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Public Law Solicitors

Home Office’s fee waiver policy has been declared unlawful (21 May 2020)

Date: 21/05/2020
Duncan Lewis, Public Law Solicitors, Home Office’s fee waiver policy has been declared unlawful

Duncan Lewis Solicitors’ public law team have brought a case in relation to the Home Office’s fee waiver policy, with the Upper Tribunal declaring that the current policy is unlawful.

The case involved a challenge to the Home Office fee waiver policy entitled: Fee Waiver: Human Rights-based and other specified applications, version 3.0 (dated 4 January 2019).

The Applicants in this case are a family of five Ghanaian nationals who have been living in the UK for several years. On 22 December 2018, the Applicants applied for leave to remain on Article 8 ECHR grounds. In making their application, the Applicants submitted that they had no income of their own, but were supported by the charity of friends and family members for their essential needs. They submitted that they could not afford to pay the immigration fees and health surcharge which totalled £7,665.

When considering whether to grant a fee waiver for immigration applications the current guidance indicates that the decision maker should consider whether the Applicant would be “made destitute by payment of the fee”. If you cannot demonstrate this, and no “exceptional circumstances” apply (which in itself refers back to the destitution test) then the fee waiver will be refused.

On 25 January 2019 the application for a fee waiver was refused by the Respondent, who applying her own policy, found that the Applicants had not proven that they would be made destitute by payment of the fee, nor did any exceptional circumstances apply to their case. This raised an important issue, as the Applicants could not show that they would be rendered destitute by payment of the fee because they were being accommodated by friends, but nevertheless they could not afford the fee.

An application for judicial review was made on 25 April 2019. The Applicants submitted that the refusal of the fee waiver application was unlawful, and that the Respondent’s policy was also unlawful as it relied on the “destitution test” rather than the test of “affordability” i.e. whether applicants could actually pay the fees.

On 15 November 2019 permission was granted to procced by Judge Pickup and the matter proceeded to a full hearing on 02 March 2020.

On 20 May 2020 judgement was handed down by UTJ Blundell. Judge Blundell made the following findings in relation to the policy:

77 “… I consider there to be fundamental difficulties with the Fee Waiver guidance. The first is that it does not expressly state what is accepted on both sides to be the underlying test from Omar and Carter, which is whether the applicant is able in reality to afford the fee… Contrary to one of the submissions made at [20] of the respondent’s skeleton argument, however, the guidance does not make clear at any point that the “underlying question” is whether an applicant can afford the fee.”

78: “I consider the absence of a clear statement of the underlying test to be an important omission; the provision of a detailed analytical framework is unlikely to assist a caseworker who is not squarely directed to the underlying question which they are required to consider. Those tasked with applying this guidance are not lawyers. They are not expected to have familiarised themselves with the decisions from the Administrative Court. In the absence of an express statement of the underlying test, there is every danger that it will not be understood.”

80: “[Mr Mackenzie]… noted in his oral submissions that the words ‘destitute’ or ‘destitution’ appear 40 times in the guidance. Whilst the precise number of times that those words appears is not significant in itself, the submission does reflect the distance in the guidance between the test which should be applied and that which caseworkers are instructed to apply. There is no express statement of the affordability test but there is repeated and extensive reference to destitution.”

84: “…The introduction of an ‘exceptional circumstances’ dimension to this third and final stage not only serves to obscure that question; it also serves, in the mind of the literate and reasonable reader, to erect a threshold which should not be present. Those who are demonstrably unable to pay the fee should not be required to do so; they need not be unable to do so because there is ‘something exceptional about their financial circumstances.”

89: “I come to the clear conclusion that the overall effect of the guidance is to circumscribe unduly the circumstances in which an individual might qualify for a fee waiver.”

94: “The evidence which had been presented was sufficient, on any rational view, to establish that the applicants were unable to pay a combined application fee of nearly £8000 from their own resources.”


It was concluded at p.132 that the Respondents policy is unlawful and the decision to refuse the fee waiver in this case was also unlawful. This is likely to have a significant impact for those who make fee waiver applications in future.

It was also conceded by the Respondent that she has an obligation to consider all human rights claims without form or a fee, although not necessarily within a particular timeframe. This served to potentially extend the “Ahsan concession” as it known, and which originated in the case of Ahsan v SSHD [2017] EWCA Civ 2009. In this case it was conceded by the Respondent that she would consider a human rights claim without form or fee in the context of an imminent removal.

In the present case, the Respondent handed up a note at the hearing which stated that the need to pay the fee was “not a requirement prescribed by the statute” and if a person makes a claim by way of written submissions, without a formal application for leave to remain and the fee, then that claim would be considered by the Home Office, but not within any particular timeframe. This could mean that those who have fee waivers refused, will nevertheless need to have their human rights claim considered at by the Home Office at some point in time.

Saul Stone, the solicitor who acted in the case has said: “This is a landmark judgement which will provide some reprieve to the thousands of people who apply for waivers of extortionate Home Office fees each year. This group will likely include many low paid migrant NHS workers who have been unable to demonstrate that they are destitute but nevertheless cannot afford the fees required to apply to stay in the UK”.

The Home Office has been granted permission to appeal to the Court of Appeal given the significance of the issues raised.



The legal team included Public Law solicitor Saul Stone, instructing Alasdair Mackenzie of Doughty Street Chambers.




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