Applying for a Home Office fee waiver

In this note we consider who may be able to apply to the Home Office for a waiver of visa application and Immigration Health Charge fees.

In summary, if you facing a bill for visa fees that you cannot afford, and are considering borrowing this money in order to extend your stay in the UK, it may be worth considering an application for a fee waiver. This note covers the following:

• Background

• What is a fee waiver?

• In which applications will it apply?

• Who is eligible to apply for a fee waiver?

  • 'Not able to pay the fee'

    • How much can an applicant be expected to save?
    • Can an applicant be expected to borrow?
    • Guarding against ‘disposal’ of funds
    • What does the ‘affordability test’ look like in practice?
    • Conclusion on ‘affordability’

  • ​Destitution

  • Exceptional financial circumstance

• When should I apply for the fee waiver?

• How can I apply for a fee waiver?

• What evidence should be supplied?

• When will an application be decided?

• What happens if a fee waiver request is refused?

Background

The approach of the Home Office to fee waiver applications has undergone a significant change recently.

The main change has been a move away from a requirement to show actual or imminent ‘destitution’ or exceptional circumstances, towards an assessment of ‘affordability’.

The key test is whether, in reality, an applicant is able to afford the fee (including both the visa application fee and the Immigration Health Surcharge).

This was recently confirmed in the case of Liggison v SSHD JR/2249/2019, which found that the Home Office approach to consideration of fee waiver applications in the past had been flawed.

New Home Office guidance was published on 18 June 2020, making clear that the ‘affordability test’ is the correct one.

Given the massive hikes in the costs of making immigration applications over the last several years, this should mean that many more applicants are eligible to apply for a waiver.

What is a fee waiver?

Where applicants are not able to pay all or some of the fee required when making an immigration application, they can qualify for a total or partial fee waiver, covering the visa fee and/or the Immigration Health Surcharge.

If granted a fee waiver, a Unique Reference Number is issued for use in the applicant’s substantive online visa application.

The substantive application must be submitted within 10 working days of the date of the fee waiver decision, and the applicant must then make an appointment to provide their biometrics within a required timeframe.

In which applications will it apply?

Applicants making applications in the following routes will be eligible to apply for a fee waiver:

• applications for leave to remain under the 5-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance
• applications for leave to remain under the 5-year parent route
• applications for leave to remain under the 10-year partner, parent or private life route, where the applicant claims that refusal of that application for leave to remain would breach their rights (or the rights of other specified persons) under ECHR Article 8 (the right to respect for private and family life)
• applications for leave to remain on the basis of other ECHR rights
• applications for further leave to remain from applicants granted discretionary leave (DL) following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further leave to remain would breach their ECHR rights
• applications for further DL from victims of trafficking or slavery who have had a positive conclusive grounds decision from a competent authority of the national referral mechanism (NRM), have already accrued 30 months’ DL and are seeking to extend it for reasons related to trafficking or slavery

The Home Office makes clear in its guidance that in all of the above routes, parents do not have to have requested a fee waiver in order for their children to be eligible to apply for a fee waiver.

Who is eligible to apply for a fee waiver?

Individuals in the following circumstances may be eligible to apply for a fee waiver:

• they are not able to pay the fee
• they are destitute, or at risk of imminent destitution
• their income is not sufficient to meet a child’s particular and additional needs
• they are faced with exceptional financial circumstances

Whether or not an individual applicant and/or their family member(s) meets these criteria will be an intensely fact-specific exercise.

'Not able to pay the fee'

This criterion has recently been added to guidance, whereas previously an applicant would need to have met the (high) threshold of destitution or imminent destitution, or exceptional financial circumstances.

Although those criteria remain in place, the guidance is now clearer in confirming the correct test: that an applicant must simply show that they are not able to afford to pay the fee.

No guidance has been provided in the updated policy on what exactly this means.

How much can an applicant be expected to save?

However, the Home Office guidance does make clear that, where an individual could reasonably have been expected to save towards an application fee from disposable income, they will be expected to have done so.

So declares the Home Office in its updated guidance, if an applicant has behaved – in their spending habits – with ‘blatant disregard for the public purse in leaving him or herself without the means to meet foreseeable expenditure’ then the application may be refused.

It is difficult to know exactly what this means in practice, although individuals should certainly prepare to have their spending decisions scrutinised in the event that they apply for a fee waiver.

Can an applicant be expected to borrow?

In the Home Office’s previous guidance, it was considered legitimate to require an applicant to raise the funds required for an application via a bank loan or other credit facility.

The guidance previously required applicants to establish by evidence that they were unable to secure a loan from one or more individuals (or banking institutions).

However, the possibility of borrowing the money for the application in this way was criticised in the decision of Liggison (paragraph 95):

The briefest consideration of that requirement reveals how it would, in practice, be practically impossible to prove. Since the sources of potential charity are infinite, so too are the potential sources of evidence. … The difficulty in proving this particular negative is writ large.

