Omar, R (on the application of) v Secretary of State for the Home Department (Rev 1)

A public law court may determine an otherwise academic issue where it raises a recurring, discrete point of statutory construction, is not fact-sensitive, and is likely to require resolution in other proceedings. Immigration fee regulations requiring an application to be accompanied by a fee must be read compatibly with Convention rights. Where requiring a protected person to pay the fee would risk compelling unlawful overstaying, criminal liability or interference with family life, the fee cannot be treated as an absolute precondition to a valid application. The Secretary of State must retain sufficient flexibility to avoid that incompatibility.

The claimant, a Cameroonian national with family and medical ties in the United Kingdom, had been granted discretionary leave after successful immigration appeals. His application for further leave was rejected as invalid because it was not accompanied by the prescribed fee, which he could not afford. While the proceedings continued, the Secretary of State granted him further discretionary leave and gave assurances concerning the gap in his lawful status.

The court considered whether any live issue remained, whether the challenge should nevertheless proceed as a matter of public importance, and whether the fee provisions unlawfully prevented waiver where payment would be incompatible with Convention rights.

1. Academic issue. Although most of the claimant’s individual concerns had been addressed, the challenge to the fee requirement remained live because the same rule continued to affect him. The issue was recurring, concerned a discrete question of statutory construction, and was not fact-sensitive in its legal form. It was therefore appropriate to determine the substance of the claim.
2. The authorities on academic public law proceedings, including R v Secretary of State, ex parte Salem [1999] 1 AC 450 and R v BBC, ex parte Quintavelle (1998) 10 Admin LR 425, establish that exceptional consideration may be given where authoritative guidance would be valuable and the case is an appropriate vehicle. This was such a case.
3. The claimant could not lawfully be removed following the Tribunal’s decision that removal would disproportionately interfere with his Article 8 rights. Yet, without leave, remaining in the United Kingdom could in principle constitute an offence under section 24 of the Immigration Act 1971. Reliance on an uncertain “own motion” decision by the Secretary of State would leave the claimant in an unacceptable state of legal uncertainty.
4. The combined effect of regulations 6 and 30 of the Immigration and Nationality (Fees) Regulations 2010, requiring a fee and declaring an unpaid application invalid, had to be read in the light of section 3 of the Human Rights Act 1998. The provisions must be qualified so that the fee is not required where insisting upon payment would be incompatible with a Convention right.
5. The Secretary of State’s decision of 12 July 2010 was consequently unlawful. The court would hear submissions on the appropriate form of relief, including the proposed qualifying words.

First-instance judicial review proceedings. No appellate decision is stated in the judgment.