Many families and adults with no recourse to public funds who are supported by social services will need to make fee waiver immigration applications to regularise their status or extend their current leave to remain, and will often be doing so on human rights grounds under the following Immigration Rules:
- Family life – Appendix FM
- Private life
- Outside of the Immigration Rules.
In order for a fee waiver immigration application to be considered by the Home Office, it needs to be valid, and therefore compliant with requirements specified in the Immigration Rules. Invalid applications will be returned without the substantive claim being considered by the Home Office.
Exempt applications
Immigration fees are revised (and usually increased) in April each year. The fees and exemptions are set out under the Immigration and Nationality (Fees) Regulations 2018. The majority of immigration applications incur a fee although those which are exempt include the following types of applications:
- Asylum or Article 3
- Leave to remain under the Destitution Domestic Violence Concession
- Leave to remain as a victim of domestic violence under paragraph 289A, Appendix FM or Appendix Armed Forces, where the person is destitute
- Most applications made by children who are looked after by a local authority (excluding children supported under section 17)
- Initial period of limited leave to remain as a stateless person, or as the family member of a stateless person, under Part 14
- EC Association Agreement with Turkey
- Discretionary leave when the person has a positive grounds decision as a victim of trafficking or modern day slavery
- Leave as a domestic worker who is the victim of slavery or human trafficking
When a person is not exempt from paying an application fee, but they cannot afford the fee, then they will need to find out whether the fee waiver policy applies to them.
Application fee waiver
Applications made under the family and private life rules, or outside of the rules raising Article 8 family and private life grounds are not exempt and will cost £1533 (£1033 application fee + £500 Immigration Heath Charge as of 27/09/2018). A separate fee must be paid for each family member that is included in the application.
You should not pay the Immigration Health Surcharge (IHS) if you are applying for a fee waiver. Applicants who are granted a fee waiver are not required to pay the IHS. However, applicants who are refused a fee waiver and who are required to pay a fee in order to validate their application will be required to pay the IHS at that stage, unless they qualify for an IHS exemption on another basis.
Where a person cannot afford the application fee then they may be able to apply for a fee waiver if they are applying for leave to remain on one of the following grounds:
- 5-year partner route – only where a person is not required to meet the minimum income threshold because their sponsor is in receipt of a particular benefit and so instead must demonstrate that their sponsor can provide adequate maintenance
- 5-year parent route
- 10-year partner, parent or private life route – where a person claims that refusal of that application for leave to remain would breach their rights under Article 8 (the right to respect for private and family life) of the European Convention on Human Rights (ECHR)
- Where other rights under the ECHR are asserted and this forms the substantive basis of an application
- Extension of discretionary leave that was granted following a refusal of asylum or humanitarian protection claim – where a person claims that refusal to grant further leave to remain would breach their ECHR rights.
- Extension of discretionary leave for a victim of trafficking or slavery who has already accrued 30 months’ discretionary leave and is applying to extend it for reasons relating to trafficking or slavery
Qualifying for a fee waiver
The Home Office will waive the 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. Applicants will qualify for a fee waiver only where they can demonstrate that:
- They would be rendered destitute by payment of the fee; or
- They would be rendered destitute by payment of the fee; or
- they have no disposable income such that, without compromising their ability to accommodate themselves adequately or meet their other essential living needs, they could now either pay the fee or save the required amount 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, taking into account in particular the potential impact of such a delay on their immigration status and access to work and benefits)
- they are unable to borrow the required amount from family or friends
- there is no basis for believing that the applicant’s financial circumstances are likely to change 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)
- where the applicant has demonstrated, by way of evidence, that notwithstanding the fact that neither of the above criteria apply, there are exceptional circumstances in their case such that a fee waiver should be granted
Supporting evidence for fee waiver application
Fee waiver applications require a lot of documentary evidence, especially detailed documentary proof of their financial situation. This should include, where possible:
- Information and evidence relating to their accommodation, the type and adequacy of this, the amount of their contribution to rent or mortgage, their income and expenditure on food and other costs (this can be demonstrated through evidence such as tenancy agreements, pay slips, utility bills, bank statements etc.);
- If supported by family, friends, a local authority or a charity: evidence should be supplied detailing the nature and amount of support provided. If support is of a limited duration or about to cease, the applicant must provide a full explanation as to why this is, along with any relevant documentary evidence;
- If the applicant is street homeless: past bank statements or an eviction notion, or written testimonies from persons previously or currently providing them with support should be provided;
- Evidence showing how the individual has supported themselves to date and why their previous means of support is insufficient or no longer available to them.
For those supported by the local authority, the application should include (where possible) a detailed letter from the applicant’s social worker addressing the criteria set out above (i.e. that the applicant is not able to pay the fee now and they cannot realistically save up within the next 12 months, that they cannot borrow the money from family or friends and there is no prospect of their financial situation changing within the next 12 months).
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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