Challenging The Home Office Fee Waiver

In recent news the Upper Tribunal are to consider a legal challenge in the Home Offices’ currentpolicy on immigration application fee exemptions. This comes into the limelight after Duncan Lewis’ Solicitors public law team have successful secured permission for a judicial review in which they argue that the fee waiver policy wrongly focuses on whether migrants would be made “destitute” by the fee, when it should be whether the individual can afford to pay or not.

Currently, to successful have the application fee waived, individuals must demonstrate that one of the following three circumstances apply;

  1. They are destitute
  2. They would be made destitute by the payment of the fee
  3. There are exceptional circumstances

In this case a family of five application fees amount to over £7,000. Whilst they provided evidence that they could not afford this, they were not able to establish destitution because they still had somewhere to live. Ducan Lewis argues that to focus on just outright destitution is unlawful, but rather the correct way to assess is simply affordability: do they have the money or not?

Granting permission for the case to proceed further the  Upper Tribunal Judge Pickup found that “it is arguable that insofar as the Fee Waiver Policy may exclude those who cannot afford to pay the fees, but who do not qualify under the Policy’s definition of destitute/destitution, it is unreasonable, irrational or unlawful”.

The Home Office says however, that the policy is compatible with the leading cases of Omar [2012] EWHC 3448 (Admin) and Carter [2014] EWHC 2603 (Admin).