It’s no secret that the Home Office usually increase their application fees annually, and with the recent doubling in the immigration health surcharge costs. Applicants can spend approximately £1,000 just in NHS fees alone. On average, therefore, an applicant will need to spend a bit more than £2,000 to get leave to remain in the UK. In fact, this is usually the bare minimum considering that Applicants may need to pay £150 to passing a Home Office approved English Language Test and £610 if applicants wish to opt for the priority service to receive a decision in 24 hours for those who cannot afford not to travel during the time it takes for the Home Office to reach a decision. What’s also more costly is the use of legal representations, which unfortunately during recent times, has become far more of a necessity as opposed to an additional service.
It is no surprise therefore that many can’t afford the fees to regularise their stay or renew their leave to remain.
However, please note that case law has found it unlawful to hat it was unlawful for the Secretary of State to charge a fee for a human rights based application where the applicant cannot afford the fee.
Who qualifies for a waiver?
In accordance with the above case law, only those who raise a human right claim will be eligible for a fee waiver, and only where this human rights claim “constitutes a substantive basis of their application”. More particularly, the following groups can qualify:
- 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 Article 8 of the European Convention on Human Rights (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 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 discretionary leave from victims of trafficking or slavery who have had a positive conclusive grounds decision, have already accrued 30 months’
It is possible for an applicant to pay for their fee but apply for a fee waiver for one or more dependent discretionary leave and are seeking to extend it for reasons related to trafficking or slavery.
Criteria for being granted a fee waiver:
Applicants for a fee waiver will need to show that one of the following three circumstances apply:
1. They are destitute
Applicants are considered destitute when:
- They do not have adequate accommodation or any means of obtaining it; or
- They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs
2. They would be rendered destitute by payment of the fee
This route is for those who are not destitute at the time of the application, and have adequate accommodation and can meet their other essential living needs, but do not have any disposable income.
In these cases, however, there is also a need to consider:
- whether, if receiving accommodation and essential living needs support from family or friends, they are able to borrow the required amount for their immigration application also (but only if receiving accommodation this way)
- whether the applicant’s financial circumstances are likely to change – for instance, for those with the relevant leave, because of an offer of employment – within a reasonable period (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time)
3. There are exceptional circumstances
The guidance says very little on what are considered exceptional circumstances, except by giving this example:
“where the applicant is not destitute and would not be rendered destitute by paying the fee but cannot afford to pay it because they need to spend the money on essential child welfare needs, because of their child’s illness or disability. This does not mean discretionary items, but it does mean substantial items such as travel to special needs facilities, or expenses linked to responding to illness, or long term health conditions or disability”.