Carter, R (On the Application Of) v Secretary of State for the Home Department

1. Pursuant to limited permission being granted to the Claimant (C) by Judge Stephen Davies on 27 February 2014 the issue in this case is: whether the Defendant’s (D) decision to refuse to waive the application fee on Form FLR(O) in respect of C gives rise to a breach of Article 8 ECHR. Relevant Factual Background

2. C is aged 22 years. He was born in Jamaica on 13 March 1992. He is a Jamaican national present in the UK without leave. He entered the UK aged 7 as a visitor on 17 September 1999 with limited leave, expiring on 17 March 2000. He has remained in the UK since then unlawfully, residing with and supported by his grandmother who has indefinite leave to remain. He attended schools in the Manchester area until the age of 16 years, leaving school on 20 June 2008. On 10 July 2009 he was convicted of burglary of a dwelling and theft.

3. C’s first attempt to regularise his stay in the UK was made when he was 20 years of age in July 2012. Via his solicitors, the South Manchester Law Centre (SMLC) he applied on form FLR(O) for leave to remain in the UK on the basis of his Article 8 rights. The application form explained the basis on which SMLC considered that C was exempt from payment of the fee. It stated that he was dependent on his grandmother whose sole income is her state pension. D rejected the application on 9 August 2012 because of non payment of the fee. On 28 September 2012 SMLC sent a pre-action protocol letter to D and judicial review proceedings were issued on 31 October 2012.

4. On 30 November 2012, Beatson J (as he then was) handed down judgment in Omar v Secretary of State for the Home Department [2012] EWHC 3448. A stay was granted pending an appeal to the Court of Appeal in Omar , but the Defendant in that case subsequently withdrew her appeal.

5. On 22 July 2013, a consent order was made whereby the parties agreed to stay proceedings pending the submission by C of a further application to be considered pursuant to the new “Destitution Fee Waiver” Policy. C made that application for leave to remain (LTR) on 5 September 2013. It was made on form FLR(O). He also submitted a form Appendix 1 FLR(O) in support of his request for fee exemption on the grounds that “he is destitute and dependent entirely upon the financial support of his grandmother…(and) has no other source of money or income.” Further details were given corroborating his claim for fee exemption.

6. By a letter dated 19 October 2013, D rejected C’s new application, refusing to waive the application fee. A box was ticked which states “Your client does not qualify for a fee waiver because you are not considered to be destitute and there are no exceptional circumstances”. The reason given was: “ The reason your client has not met the requirement above is due to the fact that it is stated in Appendix 1 FLR(O) form that your client lives with his grandmother, Hyacinth Hoyes. In her letter dated 3 September 2013 Ms Hoyes states that your client has never lived with anyone else in the UK and that they have lived together for 14 years. Ms Hoyes also states that she doesn’t charge your client any rent and that she buys all his food. Further she states that “I give him no more than £20 per week on average”. As a result we do not consider your client meets the definition of destitution and is not eligible for a fee exemption. ”

7. C notified the court and D that he wished to challenge this decision and continue with the proceedings. He served an Amended Statement of Facts and Grounds. Permission was refused on paper but, as mentioned above, limited permission was granted by Judge Stephen Davies on 27 February 2014. Legal Materials

8. I set out in the Appendix to this judgment the relevant parts of the statutes, statutory instruments and policy documents to which I have been referred.

9. In outline: (i) The power to charge fees in connection with immigration is contained in section 51 of the Immigration Asylum and Nationality Act 2006 (“ The 2006 Act ”). Section 51(3) (c) permits Regulations to be made which “ may confer a discretion to reduce, waive or refund all or part of a fee. ” Article3(2)(a) of the Immigration and Nationality (Fees) Order 2011 (“The 2011 Order”) requires a fee for applications for LTR. Regulation 3 of the Immigration and Nationality (Fees) Regulations 2013 (“The 2013 Regulations”), in conjunction with table 1 of Appendix 1 to the 2013 Regulations, specifies a fee of £578 for an application for limited LTR This has been increased to £601 since 6 April 2014 under the Immigration and Nationality (Fees) Regulations 2014. . Following the decision in Omar D introduced: “Appendix 1 FLR(O) – request for fee exemption RFE from Applicant who is destitute seeking to apply for leave to remain on the basis of Article 8 Right to Respect for Family or Private Life under Appendix FM or paragraph 276ADE”. The form states: Definition of Destitution “ You will only be considered to be destitute if: a) You do not have adequate accommodation or any means of obtaining it (whether or not your other essential living needs are met); or b) You have adequate accommodation or the means of obtaining it, but cannot meet your other essential living needs. ”

