The correct test for fee waiver applications
In the recent case of R (Dzineku-Liggison & Ors) v Secretary of State for the Home Department (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC), The upper tribunal has ruled that the correct test for fee waiver application would be affordability and NOT destitution or immediate destitution.
Even though there were previous cases such as R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin). And R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin) and In these previous cases courts gave similar rulings but unfortunately, Home office guidance did not pay much attention to these cases and continued to apply “destitution” test rather than “affordability”
What is the difference and who can apply?
Fee exemption applications are only open to those applicants who are either making a human right claim or human rights claim makes a substantial part of their case.
Home office guidance now includes the criteria where applicant/s
- cannot afford the fee
- are destitute
- are at risk of imminent destitution
- Their income is not sufficient to meet a child’s particular and essential additional needs
Unfortunately, previous home office guidance did not include affordability as a criterion and as long as someone had a place to live and essential needs such as food as met, it was very difficult to meet the destitution criteria. Of course, destitution or immediate destitution is still one of the criteria but with an addition of affordability criteria in the guidance obtaining a fee waiver is a lot easier for those who may have a place to live and food to eat but did not have enough money to pay the application fee and health surcharge. For more details and to find out how surplus income is calculated please refer to page 3 of the fee waiver guidance through the link.
Our team of experts have been successful in obtaining fee exemption for many of our deserving clients under the new guidance. For a free assessment of your case please contact us and we are happy to help.
