Beatson J has held in a judgment handed down on Friday 30 November that the 2010 Fees Regulations (and by implication the current 2012 Fees Regs) are unlawful, in so far as they do not allow for any waiver of the application fee for someone applying for leave to remain under Article 8 who is unable to pay it. Accordingly the Regs have to be read in an HRA-compliant way so as to mean that an application is not treated as invalid if to do so would breach Convention rights. The Judge accepted that it did breach Convention rights if a person entitled to remain in the UK (in this case on Article 8 grounds) had to overstay as the price of remaining here.
The Judge resisted attempts by the SSHD to argue that the claim was redundant in that the SSHD had already granted the claimant further leave to remain (she claimed, perhaps surprisingly, that this grant was made ‘of her own motion’ rather than in response to the application, which she maintained was invalid) and he ruled, in effect, that the SSHD cannot keep knocking cases out by settling them on the facts and refusing to litigate the point of principle.
The SSHD sought and was granted permission to appeal, but has asked for an extension of time to file her appellant’s notice – perhaps indicating that, on reflection, she will accept the outcome and amend the Fees Regs. Please note that the primary submission had not been that the Regs should be read down under the HRA but rather that they should be quashed as ultra vires the 1971 Act, but the Judge did not go down that path.
Clearly there may be a question as to how far the judgment reaches beyond cases with similar facts, but the door has at least been opened in terms of arguing that a refusal to waive a fee may be unlawful if it leaves an applicant with a valid Article 8 claim with a choice between overstaying and leaving the UK.