The SSHD’s approach to waiving human rights application fees was limited to those who were literally destitute. This presented an obstacle to people who were overstayers, with limited financial support from family or friends, to applying for leave to remain in the UK based on their Human Rights because they were not considered destitute.
Those who were not destitute but did not have sufficient financial resources, had to find some way to pay the relevant fees, which often meant getting themselves into debt. A case called R (Carter) v Secretary of State for the Home Department, found here
, disagreed with this approach.
The court decided that if the entitlement to getting a fee waiver is seen by the SSHD as being limited to people who are actually destitute, that’s unlawful. If the SSHD decides not to waive the fee, then this should be challenged.
The SSHD issued the following news article today: ‘Fee waiver applications for FLR(O) and FLR (FP): information for applicants
Updated 3 December 2014
The Home Office is reviewing its fee waiver policy in light of the judgment of the Administrative Court in the case of R (Carter) v Secretary of State for the Home Department  EWHC 2603 (Admin). The Home Office’s appeal to the Court of Appeal against that judgment has been withdrawn.
The previous policy has been withdrawn. Until a new policy is published, the Home Office will use interim arrangements, so that applicants who would have met the requirements under the previous policy will continue to be granted a fee waiver.
Applicants who would not have qualified for a fee waiver under the previous policy will have their applications placed temporarily on hold. We expect the new policy to be published by spring 2015.
This means that:
1. Applications for a fee waiver can continue to be submitted on the Appendix 1 FLR(FP) FLR(O) form and will be considered.
2. Applications which meet the terms of the previous policy will be given a fee waiver and their FLR(O) or FLR(FP) form will go on to be considered in the usual way.
3. Applications for a fee waiver which do not meet the terms of the previous policy and which would have fallen to be refused will be on hold until the revised policy is announced. They will then be considered under the terms of the revised policy. In the meantime, applicants may write to us with any additional evidence that they meet the terms of the previous fee waiver policy.
4. Alternatively, applicants may choose to apply again on an FLR(FP) or FLR(O) form along with the appropriate fee.
5. Once the revised policy is announced we intend to review all fee waiver applications on hold based on the new policy, and any further evidence submitted, and give applicants a final decision on their application.’
This issue is likely to proceed to the Court of Appeal.