Inflexibility within new mandatory online application process: Redundancy of “10 working day grace period” to pay Immigration Health Surcharge

The new online application process, whilst appearing on the surface to have provided a “straightforward” method of completion of online application forms, in practice has inbuilt inflexibility and unfairness on issues that matter the most, ie fees.

In relation to validity of applications, Paragraph 34 of the Immigration Rules provides that an application for leave to remain must be made in accordance with sub-paragraphs (1) to (9). Paragraph 34 relevantly provides as follows:

“(3) Where the applicant is required to pay a fee, this fee must be paid in full in accordance with the process set out in the application form.

(4) Where the applicant is required to pay the Immigration Health Surcharge, this must be paid in accordance with the process set out on the visa and immigration pages of the GOV.UK website”.

Paragraph 34 also states:

“34A. Subject to paragraph 34B, where an application for leave to remain does not meet the requirements of paragraph 34, it is invalid and will not be considered.

34B. (1) Where an application for leave to remain does not meet the requirements of paragraph 34(1)-(9), the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification.

(2) Where an applicant does not comply with the notification in paragraph 34B(1), or with the requirements in paragraph 34(G)(4), the application is invalid and will not be considered unless the Secretary of State exercises discretion to treat an invalid application as valid and the requirements of paragraph 34(3) and (5) have been met.

(3) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules”.

Paragraph 34B above, appears to provide some measure of exercise discretion, however as will be apparent that discretion highly likes applies to other requirements of Paragraph 34 such as provision of proof of identity by an applicant.

 

The problem

On 6 November 2014, the Immigration Rules introduced a correction opportunity for invalid applications, giving applicants 10 business days to correct errors or omissions which would result in their application being invalid. With the mandatory requirement to adhere to online completion of application forms, the new application process however ensures that, for those not granted a fee waiver, the Home Office will obtain both the application fee and NHS Heath Surcharge upfront. There is now generally no longer any room for a “grace period” in relation to provision of the Surcharge. This is because the new online process does not permit a bypassing of payment of the Health Surcharge: before an applicant can pay the required Home office fee, they are automatically led to the relevant GOV.UK site which prompts payment of the surcharge. Once the charge is paid, then and only then is the applicant returned to the online form so as to make payment of the application fee. Bar cases where a fee waiver has been granted, simply put therefore, the new process does not permit actual online submission of a completed from unless both sets of fees are paid in advance.

Current information on GOV.UK website confirms the above:

“Pay the healthcare surcharge

If you’re making an immigration application online you pay the healthcare surcharge as part of the application process. You must complete the payment and return to the online immigration application in less than 30 minutes”.  https://www.gov.uk/healthcare-immigration-application/pay

Prior to the onset of the mandatory online application process regime, submission of a paper FLR(FP) application form enabled an applicant to complete the application form, attach supportive accompanying documentation and provide payment of the application fee either by cheque or via provision of debit/credit card details within the paper payment page. Whilst the Home Office took weeks to consider validity of the application, a financially challenged applicant would take that opportunity to source any remaining funds going towards the surcharge and then make online payment thereby avoiding invalidation of their application. Most times the Home Office would, upon exercising discretion send out correspondence to the applicant requiring that the surcharge be paid within 10working days of the date of their letter. With the exception of those granted fee waivers, the new application process however appears to have removed the previous flexibility that accompanied paper applications.

 

Have the in-built flexible provisions of the Immigration (Health Charge) Order 2015 been made largely redundant?

The new online application process also raises the question whether in practice the Home Office have made largely redundant relevant existing provisions of the Immigration (Health Charge) Order 2015 SI 2015 No. 792, ie the Principal Order. It is the Principal Order that requires a person who applies for entry clearance for a limited period, or for limited leave to remain in the United Kingdom, to pay an immigration health charge. The Order came into force on 6th April 2015.

Of note, as regards the consequences of a failure to pay a charge, the Explanatory Note to the 2015 Order summarises the effect of Article 6 as follows:

“Article 6 sets out the consequences of a failure to pay a charge. The entry clearance officer or the Secretary of State, as applicable, may inform the person of the failure to pay the charge. Where a person applies for entry clearance, the person will have 7 days to pay the outstanding amount or the application must be refused. Where a person applies for leave to remain, the person will have 10 days to pay the outstanding amount or the application must be treated as invalid”.

