Immigration Rules

What is a fresh claim?

Home Office Caseworkers only need to decide if further submissions amount to a fresh claim on asylum or human rights grounds when they have already considered the additional evidence provided, and decided not to grant any leave. In such cases,  the caseworker will be required to then consider whether the further submissions amount to a fresh claim. The claimant will only be entitled to an in-country right of appeal if it is accepted that there is a fresh claim.

Paragraph 353 states that submissions will amount to a fresh claim if they are significantly different from material that has already been considered. Submissions will only be significantly different if the content:

  • has not already been considered; and
  • taken together with previously considered material, creates a realistic prospect of success before the Tribunal on protection or human rights grounds, including claims under Article 8 ECHR (which will be considered under the Family or Private Life Rules, where appropriate)

Covid-19 Pandemic: submission by email or post

Prior to the first lockdown on 23rd March 2020, there  was a requirement in the majority of cases for persons wishing to provide further submissions to the Home Office, to book an advance appointment and attend at Liverpool Home Office to present representations and supportive evidence.

Because of coronavirus (COVID-19), applicants cannot currently submit their evidence in person.

The applicable procedure is presentation of further submissions in one of two ways:

Email to:

Refused Case Management Further Submissions Unit

CSUEC@homeoffice.gov.uk

By Post to:

Refused Case Management Further Submissions Unit
Level 7
The Capital Building
Old Hall Street
Liverpool
L3 9PP

Applicants are required to Download and fill in the further submissions form and email or post it to the Refused Case Management team.

Together with the further submissions, applicants are advised to include copies or photos of the following documents (if they have them) to prove their identity:

  • valid passport
  • IS96/Bail Form 201 with photograph
  • previous immigration status document
  • driving licence (if the applicant has already submitted a photo of themselves)

Pre Covid 19: suspended further submissions appointment procedure at Liverpool Home office

Prior to March 2020, all further submissions following the refusal of asylum or humanitarian protection had to be made in person at the Further Submissions Unit (FSU) in Liverpool. Claimants were required make an appointment to attend the FSU unless they fell into one of the exceptional categories.

The Liverpool appointments procedure may still continue to apply after lockdown.

The FSU operates an appointment only system. To make an appointment, individuals were required to contact the FSU (the telephone number is 0151 213 2411). The FSU would then send written confirmation of the appointment (by letter or e-mail) to the individual, including the address of the FSU and a link to the form on the Gov.UK website.

Claimants were required complete the form and bring it to their appointment in Liverpool, along with supportive documentation and representations including:

  • a completed Further Submissions form detailing the additional information the claimant would like the Home Office to consider
  • supporting documents, including, where available, any Reasons For Refusal Letters (RFRLs) or appeal determinations
  • application Registration Card (ARC) if still in possession of this
  • passport (of the claimant and all dependants in the UK, if not with the Home Office)
  • Evidence of family life in the UK (for family or private life based submissions)
  • Police Registration Certificates (if held)
  • any other Identity documents (if held)
  • 4 un-separated passport-sized photographs (of the claimant and any dependants)
  • evidence of accommodation (if not provided by the Home Office)
  • any other documents relevant to the claim

SUBMMISSION OF REPRESENTATIONS BY DETAINED APPLICANTS

The circumstances in which the requirement to submit a valid application will not be applied are set out in paragraph 276A0 of the Immigration Rules and in paragraph GEN 1.9 of Appendix FM of those Rules.

Submission of a valid application necessarily requires submission of a specified application form and fees, however as will be evident below, where Paragraph 276A0 and GEN 1.9 apply, no such application form or fees need be provided by an applicant.

Paragraph GEN 1.9 of Appendix FM

Paragraph GEN 1.9 of Appendix FM states:

GEN.1.9. In this Appendix:

(a) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable); and

(b) where an application or claim raising Article 8 is made in any of the circumstances specified in paragraph GEN.1.9.(a), or is considered by the Secretary of State under paragraph A277C of these rules, the requirements of paragraphs R-LTRP.1.1.(c) and R-LTRPT.1.1.(c) are not met”.

Paragraph 276A0 of the Immigration Rules

Paragraph 276A0 of the Immigration Rules provides:

276A0. For the purposes of paragraph 276ADE(1) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable)”.

Paragraphs 276ADE enables applicants to place reliance on their private life in the UK having regard to the 20year Rule, 7year Rule including young adults who have resided in the UK half of their lives:

Paragraph 276ADE provides:

“276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

In essence, where an Article 8 private and family life claim is raised( whether to be considered within the Immigration Rules or outside on Article 8 exceptional grounds) there is no requirement to make provision for Home office application fees where the Article 8 claim is relied upon:

  • as part of an asylum claim
  • where a migrant is in immigration detention.
  • in an appeal, subject to consent of the Secretary of State being applicable

RED.0002 (ENFORCMENT NON- CHARGED) SECTION 120 NOTICE PROCEDURE

A person can take advantage of RED.0002 (enforcement non-charged) Section 120 Notice, if served by the Home Office. In providing a response to the Notice, no application form need be completed nor application fees be provided by the claimant.

It is important to be aware of the single power of removal provided for in legislation so as to appreciate the significance of RED Notices.

The single power of removal is set out in section 10 of the Immigration and Asylum Act 1999 as amended by the  Immigration Act 2014. It outlines the different circumstances in which notice of liability to removal can be served and guidance on serving RED (Removal, Enforcement and Detention) notices.

Under section 10 of the Immigration and Asylum Act 1999 a person who requires, but does not have, leave to enter or remain in the UK is liable to removal. No removal decision is required but the person must still be notified of their liability to removal.

Significance of Red Notices

RED notices are used to tell an individual:

  • they are liable to removal
  • the country to which they will be removed

The notices also include:

  • information on the consequences of being in the UK illegally
  • information about any help that might be available to return home
  • a section 120 notice which requires the migrant to raise with the Home Office, as soon as reasonably practicable, any grounds not previously raised as to why they should be allowed to remain in or not be removed from the UK

The migrant has an ongoing duty to raise new grounds under section 120 of the Nationality, Immigration and Asylum Act 2002 while in the UK without leave.

RED.0002 forms- (enforcement non-charged)

RED.0002 forms are section 120 notices and a reminder notice of the section 120 duty. There are 3 RED.0002 notices, the first 2 forms are section 120 notices, and the third is a reminder notice of the section 120 duty:

1) RED.0002 (charged): used where a person is directed towards making a charged application if they wish to make an article 8 claim (for example they are not detained and there is no operational reason to waive the requirement).

2) RED.0002 (enforcement non-charged): used where a person is not directed towards making a charged application (for example where removals casework are preparing a case for tasking to enforcement, or where a person is detained). If necessary the Home office Caseworker can fill in a time limit for response (for example if while not detained, the person was given 14 days to respond to an earlier section 120, but they are now detained and this period needs to be shortened).

3) RED.0002 (reminder): reminds a person both of their liability to removal and their section 120 duty and may be adapted to refer to either charged or noncharged applications, this may be served at reporting events.

A charged application requires the individual to complete and submit an application form and make provision of the Home office fees before their representations can be considered by the Home Office.

A RED.0002 (enforcement non-charged) Section 120 Notice, once served means that the person to whom it is directed, does not need to make a valid charged application when providing reasons as to why they should be allowed to remain in the UK.  The person may, without more, simply provide documentation relevant to their claim and provide all reasons as to why they should be permitted to remain in the UK and then wait for a decision from the Home Office.