It would presumably be useful evidence, in any event, to show either (i) that attempts had been made to obtain a loan from one or more financial institutions which had been refused, or (ii) that had been accepted but on repayment terms which would be unaffordable based on the applicant and/or their family’s proven past and likely future income.

However, it should be emphasised that this does any longer appear to be a requirement of the fee waiver application process.

Guarding against ‘disposal’ of funds

The updated guidance instructs caseworkers to consider whether the applicant has intentionally disposed of funds.

Some of the circumstances which are considered to be ‘disposing’ of funds can be legitimately seen as intended to guard against abuse of the waiver policy, such as providing support or loans to others, or voluntarily giving funds away to a third party.

However, other listed circumstances, such as ‘paying debts before they are required to do so, or paying more in response to a debt than is required’ seem to go some way beyond this, and steps which in other contexts might be considered as sound management of personal finances.

The guidance also considers that ‘buying a personal possession that is clearly not essential to their living needs or spending extravagantly’ could be considered as ‘disposal’ of funds, which is clearly something of a subjective exercise.

Applicants making applications on this basis should expect intense scrutiny of their financial histories, and will likely be expected to justify any significant purchases in the last visa period when they should (according to the Home Office) have been saving all of their pennies for their extension application.

What does the ‘affordability test’ look like in practice?

To take an example, a family of four (applicant and three dependants) on the 10 year route will currently be required to pay £8,132 in visa and Immigration Health Surcharge fees at the point they renew their visas every 30 months.

There is a pretty clear expectation in the guidance that if any disposable income earned during the visa period should be put aside to meet the renewal fees:

the applicant will need to provide relevant evidence of their income and expenditure so that their disposable income can be calculated. Caseworkers will need to use their judgement in assessing the applicant’s evidence of income and expenditure to determine whether this goes beyond essential living needs and can only be regarded as extravagant in relation to their circumstances and obligations, including fee payments

Leaving aside the legality of this requirement, what if you can show clear evidence that, whether or not the family had saved all of its disposable income or not, it would not have been in a position to meet the fees required for the application?

Working through the example above, a family with a disposable income below £270 per month over a 30 month visa period should, in theory, qualify as being unable to pay the full fee and may be entitled to a full or partial waiver depending on the circumstances.

Conclusion on ‘affordability’

If you are facing a bill for visa fees that you cannot afford, and are considering borrowing money in order to making an extension, it may be worth investigating your eligibility for a fee waiver application.

We are happy to received enquiries for individuals considering this option to discuss the support we might provide.

Destitution

An applicant claiming to be destitute will need to provide evidence that they are destitute. Caseworkers are prompted by the Home Office guidance to have in mind that:

• those who already have limited leave to remain will normally be entitled to work in the UK. There should normally be evidence of working, or seeking employment, or reasons why this is not possible
• where the applicant is applying for leave under the 10-year partner route, their partner will be a British citizen or settled in the UK and will have access to work and to any public funds for which they qualify. It is therefore unlikely that the applicant will be destitute. In these circumstances the applicant should provide an explanation of why their partner’s income is insufficient to be able to support them
• where the applicant is applying for the private life route, they will generally have lived in the UK for a significant period. To show that they are currently destitute the applicant will have to explain how they have previously supported themselves in the UK and why their previous means of support are no longer available to them
• if a person has been without any formal or obvious means of support (such as income from employment or local authority support) for a prolonged period, it may be reasonable for the caseworker to assume that the person has had, and may continue to have, access to an alternative form of support (for example, income from overseas or from a relative or friend), unless the applicant provides evidence that this is not the case or that their circumstances have changed and that they are now without any means of support

Given the acknowledgment in the updated guidance that the correct test is whether an applicant can afford the fee, rather than whether or not they could be described as destitute, it is not clear what role these considerations should continue to play in the assessment of an applicant’s means.

Exceptional circumstances

The Home Office may grant a fee waiver where there are exceptional circumstances affecting an applicant’s expenditure, income, or financial circumstances. An example is given in the guidance where an applicant

is not destitute and would not be rendered destitute by paying the fee but cannot afford to pay it because, in relation to their income, they incur significant additional expenditure to provide for a child’s well-being needs. This does not mean discretionary items, but it does mean substantial items such as travel to special needs facilities, or expenses linked to responding to illness, or long term health conditions or disability

The guidance goes on to state that:

A decision on whether there are exceptional circumstances should be made on a case-by-case basis, taking into account the applicant’s individual circumstances and those of any dependent family member and all the information and evidence the applicant provides in support of their fee waiver request.

Again, as with the guidance relating to destitution, circumstances such as these are likely to be relevant in any ‘affordability’ assessment.

When should I apply for the fee waiver?

Applications for a fee waiver should be made before the expiry of leave. As it states in the introduction to the online application:

If you make a fee waiver request before your current leave expires, and then you make an application for leave to remain, the date of that application will be the date you submitted the fee waiver request.