Although Article 6 was subsequently amended by the Immigration (Health Charge) (Amendment) Order 2017, SI 2017 No. 420, however those amendments related to the following as summarized by the Explanatory Note to the 2017 Order:

“Article 2 amends article 6 of the Principal Order, which sets out the consequences of a failure to pay a charge, in relation to a case where an application for leave or entry clearance is refused and the immigration health charge has either not been requested or has been refunded. If the refusal is subsequently overturned by the Secretary of State or a competent court or tribunal and the application is granted, an entry clearance officer or the Secretary of State may request payment of the charge or part of the charge. It also makes provision for cases where entry clearance or leave to remain is granted for a lesser period than that requested by the applicant and the Secretary of State has refunded part or all of the charge. If on appeal or otherwise a longer period of leave is to be granted, the Secretary of State may request payment of the charge for the additional period of leave. The applicant must then pay within the time specified in article 6(1) of the Principal Order or the additional period of leave cannot be granted”.

Information on the Home Office website currently provides:

“When you must pay

If you apply for a visa online, you pay the surcharge as part of the application.

If you apply for a visa by post, you must pay the surcharge online before you send your application. You’ll need to include your IHS reference number on the application form.

If you do not pay

You’ll get an email from UK Visas and Immigration if you do not pay the surcharge (or do not pay enough) as part of your visa or immigration application.

Once you get the email, you must pay the surcharge within:

  • 10 working days if you’re inside the UK

 

  • 7 working days if you’re outside the UK”.

https://www.gov.uk/healthcare-immigration-application/how-much-pay

The provision of a “grace period” within which to pay the surcharge appears to reflect the provisions of the Principal Order, however as a substantial majority of applications are now submitted online, the new process appears to leave no room for an in-country applicant to provide payment of the surcharge within a requested 10working days after submission of the application. This is because as set out above, the online forms have been set up not to permit this.

The very limited situations within which a “ grace period” is given to pay the surcharge is in the circumstances summarized above as per the Explanatory Note to the 2007 Order. These are however usually circumstances in which for example an applicant has already paid the surcharge on application but refused entry clearance as a partner and the surcharge is refunded. Where a resultant appeal succeeds, for the applicant to be granted entry clearance, they will first be required to pay the refunded surcharge. UK Decision Making Centre will send an email to the applicant to the following effect:

“The decision to refuse your visa application has been overturned and our office will now proceed to the next stage of your application. To complete this process we require you to undertake the following steps: Pay your I.H.S and submit your passport to the visa application centre…. Shortly, you will receive a further email providing a link for your IHS payment. If you do not receive an email within 7 working days of this email, please contact Sheffield.PostDecisionIHS@fco.gov.uk with your name, GWF reference and request the IHS payment email be sent”.

A further email will then follow stating, “Please note that if the full payment is not made by —— 2019 then your application will be refused.  If this is the only reason for refusing your application, you will have to make a new visa application and your visa fees will not be refunded”.

Another scenario in which an applicant will be given 10working days to make payment of the Surcharge applies when a settlement application is made ( settlement applications do not require payment of the surcharge). Where the application is refused, say because of adverse criminal issues and the applicant is instead granted limited leave to remain, time will be given within to make payment of the surcharge online.

The above scenarios however do not apply to the vast majority of individuals submitting applications online where that process has deliberately removed any room for enabling applicants to first pay  the required application fee, submit the online application and then await payment of the surcharge days or weeks later upon request.

 

Out -of- date and potentially misleading Home Office Policy Guidance

Home Office Guidance policy published nearly 6months ago, Applications for leave to remain: validation, variation and withdrawal currently appears to give misleading information regarding the possibility of a continuing “grace period” since in FLR(FP) applications, it is no longer possible to make applications on paper. The Guidance provides:

“Requirement: Fee payment

The online and paper applications explain how to pay the application fee. Each applicant must pay any relevant fee for their application in full and according to the process set out on the form. The fee to be paid is the one in place on the date the application is submitted (for information on how to calculate the date of application see: Date of application: original application). If the fee changes after this date and whilst an application is being considered, this does not make the application invalid.

The fees can be found on GOV.UK.