10. D’s policy is set out in the Immigration Directorate Instructions dated September 2013 (“The 2013 Directions”). The following extracts are of particular relevance: Section 1.1 In respect of applications relying on private life: (i) “ Applicants will qualify for a fee waiver only where they can demonstrate on the basis of evidence provided that they are destitute, or where there are exceptional circumstances .” (ii) In section 2 the definition of destitution set out above is repeated. (iii) Section 3.8 deals with how to assess destitution. (iv) Section 7 provides for fee waiver, absence evidence of destitution in exceptional circumstances. “Exceptional circumstances” are said to relate only to the Applicant’s financial circumstances and the fact that they wish to rely on an ECHR rights to remain in the UK. Omar

11. The case of Omar dealt with the position of a person who had an Article 8 right to remain in the UK which had been recognised by the Tribunal but who could not pay the fee to apply to extend a grant of six months leave.

12. The material issue in Omar was described as follows: “3. ……. The first is whether the Secretary of State for the Home Department acted unlawfully on 12 July 2010 in refusing to accept the claimant's application for an extension of discretionary leave without a fee. This involves a challenge to the decision made on 12 July 2010, to the vires of the relevant regulations, which provide for a fee and do not provide for it to be possible for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS support.” NASS is the National Asylum Support Scheme. At paragraph 13, it was noted re Omar : “He was still housed and supported by NASS, and in the light of the minimum funds granted by NASS, he did not have sufficient funds to pay the fee.”

13. At paragraph 64 the judge encapsulated the Claimant’s submission: “There has, he submitted, been no explanation of why provision is made in the rules for waiver of fees in respect of destitute persons who seek leave to enter (the position considered in R (QB) v Secretary of State [2010] EWHC 483 (Admin) ) and those who have been the victims of domestic violence but not for a person whose only means of support are payments by NASS or other categories of people…”

14. In the circumstances of Omar the judge said: “68. …It is common ground that the claimant cannot currently be removed from the UK as a result of his successful appeal against deportation. He does not, however, have the right of abode in the UK and is required to have leave to remain. He cannot be accorded a status which is not part of the statutory scheme: see S v Secretary of State [2006] EWCA Civ. 1157 and see also R(Alvi) v Secretary of State [2012] UKSC 33 at [26] – [33] and [109] per Lord Hope and Lord Walker. If the claimant remains in the UK after the expiry of a period of limited leave, in principle he will commit an offence under section 24 of the 1971 Act.

69. The tribunal has held that it is a disproportionate interference with the claimant's Article 8 rights to deport him. If he cannot afford the fee, unless he obtains leave without making an application, or there is some flexibility about the requirement to pay the fee, he is put in the position of committing an offence under section 24 and taking the (perhaps remote) risk of being prosecuted. There is also a risk that there will be an interference with his family life…”

15. Finally the judge stated: “82. …The Secretary of State, as a public official, is under a duty to make and interpret rules in the light of section 3 of the Human Rights Act. The requirement in regulations 6 and 30 of the 2010 Fees Regulations that, in this class of case, a fee must be paid, there is no provision for waiver and an application without a fee "is not validly made" must, in the light of section 3, be read subject to a qualification that the specified fee is not due where to require it to be paid would be incompatible with a person's Convention rights. Bearing in mind the approach of the House of Lords in Ghaidan v Godin Mendoza , I do not consider that the implication of qualifying words with this effect contradicts the essential principles or scope of the regulations. Accordingly, the decision made by the Secretary of State on 12 July 2010 was unlawful. [2004] UKHL 30

83. On the assumption that his submissions were rejected, Mr Johnson invited me to do so by adding the following qualifying words to the end of the regulation: "except where that would be incompatible with a Convention right". Mr Mackenzie agreed…” The Claimant’s Challenge to Policy

