09 OCT 2014
Queen’s Bench Division, Administrative Court, Dingemans J
Carter v Secretary of State for the Home Department  EWHC 2603 (Admin); (2014) PLLR 088
29 July 2014
The Destitution Fee Waiver policy is unlawful due to its failure to waive fees for destitute individuals with actual Article 8 rights.
Article continues below...
(1) The claimant was granted limited permission to seek review of whether the defendant’s decision to refuse to waive his application fee on Form FLR(O) gave rise to a breach of Article 8 ECHR.
(2) The claimant is a 22-year-old Jamaican national in the UK without leave, having entered as a 7-year-old child as a visitor. He has lived with his grandmother, who has indefinite leave to remain, since that time and attended schools.
(3) In 2009, he was convicted of burglary. In 2012, he sought to regularise his status, applying for further leave to remain on the basis of his Article 8 rights. He stated that he was exempt from the accompanying fee as a result of being dependent on his grandmother whose sole income was her state pension. His application was rejected due to non-payment of the fee. On 31 October 2012, judicial review proceedings were issued. A stay was granted pending the appeal in Omar v Secretary of State for the Home Department  EWHC 3448; the defendant subsequently withdrew her appeal in that matter.
(4) On 22 July 2013, a consent order was made in the claimant’s case whereby the parties agreed to stay proceedings pending the claimant’s submission of a further application to be considered under the new Destitution Fee Waiver policy.
(5) The claimant’s application for a fee waiver was rejected because he was not considered destitute and the defendant did not find any exceptional circumstances. A person would only be found to be destitute if he lacked adequate accommodation or any means of obtaining it, or had accommodation but could not meet his other essential living needs.
(6) The judicial review was refused on paper, but with the limited permission granted for the question above. The claimant’s submission was that he could not afford the fee, and regardless of whether he qualifies under the policy, his Article 8 rights are breached. His funds fall well below the single person allowance for income support and the defendant’s refusal to process the claimant’s application to regularise his status is an ongoing breach of Article 8, despite the fact that he is not subject to removal proceedings. Failing to have a regularised status precludes him from many steps, such as work and educational opportunities, which would allow him to develop as a person.
(7) Both parties agree that the policy has the potential to interfere with a person’s Article 8 rights, and that it pursues a legitimate aim. The key difference was whether the policy was being applied in a proportionate way.
(8) HELD: Informed by Omar, the court found that the Destitution Fee Waiver policy is unlawful. Refusing to waive the application fee based on the destitution criteria and exceptional circumstances (as described in paragraph 7 of the 2013 Directions) is incompatible with the Article 8 rights of people such as the claimant, who are within the jurisdiction and have an arguable private/family life within Article 8(1) ECHR.
(9) The court did not find R(Shueb Sheikh) v SSHD  EWHC 3390 (Admin) to be helpful, as it concerned only potential Article 8 rights rather than actual rights, among other factors.
(10) The court found an internal inconsistency in the fee waiver policy, which was waived in the case of destitute individuals receiving NASS support but not to people with identical financial situations who, by virtue of their status, could not apply for NASS support. The existence of an exceptional circumstances provision did not operate to correct this problem, and was discretionary in any event. The court found that the Omar holding was not so limited as to only apply to those in receipt of NASS support, but also to those who demonstrated on proper proof that they could not pay the application fee.
(11) The court found the policy to be unlawful, and as the decision in the instant case was based on an unlawful policy, the claimant is entitled to reconsideration by the defendant.
(12) The parties were granted leave to appeal the decision and granted a stay.
 – Destitution fee waiver
 – Destitution policies
 – Exceptional circumstances
 – Unlawful policy
 - Conclusion
 – Appeal and stay