Upper Tribunal (Immigration and asylum chamber), 2020-05-21, JR/02249/2019
| Jurisdiction | UK Non-devolved |
| Date | 21 May 2020 |
| Published date | 04 June 2020 |
| Hearing Date | 20 May 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/02249/2019 |
[L & Others] v SSHD JR/2249/2019
Case No: JR/2249/2019
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
20 May 2020
Before:
UPPER TRIBUNAL JUDGE BLUNDELL
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Between:
THE QUEEN
on the application of
(1) [A L]
(2) [M A]
(3) [J K A]
(4) [J A]
(5) [M N A]
Applicants
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Alasdair Mackenzie
(instructed by Duncan Lewis), for the Applicants
Sir James Eadie QC and Zane Malik
(instructed by the Government Legal Department) for the Respondent
Hearing date: 2 March 2020
Additional written submissions filed on 9 April 2020
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J U D G M E N T
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This judgment was handed down remotely by circulation
to the parties’ representatives by email at 4pm on 20 May 2020.
Judge Blundell:
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The applicants are Ghanaian nationals. The first and second applicants are the parents of the third, fourth and fifth applicants, who are twin sons aged nine and a daughter aged 5. By a claim form which was issued on 25 April 2019, they sought judicial review of a decision made by the respondent on 25 January 2019, refusing their applications for a fee waiver and therefore treating their applications for leave to remain as invalid. The applicants submit that the refusal of the fee waiver application was unlawful and that the respondent’s extant published policy on such applications – Fee Waiver: Human Rights-based and other specified applications, version 3.0 (dated 4 January 2019) - is itself unlawful.
Factual Background
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The first applicant entered the United Kingdom at some point in 2006. She held entry clearance as a Working Holiday Maker. The leave to enter which was conferred by her entry clearance was valid until 2008, after which she overstayed.
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The second applicant also entered the United Kingdom as a Working Holiday Maker. He entered on 24 May 2005 and held leave to enter in that capacity until May 2007. On application, his leave was extended until 21 November 2007. Upon the expiry of that period of leave to remain, he also overstayed.
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The third, fourth and fifth applicants were born in the United Kingdom on 15 June 2010 and 14 July 2014 respectively.
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On 22 December 2018, the applicants applied for leave to remain on Article 8 ECHR grounds. Their applications were made with the assistance of a firm of representatives, the Refugee and Migrant Forum of Essex and London (“RAMFEL”). The FLR (FP) application form was accompanied by a detailed covering letter from RAMFEL and a volume of supporting evidence. It was submitted, in summary, that it would be a breach of Article 8 ECHR to remove the family from the United Kingdom. Reliance was particularly placed on the best interests of the children and it was submitted that the older two children had lived in the United Kingdom for more than seven years and that it would not be reasonable to expect them to leave (paragraph 276ADE(1)(iv) of the Immigration Rules refers).
Application for Fee Waiver
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The letter from RAMFEL also contained a section about the applicants’ ability to pay the fees for the applications, which totalled £7665, including the Immigration Health Surcharge. That section of the letter was in the following terms:
Despite this positive contribution though, our client and Mr [A] have struggled desperately due to their inability to work and provide for their children. Their church have supported them with intermittent financial support and provided food and clothing, but as they confirm in their supporting statements they cannot assist the family with the fees for this application.
Aside from support from friends, amounting to no more than relatively small cash donations, the family have no regular source of income and depend on the food bank run by the organisation representing them in this application. They are also not paying for legal advice and RAMFEL are acting pro-bono in this matter.
The family currently reside at […]. This accommodation is provided by a family friend and the family make irregular payments only rather than paying consistent rent. They previously resided at […] and Mr [A]’s bank statements are still addressed here as he has yet to update his details with the bank.
It is submitted that there is no prospect of the family raising the funds for this application - £7665 with the Immigration Health Surcharge – within the foreseeable future, ie 12 months and on this basis a fee waiver should be granted. Account statements for all bank accounts held by the family, as well as credit cards held by our client, are enclosed. Our client has a savings account and an ISA with Barclays, but she does not receive statements for these accounts. However, her current account statements show that the balance for her savings account has remained consistently at £0.00 whilst the ISA’s balance stands at £0.01. It is clear that our client and her partner have no meaningful income, and it is repeated that there is no prospect of them raising the funds for this application.
In summary, it is submitted that our client qualifies for a fee waiver due to her inability to raise the funds for this application…
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Also submitted to the respondent with Form FLR(FP) was a completed Appendix 1: Request for a Fee Waiver. The rubric at the start of that form included sections in the following terms:
You should only complete this form if you are seeking a fee waiver because you think you meet the published fee waiver policy. This will be because you are destitute, or because you would become destitute if you paid the fee (in respect of your own application or one or more of your dependants included in the application), or because there are exceptional circumstances relating to your financial circumstances which mean that you are unable to pay the fee for your application (or for that of one or more of your dependants).
[…]
The decision on whether you qualify for a fee waiver will be made on the basis of the information you provide in this form and the evidence submitted with it. It is your responsibility to provide sufficient information and evidence to demonstrate that you qualify for a fee waiver.
You will need to provide documentary evidence with this fee waiver application to demonstrate your financial circumstances. The nature of this evidence will vary according to your individual circumstances, but some examples of relevant documents you may wish to include are listed below.
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There then followed a list of the types of evidence which might support the application for a fee waiver. The applicants indicated that they were submitting four types of evidence: bank statements covering the period of six months prior to the application; savings accounts statements for the same period; letters from a registered charity or Local Authority confirming receipt of support; and other documents (as described in RAMFEL’s covering letter).
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In section 1 of the application form, the applicants left unchecked a box next to the statement ‘I am destitute’. They checked the box next to the statement ‘I am not destitute but I would become destitute if I paid the application fee’. Also checked was the box next to the following statement:
I am not destitute and would not become destitute if I paid the application fee, but I have exceptional circumstances relating to my financial circumstances which mean I am unable to pay the fee for my own application and all of the dependants included in the application.
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In the section of the form which asked for an explanation of the answers to those questions, the applicants’ solicitor had placed a stamp which stated “See cover letter”, referring to the letter from which I have quoted above. The form was filled out with various other details. At section...
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