If an applicant has not paid the correct fee, you must write to them by using the validation warning template ICD 4944 on Doc Gen, or the Invalid Application Warning template on Atlas, and give them 10 working days to rectify their mistake. You must provide instructions on how to pay the correct fee. If they do not do this, you must reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen or the Invalid Application template on Atlas.

If the applicant attends a Service and Support Centre you must tell them in person that they have not paid the correct fee and ask them to pay the fee then or return the completed application form and correct fee within 10 working days.

If the correct fee is paid within 10 days the date of application is the date the original application was made.

You do not have discretion to treat an application as valid where the applicant has not paid the correct fee even when the other requirements of paragraph 34 have been met. Therefore, it is important that you give them the opportunity to pay the correct fee”.

In relation to fee waiver applications, again the Guidance policy Applications for leave to remain: validation, variation and withdrawal is grossly out of date in so far as it proceeds on the basis that it is not possible submit online fee waiver applications. In fact for the past few months, the only method of submission of fee waiver applications has been online. The Guidance currently states:

“Fee waiver or fee exemption and validation

Some applicants can apply for a fee waiver or qualify for a fee exemption. The most common is the fee waiver for particular human rights based applications. For guidance on fee waivers for these applications see: Fee Waiver: Human Rights Based and other specified applications.

Applicants making a paper application and requesting a fee waiver

If an applicant has made a paper application for leave to remain and also requested a fee waiver, if the application is made ‘in time’ (before their current leave has expired), and the request for a fee waiver is refused, you must write to them by using the validation warning template ICD 4944 on Doc Gen or the Invalid Application Warning template on Atlas and give them 10 working days to pay the application fee. If they do not pay the fee within that deadline, you must reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen or the Invalid Application template on Atlas. If the fee is paid within 10 working days the application date is the date the paper form was submitted.

If an applicant has made a paper application for leave to remain and also requested a fee waiver, if the application is made ‘out of time’ (where the applicant does not have current leave) and the request for a fee waiver is refused, you must inform them that request for a fee waiver has been refused and their application for leave to remain is therefore invalid and has been rejected using the notice of invalidity template: ICD 4946 on Doc Gen or the Invalid Application template on Atlas.

Applicants making an online application and requesting a fee waiver

It is not currently possible to request a fee waiver online”.

Fee waiver applications can be made online via the following link: https://visas-immigration.service.gov.uk/product/fee-waiver

The new online process for fee waiver applications is also confirmed by the Home Office’s other more relevant Policy Guidance, Fee waiver: Human Rights-based and other specified applications, which states:

“From 4 January 2019, fee waiver requests are to be made using the digital (online) request form and submitting the request online. The relevant application for leave to remain form can also be accessed online and completed at the same time. This online form can then be exited and stored until the outcome of the fee waiver request. When the outcome of the fee waiver request has been received, this online leave to remain form can then be retrieved and the application submitted”.

As regards a “ grace period” for payment of the Surcharge, in light of the above clarifications in relation to how the new process operates in practice, the Guidance appears to provide general information which is at odds with the actual online application process. The Guidance, Applications for leave to remain: validation, variation and withdrawal states:

“Requirement: Immigration Health Charge payment

………………..

If an applicant (including a dependant applicant) has not paid the correct IHS, you may write to them by using the template ICD 4944 on Doc Gen or the IHS payment template on Atlas and give them 10 working days to pay correctly. If they do not respond, you should normally reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen or the Invalid Application template on Atlas”.

 

Conclusion

The exercise of any discretion which might be open to the Home office to require the surcharge to be paid weeks after submission of the online form, appears unworkable in practice. This is by virtue of the existence of the introduction of the new online application process itself. Once the online application form has been submitted, an applicant will need to request an appointment within 5 working days of making their application. The new application process is set out in a recent blog post: Part 2: How not to fall foul of the new application process and ensure a valid Home Office application.

A policy of permitting a delay in payment of the surcharge by applicants will likely render the new online application process unworkable. That should however not justify the Home Office closing off entirely the ability of an applicant to be provided an opportunity in practice to make subsequent payment of the Surcharge after submission of the online application and before their application is decided. This is in fact what appears in reality to have been contemplated by the Immigration (Health Charge) Order 2015 when it came into force four years ago.

 

 

 

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