Augustina Afi Dzineku-Liggison, R (on the application of) v The Secretary of State for the Home Department

A fee-waiver policy for a human-rights application must direct decision makers to the overriding question of whether the applicant can in reality afford the fee. Current or prospective destitution may be relevant, but it is only a subset of that wider affordability inquiry.

A policy is unlawful if its structure and language obscure affordability and impose an additional requirement to show exceptional circumstances on an applicant who is unable to pay but is not destitute. A decision made under such a policy is also unlawful where it fails rationally to engage with evidence showing that the applicant cannot raise the fee.

The possibility that an unconsidered human-rights claim may prevent removal does not cure the unlawful refusal of a fee waiver or justify leaving applicants indefinitely without consideration of their leave applications.

The applicants, a Ghanaian family including three children, sought leave to remain on Article 8 grounds. They applied for a waiver of application fees and the Immigration Health Surcharge totalling £7,665. The Secretary of State refused the waiver, treated their leave applications as invalid, and relied on Fee Waiver: Human Rights-Based and other specified applications, version 3.0.

By judicial review, the applicants challenged both the individual decision and the lawfulness of the guidance. They contended that the governing question was whether they could afford the fee, rather than whether they were destitute, would become destitute, or had exceptional financial circumstances. The Secretary of State also submitted that the family had made a human-rights claim which would be considered before removal.

The central issue was whether version 3 lawfully implemented the affordability test derived from R (Omar) v SSHD [2012] EWHC 3448 (Admin) and R (Carter) v SSHD [2014] EWHC 2603 (Admin).

1. The claim succeeded. Version 3 of the fee-waiver guidance was unlawful, and the refusal made under it was unlawful.

2. The settled and accepted test was whether an applicant could afford the fee in reality. Being destitute, or becoming destitute on payment, were relevant categories within that test. They were not exhaustive conditions of eligibility. A person who can prove an inability to obtain the money required must be eligible for a waiver, even if not destitute.

3. The guidance did not adequately state that overriding affordability test. Its introductory structure was confused, its repeated focus on destitution obscured the wider inquiry, and its third stage imposed an impermissible exceptional-circumstances hurdle. A reasonable and literate reader would understand that inability to pay alone was insufficient, contrary to R (Omar) v SSHD [2012] EWHC 3448 (Admin) and R (Carter) v SSHD [2014] EWHC 2603 (Admin).

4. The individual decision reflected those defects. It concentrated on destitution and demanded evidence that the applicants could not borrow from possible supporters, rather than assessing the evidence actually supplied. On any rational view, the evidence showed that this family, living on charity and without meaningful savings or income, could not raise nearly £8,000 from its own resources.

5. The Secretary of State could scrutinise waiver applications carefully. But the possibility that an applicant has made a human-rights claim which must be considered before removal did not answer the challenge. It left the family in an uncertain and restrictive position without consideration of their applications. That was especially material to the statutory duty under Borders, Citizenship and Immigration Act 2009, section 55, concerning the welfare of the children.

6. Permission to appeal was granted because of the important points of principle and the effect on the fee-waiver system. The Secretary of State later confirmed that she would not lodge an appellant's notice, and the suspension of the decision ended.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review claim allowed. The Tribunal held version 3 of the fee-waiver guidance and the refusal decision unlawful. Permission to appeal was granted, but the Secretary of State did not pursue an appeal.