The Immigration (Health Charge) Order 2015 2015 No. 792 commenced on 6 April 2015. The Secretary of State made the Order in exercise of the powers conferred by sections 38 and 74(8) of the Immigration Act 2014(a). The Order 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.

Applicability of the Health Surcharge

For applications for entry clearance or leave to remain as a student, in accordance with the immigration rules and also applications for entry clearance or leave to remain as the dependant of a student, in accordance with the immigration rules, the annual amount will be £150.00. For all other applications for entry clearance or leave to remain the annual amount will be £200.00.

Where a person applies for entry clearance under a paragraph of the immigration rules the person must pay the specified annual amount for each year of the maximum period of leave to enter which could have effect on the person’s arrival in the United Kingdom, or be granted pursuant to the entry clearance, if the entry clearance is granted for the maximum period under the immigration rules in relation to that paragraph.Where a person applies for leave to remain in the United Kingdom under a paragraph of the immigration rules, the person must pay the specified annual amount for each year of the maximum period of leave to remain which could be granted pursuant to the application under the immigration rules in relation to that paragraph.

Where the maximum period of leave to enter or remain would be for less than a year, or includes part of a year, the amount payable for that part is either half of the specified annual amount for a period of up to 6 months, or the specified annual amount if the part of the year is more than 6 months.

Where the person applies for entry clearance or leave to remain outside the immigration rules then the person must pay the specified annual amount multiplied by 2.5.

The Secretary of State has discretion to reduce, waive or refund all or part of a charge.

As regards 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.

However, if a person applies for entry clearance or leave to remain but, before the application is determined, the person reclaims or otherwise withdraws the payment made, the application will be refused.

Where the person has been granted entry clearance or leave to remain, but reclaims or otherwise withdraws the payment, any entry clearance granted must be revoked, any leave to enter conferred or granted pursuant to the entry clearance must be cancelled, and any leave to remain must be cancelled.

Where a person has been refused entry clearance or leave to remain but that refusal is held to be unlawful by a competent court or tribunal, and the Secretary of State has refunded the amount of the charge, an entry clearance officer or Secretary of State may inform the person of their failure to pay the charge. The person must then pay within the specified time or the application must be refused.

Article 7 and Schedule 2 to the Order make provision for exemptions from the requirement to pay the immigration health charge.

Article 8 of the health Charge Order provides that the Secretary of State has discretion to reduce, waive or refund all or part of a charge. The Secretary of State has published in April 2015 an updated   fee waiver Policy Instruction termed “Fee Waiver FLR(FP) 7 FLR(O) Forms”. It is reasonable to expect that where an applicant relies on a fee waiver regarding the actual home office application fee on the basis of destitution then they can also seek to   state they are exempt from paying the health charge.

Home Office Application Fee Waiver Policy

The Secretary of State will waive the home office application fee in respect of certain types of immigration application, where failure to do so would render the applicant incapable of exercising their rights under the European Convention on Human Rights (ECHR). The courts have considered fee waivers in an immigration context in two key judgments: Omar, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin) and Carter, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin). The applications covered by the Home Office guidance are applications for leave to remain under the 10-year partner, parent or private life route on an FLR(FP) form, where the applicant claims that refusal of that application for leave to remain would breach his or her rights (or the rights of other specified persons) under Article 8 ECHR (the right to respect for private and family life), or applications for leave to remain on the basis of an ECHR article other than Article 8 made on an FLR(O) form.

Financial and residential enquiries, such as credit checks, interviews and home visits, may be conducted where appropriate in assessing the application for a fee waiver.

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 applicant must provide relevant supporting documentation to evidence their claim, 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 accommodation, the type and adequacy of this, the amount of their rent/mortgage, or the amount of the applicant’s contribution towards this, their income and outgoings in terms of spending on food, utility bills, etc. This information should be borne out by independent evidence, such as their tenancy agreement, pay slips, utility bills, bank statements, etc. The nature of the evidence provided will necessarily vary depending on the individual circumstances of the applicant, but the Home Office would expect to see evidence appropriate to the circumstances claimed.

If the applicant is being supported by family or friends, a Local Authority or a registered charity, the Home office caseworker would expect to see corroborating documentary evidence confirming provision of support and detailing the exact nature and amount of the support provided. In all cases evidence must be up-to-date.

The fee waiver Policy Guidance provides:

“2.0 Qualifying for a fee waiver

An applicant will qualify for a fee waiver in the following circumstances:

1. When the applicant has demonstrated, by way of evidence, that they are destitute. (As set out more fully below, a person is deemed to be destitute for these purposes when they do not have adequate accommodation or any means of obtaining it; and/or they cannot meet their other essential living needs); or
2. When the applicant has demonstrated, by way of evidence, that they would be rendered destitute by payment of the fee, because whilst they have adequate accommodation and can meet their essential living needs:
3. a) They have no additional disposable income such that they could either:

 

(i) pay the fee now; or

(ii) save the required amount within a reasonable period (12 months) (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time);

in either event, without compromising their ability to accommodate themselves adequately or meet their other essential living needs; and

1. b) They have no ability to borrow the required amount from family or friends; and

 

1. c) There is no basis for concluding that the applicant’s financial circumstances are likely to change within a reasonable period (12 months) (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time); or

 

3. The applicant has demonstrated, by way of evidence, that notwithstanding the fact that neither 1. nor 2. apply, there are exceptional circumstances in their case such that the fee waiver should be granted. The ‘exceptional circumstances’ relied on must relate to the applicant’s financial circumstances and their ability to pay the fee. For further guidance on ‘exceptional circumstances’ see Section 4.10 below.