16. C’s submission on this point can be initially encapsulated as follows: (i) The crucial point is that he cannot afford the fee. If that is the case then, irrespective of whether he meets the test of destitution or exceptional circumstances in Appendix 1 FLR(O), his Article 8 rights are breached. (ii) The evidence clearly establishes that C is unable to afford the fee in that he receives a maximum cash allowance of £20 per week, well below the minimum sum stipulated by law to be necessary for a single person of his age to live upon – the single person allowance for income support is £56.80 per week. (iii) The refusal by D to process C’s application to regularise his status in the UK is an ongoing breach of Article 8. This is regardless of the fact that D has taken no steps to remove C. Article 8 encompasses the right to develop as a person . C has no permission to work and claim benefits. He would find it difficult to pursue higher education/vocational training. Therefore C is being forced by D’s decision to subsist below the poverty line. D’s decision results interferes with C’s personal autonomy and right to self determination and therefore interferes with his Article 8 rights. These rights can only properly be given effect to by a grant of status in the UK; a promise not to remove a person pending some further event is insufficient of recognition of Article 8 rights Pretty v UK 2346/02, paragraph 61. . C is entitled to a decision about his rights to reside in the UK. He is being deprived of this because his application has been rejected for want of the fee which he cannot pay. See Omar paras 68 and 69; MS ( Ivory Coast ) [2007] EWCA Civ. 133 , paragraph 72. The SS Case [R(Shueb Sheikh) v SSHD [2011] EWHC 3390 (Admin) ]

17. D relies upon the SS case whilst accepting that it concerned an entry clearance application rather than an in country application for LTR. The critical paragraph of Sales J’s judgment is paragraph 74. In my judgment I have to be cautious in adopting too much of paragraph 74, given that the whole context of the judge’s comments was that the Claimant’s Article 8 claim was “ to be assessed by reference to the principles applicable to identify the extent of positive obligations under that provision, rather than by reference to the principles applicable where a direct interference with a right under Article 8(1) is in issue”. (Para 74(3)). C’s case is that the refusal to waive the fee and process his application is an interference with his Article 8 rights and so, to adopt Sales J’s words in paragraph 74(4) “ This means that the case is in a rather different category ”. As to which see paragraph … below

18. What I accept does translate from paragraph 74 of SS to the present situation is the following: – It is fair and proportionate to the legitimate interests identified in Article 8(2) for state authorities to focus attention primarily on the ability on an applicant to pay the relevant fee. If there is no great difficulty in them raising funds to pay the fee there will be no tenable case under Article 8 for the Applicant to be exempted.

19. C submitted that para 74 (10) SS is relevant to my decision. In that sub-paragraph Sales J said: “10) But in a case where the claimant, sponsor and family can show that they have no ability to pay the fee, it will in my view be necessary to assess in broad terms the strength and force of the underlying claim which is to be made. If, upon undertaking such an exercise, it can be seen that the claimant may well have a strong claim under Article 8 involving an aspect of the interests protected by that provision of particularly compelling force… and that insistence on payment of the fee will set that claim at nought, then in my view an obligation may arise under Article 8 for the Secretary of State to waive the fee… the Secretary of State and the court… are entitled to subject the case to critical evaluation to determine its true underlying strength…”

20. I do not consider that it is relevant in the case of Claimants such as the present one whether or not they can demonstrate a strong claim under Article 8. In the SS case the refusal to waive the fee would have set the Article 8 claim “at nought”. That is not the position here. I have to consider the issue of principle: if someone has a potentially valid claim for LTR, is D’s policy unlawful? Further, paragraph 74(10) SS must be read in the context of the policy which Sales J was considering. This is set out at paragraph 35 SS and stated ( interalia ) “ Destitution alone will not be considered as valid grounds for waiving visa fee .”

21. In short I do not derive substantial assistance from SS because (a) It is clearly distinguishable because it concerned a different category of Article 8 rights which were potential, rather than actual. (b) C’s Article 8 rights will not be set at nought. (c) There was no destitution exception to the requirement to pay a fee in the policy being considered in SS. Article 8 and D’s Destitution/Exceptional Circumstances Policy – Discussion

22. There was a measure of important common ground between the parties. Three questions need to be asked, namely: (i) Is D’s policy capable of interfering with an Article 8 right? Both parties agree that it is. (ii) Does the policy pursue a legitimate aim? Again both parties accept that the policy does pursue a legitimate aim as set out in paragraphs 7.1 – 7.3 of the Explanatory Memorandum to the 2013 Regulations. (iii) Is the policy capable of being applied in a proportionate way? Although the parties agree on the question, they disagree in part on the answer. C accepts D’s submission that D has a margin of appreciation. Also, both parties accept the qualification that the margin of appreciation cannot extend to denial of a Convention right.

