fee waiver

The recent CPH judgment could have important implications for children (under 18s) who are eligible for indefinite leave to remain (‘ILR’) but cannot afford the high application fee (recently raised to £3,029).

Home Office fees have been increasing significantly over recent years and, as a result, have become unaffordable for many families. While it is possible to apply for a fee waiver if you cannot afford the fees for a limited leave to remain application, this is not available for indefinite leave applications. However, in CPH, the Home Office acknowledged the possibility of applicants being considered for grants of indefinite leave ‘outside of the Rules’ without a fee being paid.

CPH is a child who was born in the UK and had resided here continuously for more than seven years. As such, as long as it could be shown that it would not be reasonable for the child to leave the UK and there were no suitability issues, CPH qualified for indefinite leave under the rules set out in Appendix Private Life. However, although CPH had been granted a fee waiver for a leave to remain application, (because none was available for indefinite leave) his application for ILR was rejected on the basis that he had not paid the correct fee. It was also considered – and refused – outside of the Rules on a discretionary basis, taking into account the restrictive guidance contained in Family Policy: Family life (as a partner or parent) and exceptional circumstances (‘the Family Policy’), which allows for exceptional grants of indefinite leave outside of the Rules.

CPH’s representatives challenged the Home Office decision as well as the legislative and policy framework. Section 55 of the Borders, Citizenship and Immigration Act 2009 (‘s55’) sets out that the functions of the Secretary of State must be discharged with regard to the need to safeguard and promote the welfare of children in the UK. It imposes a duty to treat the best interests of the child as a primary consideration in, for instance, immigration decision-making or related guidance. Decision-makers must also demonstrate that the best interest of the child has been balanced against any countervailing priorities in reaching a decision. CPH was successful in arguing that the decision was unlawful because the Home Office had failed to properly consider the s55 duty to safeguard and promote the welfare of children, and that the Family Policy guidance itself was unlawful because it did not comply with the s55 duty.

The Home Office has sought to appeal the judgment but, if the decision is upheld at appeal, they will need to revise its Family Policy guidance on grants of indefinite leave outside of the Rules and make a new decision for CPH. Alternatively, we would hope the Home Office also considers implementing a fee waiver policy for indefinite leave applications, thereby reducing the need for complex consideration of straightforward cases outside of the Rules.

This judgment also serves as a reminder that the best interests of the child is a mandatory and primary consideration that must be adequately applied in all immigration decisions affecting children, and highlights that “in many (if not most) cases, a grant of ILR is more likely to serve the best interests of a child than a grant of limited leave to remain”.

On 13 July 2023, the government announced that it is going to introduce a massive increase to the cost of immigration applications and the Immigration Health Surcharge (IHS). The government stated, and the Home Secretary confirmed, that the reason for these increases is to cover pay-rises for certain public sector workers. It is not clear what the connection is between visa application fees and public sector pay, nor whether it is even lawful to increase fees on this basis.

We still do not know when these increases will be introduced, although we expect it to be at some point in the autumn. The exact figures have not been announced, but we know that the cost of work and visit visas will increase by 15%, while the fees will increase by 20% for most other visas. The IHS will be increasing from £624 per year to £1,035 per year.

This is a staggering hike in the cost of applying for visas and leave to remain. The cost of the IHS, in particular, has increased exponentially. As recently as the start of January 2019, the IHS cost £200 per year, meaning that in less than five years the cost will have increased more than fivefold.

These increases place migrants already in the United Kingdom in a very difficult position. An applicant who applied in-country for a partner visa on March 2017 would have paid a total of £1,311: £811 for the application fee and £500 for the IHS. Assuming this person is applying to extend on the 10-year route to settlement, their next application looks set to cost them more than £3,845. The overall cost to families with more than one applicant, especially on visas such as the Skilled Worker or Global Talent routes where they may apply for five years at a time, will be eye-watering.

Who needs to act now?

Migrants who already have leave to remain will, for the most part, need to wait until near to where their leave is expiring before applying for further leave. Whether they will have to pay these higher fees will simply be a matter of when they are able to make that next application.

However, there will be people who can take action now to apply under the current fees. Overstayers looking to regularise their status, or applicants with valid leave looking to switch into a different visa category, would be well advised to apply as soon as possible. Those looking to apply on routes which require a prior endorsement, such as Global Talent and Innovator Founder, should take steps as soon as possible to apply for that endorsement. On the Global Talent route, it is possible to apply for the endorsement and leave to remain simultaneously, which may be worth the gamble to avoid paying higher fees.

What if you cannot afford the fees?

Migrants looking to apply for leave based on their human rights (in particular, those applying as a partner or a parent) may be eligible for a fee waiver. To be eligible for a fee waiver, an applicant simply needs to show that they cannot afford the application fees, or that if they did pay for the fees then they would not be able to afford their essential livings costs and/or doing so would harm their child’s wellbeing.

A likely side-effect to these increased fees will be that a large group of applicants will become eligible for a fee waiver on the basis that they cannot afford the new fees (but may have been able to save up to afford the current fees).

Conclusion

If you would like assistance applying for leave before the fees increase, or need advice on your eligibility for a fee waiver, feel free to make an enquiry.

Child ILR applications

Home Office announces steep application fee increases