 3.0 Destitution

Consistent with the provision of support to asylum seekers and their dependants under section 95 of the Immigration and Asylum Act 1999, a person is destitute if:

1. a) They do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or
2. b) They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

While the definition is the same between asylum support and the fee waiver policy, each is assessed separately (and subject to different guidance for caseworkers) and provision of one does not automatically lead to the other.

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4.8 Assessing destitution

An applicant claiming to be destitute will need to provide evidence, including of their financial position, demonstrating that they do not have access to adequate accommodation or any means of obtaining it, or they cannot meet their other essential living needs.

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4.9 Assessing whether an applicant would be rendered destitute by payment of the fee

Applicants may qualify for a fee waiver on the basis that, although they are not currently destitute, they would be rendered destitute by payment of the fee. In order to qualify for a fee waiver on this basis:

1. The applicant must have no or very limited disposable income such that they could neither pay the fee now, nor realistically afford to save sufficient money to pay the fee within a reasonable period (12 months) and, in the latter case, that it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time; and

 

2. The applicant must have no ability to borrow the required amount from family or friends; and

 

3. There must be no basis for concluding that the applicant’s financial circumstances are likely to change within a reasonable period (12 months), and it would be reasonable in all the circumstances to expect the applicant to delay the application for this length of time.

 The applicant will need to provide relevant evidence of their income and expenditure so that their disposable income can be calculated. Caseworkers will need to use their judgement in assessing the applicant’s spending habits to decide whether or not they are considered to have disposable income and the amount of this.

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4.10 Assessing whether there are exceptional circumstances

An applicant who cannot evidence destitution or show that they would be rendered destitute by paying the fee will not normally qualify for a fee waiver. However, there may be exceptional circumstances which mean that a fee waiver should be granted. Caseworkers have discretion to grant a fee waiver in appropriate cases. Exceptional circumstances in this context relate only to the applicant’s financial circumstances and their ability to pay the application fee and not to consideration of their substantive human rights claim..”

If the applicant does not qualify for a fee waiver, their application for leave to remain will be rejected as invalid for non-payment of the required fee and their substantive application will not be considered.

 CONSIDERATIONS

The new changes regarding the health charge do not take into account whether an applicant is able to fund their medical needs privately at the point of needing it. An applicant applying under the “7year rule” with 3 dependants will need to provide for the home office application fee  which will be £2596.00 whilst the NHS surcharge will be £2000.00. This brings the total cost to £4596.00. The surcharge is not a visa fee. Where there could have been an  option of requiring applicants to privately fund their medical needs then introducing a separate charge to go with a visa application seems unreasonable and exorbitant.

For affected families who prior to 6 April 2015   were preparing to submit human rights applications and were gathering funds towards the Home Office fee this means that the cost of the surcharge will considerably delay in submission of the intended applications whilst steps are made to gather yet  more funds. This leaves them open to removal action even where they have a qualifying child under the Immigration Rules by reference to the “7year Rule” and are also able to show it would be unreasonable to expect the child to leave the UK. In other cases the lack of reqired funds may result in the family   not being able to submit a leave  application at all where they are also unable due to personal circumstances to show they qualify for a fee exemption.

The intention is to enable applicants to gain access to the NHS and make appropriate financial contribution to the cost of their health care, however this does not take into account whether an applicant during their stay in the UK has ever had access to the NHS. Previous recourse to the health charge can be  ascertained from NHS records and information. A family including a father, the mother and 2 children under the of 18years but over the age of 7years may not have required medical attention for several years yet they will be required to pay the surcharge before the application is accepted as  valid for consideration.

Where however that family includes children born in the UK and those children are aged  10years or over, have lived in the UK until they were 10 or older  and able to show they have spent no more than 90days outside the United Kingdom on each of the first 10years of their life  those children can apply for British registration to be considered at the Secretary of State’s discretion . Such applications do not include the surcharge however the relevant fee currently for registration of such children as British citizens is £ £749 for each applicant.

The Government further gives applicants no option to   have private medical insurance in the UK with such evidence to be submitted with their applications. The suitability criteria relevant to applications for leave to remain are that an applicant will be refused limited leave to remain where one or more relevant NHS bodies has notified the Secretary of State that the applicant failed to pay charges in accordance  with the relevant NHS Regulations on charges to overseas visitors and the outstanding charges have a total value of at least £1000.  A large number of applicants relying on human rights provisions were initially visitors who may have overstayed their leave to enter and as such  the possibility of a debt owing to the NHS means that where there is an option to privately fund their healthcare needs in the UK then in light of a  potential adverse decision in relation to an outstanding debt, for this reason it is more than likely that such applicants will seek to clear an NHS debt prior to applying for leave to remain.

It is seems not currently clear whether applicants who had no leave to remain at the time of application are able to access non -emergency NHS care whilst the application is pending and whilst the home office retain the funds paid towards the health surcharge.

As regards enabling submission of valid applications, the introduction of the health surcharge seems in practical effect to make it difficult for those families with qualifying children yet   no employment, reliant on others for support and    unable to show they qualify for a fee waiver. This leaves them with no option but to seek to delay submission of their applications and source and provide the required exorbitant fees required simply to have their application considered valid before actual consideration. Provision of these fees however does not mean that   the quality in reasoning will be improved if an adverse decision is made by the Home Office.