In-country fee waiver: who qualifies and why

Given the high cost of applying for leave to remain all the way to British nationality, it is possible for some people to get a fee waiver on an immigration application which was submitted within the UK. The Home Office has published guidance on the fee waiver system.

Three cases form the basis of the Home Office Policy on fee waivers for human rights applications. The first is R (Omar) v SSHD [2012] when the High Court found that the Secretary of State is under an obligation to make and interpret the Rules in light of section 3 of the Human Rights Act. That means that specified fees is not due to be required to be paid when being incompatible with a person’s Convention rights. In other words, charging a fee for a human rights based immigration application would be a breach of human rights, where the person concerned cannot afford it.

The second case is R (Carter) v SSHD [2014] where it states that if a person demonstrates that they cannot pay the fee, then a policy which does not provide for a fee waiver is incompatible with the Convention rights.

The third major case is R (Dzinku-Laggison and Ors) v SSHD [2020] which states that the Home Office should assess whether an applicant can afford the fee and the Court stated that the correct case is affordability.

Who can qualify for a Fee Waiver?

In accordance with the case law only those who have a human rights claim will be eligible for a fee waiver. Applications eligible for in country fee waiver are:

1. Applications for permission to stay under the five years routes
2. Applications for permission to stay under the five years parent route
3. Applications for permission to stay under the 10 years partner or parent or private life route where the applicant claims that refusal of the application for permission would breach their right under Article 8 of the Convention of Human Rights

Applications for indefinite leave to remain, even if based on a human rights claim are not covered. In principle applicants can extend their leave to remain indefinitely until they can actually afford to pay for the indefinite leave application which is currently £2,404 and will probably increase.

What is the criteria to be granted a Fee Waiver?

According to the Home Office guidance, the applicant will be granted a fee waiver if one of the following circumstances apply:

1. They cannot afford the fee
2. They are destitute
3. They are at risk of imminent destitution
4. Their income is not sufficient to meet the child’s particular and essential additional needs

The definition of destitution given in the Home Office guidance is the same for assessing whether asylum seekers are eligible for asylum support namely:

1. Do they have adequate accommodation or any means of obtaining it
2. They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.