SS, R (on the application of) v Secretary of State for the Home Department

A person seeking waiver of an entry-clearance fee must show that the case falls within the Secretary of State’s policy, that refusal would be irrational in light of compelling circumstances, or that Convention rights require waiver. Under Article 8, fee waiver involves a possible positive obligation rather than a direct interference with family life. Where the applicant and family cannot pay, the decision-maker must assess the underlying Article 8 claim, including its strength, the closeness of family life, the child’s interests and the time needed to raise the fee. The claim need not be accepted at its highest. A child’s interests are important but do not automatically require waiver. The claim was dismissed because the family relationship was relatively weak and the evidence did not establish inability to raise the fee.

The claimant, a Somali child living in Ethiopia, sought judicial review of the Secretary of State’s refusal to waive the fee for an entry-clearance application to join family members in the United Kingdom. He relied on the Family Reunion policy, irrationality, Article 8 of the ECHR and statutory guidance concerning children. The Secretary of State reconsidered the matter twice and issued a reasoned decision applying the policy in OPI 216. The central issues were whether the policy entitled the claimant to a fee waiver, whether relevant matters had been ignored, and whether Article 8 or the claimant’s status as a child required the fee to be waived.

1. The application was dismissed. The original reliance on the Family Reunion policy was untenable because the claimant was not dependent on the sponsor before her flight to seek asylum. A person is generally entitled to waiver only if the applicable policy applies, refusal would be irrational in light of compelling circumstances, or Convention rights impose a duty to waive the fee.
2. The Secretary of State was entitled to apply the policy in force when the decision fell to be made. A previous fee-waiver practice did not create a continuing entitlement or legitimate expectation when the policy had changed.
3. Article 8 was engaged, if at all, through a possible positive obligation to facilitate family life. There is no automatic right for family members outside the United Kingdom to enter, and no automatic procedural right to have an entry-clearance application considered without charge. The relevant question was whether requiring payment failed properly to respect family life.
4. Where the applicant and family could pay the fee without great difficulty, there was no tenable Article 8 claim to waiver. Where they could not pay, the decision-maker had to assess the strength and force of the underlying Article 8 claim. The claim could be critically evaluated and did not have to be accepted at its highest, as on a summary judgment application. In marginal cases, the financial resources available and the time needed to raise the fee were also relevant.
5. The interests of a child were an important countervailing factor, informed by Article 3 of the UNCRC, but were not a trump card. Age and the closeness of the family relationship were relevant to the fair balance and the margin of appreciation.
6. The claimant’s family life was at the less intense end of the scale. The evidence did not establish that the family could not raise the fee within a reasonable time, and the claimant was being adequately supported in Ethiopia. There was therefore no duty under section 6(1) of the HRA to require waiver.

First-instance judicial review decision. No appellate history was stated in the judgment.