The Home Office has been forced to admit that its policy on UK visa fee waivers is unlawful. Under current rules, visa applicants from outside the UK only qualify for a visa fee waiver in ‘exceptional circumstances’, including civil war or a natural disaster. However, these rules are very different compared to in-country applications.
The Home Office conceded that its visa fee waiver policy was unlawful following a successful legal challenge. This policy, following the legal challenge, makes provision for people who are already in the UK and need to apply for permission to remain in the country on human rights grounds, to apply for a fee waiver if they can’t afford the application cost.
Following the legal ruling, acceptance for in-country fee waiver UK visa applications have increased significantly. The guidance was updated as recently as 5 March to emphasise that the primary consideration on whether someone qualifies for a fee waiver is an affordability test.
Out of country applicants impacted
Despite the updated guidance, those making an application outside of the UK are still overlooked. According to Home Office data, an average of 2,500 UK visa fee waiver applications were made per month in 2020. However, the government agency doesn’t hold records on the number of fee waiver applications made outside the UK.
It’s claimed that this isn’t because every person making an entry clearance application can afford fees in the region of £3,000, it’s more to do with the fact that the Home Office policy on these kinds of applications is so narrow that the criteria are practically impossible to meet.
Apart from a few unique scenarios, such as applicants being on a UK government scholarship, the only discretion that can be applied for entry clearance is when the Secretary of State determines that a person qualifies under exceptional circumstances.
Officials are given no discretion other than reasons listed in the legislation. People who tried to apply under this policy were refused. This means that many families have been split simply because they were unable to afford exorbitant UK visa fees.
The legal challenge was brought by three out-of-country applicants whose fee waiver applications were rejected. Two of the applicants were represented by the Joint Council for the Welfare of Immigrants. The claimants argued that the out-of-country policy was ‘unlawful and irrational.’
A judicial review took place and based on the evidence presented, the Home Office quickly conceded that its policy was unlawful and did not seek to defend it. The government agency instead agreed to withdraw the policy and revise it with a view to introducing an affordability assessment.
The three applicants who brought the legal challenge will have their individual applications reviewed under the new policy.
The Home Office has not yet disclosed when the new policy will be published, but has said that in the meantime, urgent fee waiver applications will be reviewed. Anyone making an application is urged to submit evidence demonstrating that they cannot afford the application fee and information showing that their case requires immediate consideration.
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