It hardly needs to be said that visa applications are expensive, and rising. There is the visa application fee itself (in many cases over £1,000) and also the IHS health surcharge fee (also typically over £1,000), and for some applicants finding the fees is a struggle, or impossible.
In some cases, if the visa applicant is applying in the UK, they can apply for a fee waiver (but not if they are applying for entry clearance from outside the UK). The fee waiver application, if successful, can cover both the application fee and the health surcharge.
But only applicants who are making what is deemed to be a “human rights-based application” are eligible to apply, the list for which is as follows:
- applications for leave to remain under the five-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 are relying on the “adequate maintenance” rule
- applications for leave to remain under the five-year parent route
- applications for leave to remain under the ten-year partner, parent or private life route
- 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
- 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
Most of these categories are clear in meaning, but item 4 (“applications for leave to remain on the basis of other ECHR rights”) is vague. We do know that applications based on Article 3 of the European Convention on Human Rights (which relates inhuman or degrading treatment) can qualify, but we wonder whether an application for, for example, leave to remain on the basis of ten years’ continuous lawful residence – which by implication relies on human rights private life principles – might qualify, but this is not clear.
In any event, applications for settlement cannot attract a fee waiver.
The fee waiver application should be made before the visa application is made. If the fee waiver application has not been processed by the time any existing visa expires immigration leave will be automatically extended until the decision is made, after which the migrant has ten working days to submit the application, whatever the result of the fee waiver application.
If the applicant does not hold immigration leave then there is no ten-day rule.
The fee waiver applicant has to provide details of their financial circumstances, so that the Home Office can assess whether they are sufficiently compelling for the waiver to be granted. The applicant must show that they cannot afford the visa application fees.
In an extreme case, if an applicant can show that they are destitute or at risk of becoming destitute, then the application should be successful, but it is not necessary to show this in order to succeed. If you can show that you cannot realistically afford the visa fees you can also succeed. And where there are children involved the application in some cases could be stronger.
So far so good, but there is one potential problem with fee waiver applications: the Home Office published instructions (to its own caseworkers) is not entirely consistent and is not entirely in accordance with established law. If you make such an application it might be a good idea to write a cover letter (or get your immigration lawyer to write one) so that this can be explained to the Home Office.
If you need assistance in this area we at GSN Immigration can help you.
OISC Level 3 Immigration Lawyer