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

A fee-waiver policy for an immigration application engages Article 8 where refusal of the waiver may prevent an arguable private or family life claim from being considered. A policy restricting waivers to persons who satisfy a destitution test or exceptional circumstances is unlawful if it provides no effective waiver where an applicant proves that payment of the fee would leave them unable to meet their essential living needs. The policy must be sufficiently clear and objective, but the Secretary of State may require detailed financial evidence and adopt a rigorous approach. A court should ordinarily remit the individual application for reconsideration rather than determine the underlying fee-waiver question itself.

The claimant, a Jamaican national who had lived in the United Kingdom since childhood, sought leave to remain on private and family life grounds. His application on form FLR(O) was rejected because he had not paid the fee. A later application for a fee waiver was refused because he lived with his grandmother, who provided accommodation, food and limited financial support, so he was not considered destitute under the policy.

The claimant challenged the lawfulness of the September 2013 fee-waiver policy. The central issue was whether limiting waivers to applicants who could demonstrate destitution or exceptional financial circumstances was compatible with Article 8.

1. The court declared the policy unlawful. The policy was capable of interfering with an Article 8 right, pursued a legitimate aim, and had to be capable of proportionate application. The Secretary of State retained a margin of appreciation, but that margin could not extend to denial of a Convention right.

2. A rigorous assessment of fees and financial evidence was permissible. Applicants could be required to prove their financial circumstances, and clear objective guidance was desirable to promote transparency, consistency and fairness.

3. The policy nevertheless contained a serious internal inconsistency. Applicants receiving asylum support were treated as destitute and qualified for a waiver, although the support itself provided accommodation and essential needs. Applicants outside that scheme could be no better off financially yet receive only discretionary consideration.

4. The court rejected the submission that Omar v Secretary of State for the Home Department [2012] EWHC 3448 (Admin) was confined to persons receiving asylum support. Where an applicant properly proves that they cannot pay the fee, a policy which provides no waiver in those circumstances is incompatible with a Convention right.

5. The exceptional-circumstances provision did not cure the defect. The policy and application form appeared to confine that provision and did not clearly explain that inability to pay the fee, even where the applicant was not technically destitute, could justify a waiver.

6. The claimant was not destitute under the policy, but the refusal had been based solely on the unlawful destitution criteria. He was therefore entitled to reconsideration by the Secretary of State. The court did not itself determine whether he could afford the fee.

7. Permission to appeal was granted and execution of the judgment was stayed pending the Court of Appeal’s determination.

The judgment records no prior merits decision determining the claim. The claimant’s proceedings had been stayed by consent pending a further fee-waiver application. Limited permission to bring judicial review proceedings was granted by Judge Stephen Davies on 27 February 2014.

Permission to appeal to the Court of Appeal was granted, and execution of the judgment was stayed pending determination of the appeal.