23. Having set out the structure of the issues, I return to the critical point of whether the policy is incompatible with a Convention right. So long as the policy is not so incompatible, D is entitled to adopt a rigorous approach to the question of fees . See Elmi v SSHD [2010] EWHC Civ. 2774 (para 42) , the SS case, para 72; R(NF) v Secretary of State for the Home Department [2014] EWHC 1971 (Admin) , paras 59 & 62, and R(MM & ORS) v SSHD [2014] EWCA Civ. 985 , paras 148 – 150.

24. The question is whether the line should be drawn by restricting fee waiver to those who are genuinely destitute or can demonstrate exceptional circumstances. I accept that if that line is lawful then a rigorous policy is justified, as set out in paragraph 3.8 of the 2013 Directions which deals with the evidence required for an applicant to demonstrate that they are destitute. It is also reasonable and proportionate for those who claim they are destitute to provide information and evidence as to their finances. Case workers should not have to make their own enquiries to see whether the applicant meets the policy requirements.

25. I further accept in general terms D’s submission that (to the extent possible) a policy should provide clear objective guidance to case workers dealing with fee waiver applications. Unless guidance is clear and objective, transparency, consistency and fairness may be compromised. Decisions may give rise to further litigation with attendant costs, which costs would fall upon other applicants/the tax payer.

26. The difficulty with D’s case, however, became apparent during argument. It seems to me that there are two major problems with the policy. These are: (i) The narrow point In Omar the Claimant could not afford the fee and the facts of Omar dealt with the situation where a Claimant was “destitute or in receipt only of NASS support”. Paragraph 3. Consistent with the factual position in Omar , D’s Destitution Policy makes specific provision for those in receipt of NASS. In paragraph 3.4 of the 2013 Directions, if a person is receiving asylum support then “they will already have been assessed as being destitute by a Home Office caseworker” and if the Applicant’s financial circumstances are unchanged “they will qualify for a fee waiver and it is not necessary to re-assess destitution” There is a similar provision for Applicants in receipt of local authority support; see paragraph 3.5 of the 2013 directions. The effect of this exemption is that a person assessed as destitute who then receives NASS has their accommodation and essential needs met. In other words, the receipt of NASS by definition takes them outwith D’s definition of destitution. Nevertheless, they qualify as of right for fee waiver. Yet, a person who, by virtue of their status, does not qualify for NASS but who has a roof over their head and whose essential living needs are being met does not qualify, even if they prove that they are in no better position than an NASS recipient applicant. This internal inconsistency in the policy is a serious concern. The Government website shows that NASS puts a roof over an Applicant’s head and, for a single person aged 18 or over, provides a weekly payment of £36.62. (ii) The wider point In any event, the heart of the matter is what is the true ratio of Omar ? To what extent does Omar assist in determining where the incompatibility with a Convention right arises? D’s submission is that the policy is entirely consistent with the ratio because “this class of case” means a person who is destitute or in receipt only of NASS support. (I note that D’s Skeleton Argument did not initially include the words “in receipt only of NASS support”). I do not accept that the ratio is so limited. I note from paragraph 13 of Omar paragraph 82. Omar , the Claimant’s submission in that case that “in the light of the minimum funds granted by NASS, he did not have sufficient funds to pay the fee.” It seems to me that if a person demonstrates upon proper proof that they cannot pay the fee, then a policy which does not provide for waiver in those circumstances is incompatible with a Convention right. See also Omar , paragraph 69.