This will therefore serve to extend leave under section 3C Immigration Act 1971, in the same way as if the substantive visa application itself had been made in-time. This means that, however long it takes for the Home Office to make a decision on the fee waiver application, the applicant’s conditions of leave (e.g. right to reside, work in the UK etc) should continue in place until the decision is made. As confirmed in the guidance:

Requests for a fee waiver made by those who have current Leave to Remain, and whose leave expires whilst their fee waiver request is being considered, will be allowed 10 days from the actual date of their fee waiver decision to submit an application for Leave to Remain or Further Leave to Remain. After this, their leave will be treated as expired.

If leave has expired before an applicant made the fee waiver application, the position is slightly different:

If you make a fee waiver request and you have no leave or your current leave has expired and then submit an application for leave to remain, the date of application will be the date you submit that application for leave to remain, not the date you submitted the fee waiver request.

If the fee waiver application is refused, applicants should be given 10 working days in which to make the substantive visa application and pay the required fee, in order to maintain s3C leave and not break the continuous period.

How can I apply for a fee waiver?

Applicants will need to complete the online application form, indicating that they are requesting a fee waiver.

The application for the fee waiver is free.

Applicants should expect to provide detailed responses to questions regarding their financial circumstances.

What evidence should be supplied?

As it states in the guidance, caseworkers should normally expect to see

information and evidence relating to the applicant’s income, their accommodation, the type and adequacy of this, and the amount of their rent/ mortgage or of their contribution towards this, and their outgoings in terms of spending on things like food, utility bills.

This information should be supported by independent evidence, such as their pay slips, bank statements, tenancy agreement, utility bills. The nature of the evidence provided will vary depending on the individual circumstances of the applicant, but the caseworker should expect to see evidence appropriate to the circumstances that are being claimed

Where support is being provided by family or friends, a local authority or a registered charity

the caseworker should expect to see corroborating documentary evidence confirming provision of support and detailing the nature and amount of the support provided. In all cases evidence must be up-to-date.

The Home Office has provided some welcome guidance on evidential flexibility in its latest policy iteration:

Whilst the onus is on the applicant to provide sufficient evidence for the fee waiver to be granted there will be some cases where providing evidence is more difficult than in others

It may be useful to provide a statement outlining the situation, and which can sometimes helpfully guide decision makers to the relevant evidence. The guidance again gives a flavour of the types of questions decision-makers may be asking themselves when considering a fee-waiver application:

… if an applicant was in possession of sufficient funds for their support when they applied for a visa to come to the UK, but at a subsequent LTR stage presents themselves as destitute, claiming to have used all their funds and to have not been able to replenish them, then some further account is likely to be needed as to why this has happened.

Similarly, those applicants with significant fluctuations in income should be expected to account for this, and also to provide an account of how payments for regular outgoings are maintained despite these fluctuations. Applicants who intentionally deprive themselves of capital in order to avoid paying an application fee should normally be refused a fee waiver on the basis that they may be able to recover their funds

The guidance makes clear that applicants will be expected to provide bank statements covering the 6 month period prior to the date of application for all bank or building society accounts they hold, and a full breakdown of their monthly income and expenditure at the time of application, and that verification checks will be made with other government departments, such as HM Revenue & Customs, and the Department for Work and Pensions.

Failure to provide full details of financial circumstances, the guidance warns, may result in enforcement action.

When will an application be decided?

The guidance states that there are no service standards in fee waiver applications (i.e. timeframes in which an application must be decided).

However, caseworkers must make reasonable efforts to decide applications requests promptly, especially those involving a child or an applicant who is street homeless, disabled or otherwise in vulnerable circumstances.

What happens if a fee waiver request is refused?

If the caseworker is not satisfied the applicant qualifies for a fee waiver then:

• if the applicant made their request for a fee waiver in time (for example they had valid leave on the date their application was submitted), they should normally be advised that they do not qualify for a fee waiver and that they should submit the additional evidence requested that demonstrates they qualify for a fee waiver. They must, within 10 working days submit additional evidence that demonstrates they qualify for a fee waiver
• if additional evidence is provided within that period that demonstrates the applicant qualifies for a fee waiver the applicant is issued with a fee waiver token that enables them to apply for a free immigration application. The applicant has 10 working days to make an LTR application to retain 3C leave
• if the applicant provides further evidence within 10 working days but this does not demonstrate that they qualify for a fee waiver, the application should be rejected as invalid. If no further evidence is provided within 10 working days, the application should be rejected as invalid. The applicant has 10 working days to make a paid LTR application to retain 3C leave. If a paid application is not made within 10 working days, the applicants 3C leave will expire
• if the applicant had no valid leave at the date of application, they should normally be advised that they do not qualify for a fee waiver. In order to have their immigration application considered, the applicant would need to apply with the specified fee or make a new application for a fee waiver

Main image credit: Photo by Fabian Blank on Unsplash