27. The difficulty with D’s submission became apparent in the following manner: I put to D’s Counsel the position where an applicant, not in receipt of NASS, proved that he was no better off than such a person. The response was that the exceptional circumstances provision enabled a degree of flexibility. I pressed by asking to what extent somebody in such a financial position would come within exceptional circumstances, since the 2013 Directions at paragraph 7 seem to circumscribe very closely the ambit of exceptional circumstances. After lunch Mr Kellar informed me as follows: “ The Defendant accepts in principle if a person were able to prove with sufficient evidence of satisfactory quality that their financial position was such that were they to pay the application fee, they would be left without sufficient funds to meet their essential living needs and would thereby be rendered destitute within the meaning of the policy, this could amount to exceptional circumstances. In making that assessment, the Defendant would consider all the circumstances of the case, including, but not limited to, the income and assets of the applicant under the support currently or potentially available to them from family members, friends or others. ” This position of D: • As read out to me, does not reflect the reality that if a person is in that position, it is not a question of them being able to pay the fee and thereby being rendered destitute within the meaning of the policy. Such a person would not be able to get their hands on the hundreds of pounds necessary to pay the fee. D appeared to accept this point by qualifying the statement by saying that exceptional circumstance may apply if in reality, as a result of an applicant’s financial position, they could not pay the fee. • Does not appear to accord with the policy on exceptional circumstances. (policy, Paragraph 7). Nor does it appear to accord with the Introduction to the policy (paragraph 1.0) which refers to the Omar case and says in terms “ this class of case refers to cases such as that of the Claimant, who was in receipt of asylum support because he was destitute. In light of this judgment a new fee waiver has been introduced for those who can evidence that they are destitute, when making a relevant Human Rights claim. ” • Does not sit easily with the fact that there is nothing on the request for fee exemption form (Appendix 1 FLR (O)) which indicates D’s position as explained to me. Page 1 of the form expressly says “ you should only complete this form if you are seeking a fee exemption because you are destitute and so are unable to pay the fee for your leave to remain application form FLR(O) ” Then the definition of destitution is set out. D referred to section 8 which just allows an applicant to set out any additional information which the applicant feels D should take into account in determining exemption. However in my judgment this does not take the matter any further. • (i) Puts a person who may prove themselves to be in no better position than an applicant in receipt of NASS into a discretionary “exceptional circumstances” category whereas the applicant who is in receipt of NASS has a right to fee exemption. (ii) If the “exceptional circumstances” provision is broader than it appears from paragraph 7 of the policy, then that undermines the laudable objective of having guidance which is clear and objective. The Present Case

28. C was not “destitute” within the meaning of the policy. Permission was refused to challenge this decision of D. C has adequate accommodation and his essential living needs are met.

29. As regards the documentary evidence in support of his claim, C has provided: (i) A letter in relation to pension credit (ii) One un-itemised bank statement of his grandmother for the period of July/August 2013 D criticizes the absence of statements for a longer period and the absence of a breakdown of the income and expenditure on the bank statement disclosed . Therefore D submits that, even if the destitution/exceptional circumstances policy is unlawful, C has not satisfied the burden of showing that he is unable to afford the relevant fee. This bank statement shows balance brought forward from 8 July statement £156.60 total money in £1641.94; total money out (£953.51). Balance at close of business 8 August 2013 £845.03.

30. D submits that if, as I have found, the policy is unlawful, I should reject C’s claim because C did not provide sufficient evidence of satisfactory quality that he could not pay the fee. They refer to page 8 of the application form and in particular the statement “ If you are being supported by a friend or relative, we require written evidence in the form of a letter confirming this, with formal documentation showing that person’s financial resources.”

31. I note in passing that the form is directed to the position where somebody is actually being supported by a relative. D’s explanation to me of the exceptional circumstances Policy would include income and assets of the applicant under the support currently or potentially available to him from family members, friends or others.

32. I have referred in paragraph 6 of this judgment to the decision letter rejecting C’s application. It is clear that that decision letter was based on destitution. It specifically says “As a result we do not consider your client meets the definition of destitution and is not liable for a fee exemption.” In my judgment, given that the decision is founded solely on a policy which I consider to be unlawful, C is entitled to a reconsideration by D. It is not for the court in the circumstances of the present case to make that decision. This is particularly so as the application form is geared to the destitution criteria.

33. I therefore declare that the Policy is unlawful in that the decision to refuse to waive the application fee based on the destitution criteria and exceptional circumstances (as described in paragraph 7 of the 2013 Directions) is incompatible with the Article 8 Rights of a person such as C, who is within the jurisdiction and who has an arguable private/family life within Article 8(1) ECHR. Supplemental Judgment

34. This supplemental judgment follows unsuccessful discussions between the parties as to the form of order and the question of a stay.

35. I have had regard to the Defendant’s application for permission to appeal and submissions on disposal dated 26 July 2014 and the Claimant’s written submissions on the form of an order consequential on the judgment to be handed down on 29 July 2014, dated 25 July 2014.

36. I have decided: (i) That permission to appeal to the Court of Appeal should be granted for the reasons given in paragraphs 6 and 7 of Mr Kellar’s submissions. This is the impact on the fees/waiver system and the important points of principle raised by the case. I also consider that the real prospects of success threshold is satisfied. (ii) There is good reason to grant a stay of this case. These are set out in paragraph 12 of Mr Kellar’s submissions. I am not persuaded that the case of Payne [2011] EWCA Civ. 492 prevents my granting a stay. I am delaying the execution of my judgment until the determination of its correctness has been made by the Court of Appeal.