Family Leave to Remain [FLR(fp)]_Fee Waiver_NRPF

[appealalready]

https://www.gov.uk/government/uploads/s ... waiver.pdf

Per the OMAR case and Home Office Guidance, any one who applies for a family leave to remain under Article 8 can also apply for a fee waiver.

If you are granted a fee waiver, then when you are granted family leave to remain, you will also automatically be granted recourse to public funds.

Under section 95 of the Immigration and Asylum Act 1999, a person is destitute if:

a) They do not have adequate accommodation or any means of obtaining it (whether or
not their other essential living needs are met); or

b) They have adequate accommodation or the means of obtaining it, but cannot meet
their other essential living needs.

[appealalready]

http://www.bailii.org/ew/cases/EWHC/Adm ... /2603.html

Excerpt from Carter v SSHD

"I put to D's Counsel the position where an applicant, not in receipt of NASS, proved that he was no better off than such a person. The response was that the exceptional circumstances provision enabled a degree of flexibility. I pressed by asking to what extent somebody in such a financial position would come within exceptional circumstances, since the 2013 Directions at paragraph 7 seem to circumscribe very closely the ambit of exceptional circumstances. After lunch Mr Kellar informed me as follows:

"The Defendant accepts in principle if a person were able to prove with sufficient evidence of satisfactory quality that their financial position was such that were they to pay the application fee, they would be left without sufficient funds to meet their essential living needs and would thereby be rendered destitute within the meaning of the policy, this could amount to exceptional circumstances. In making that assessment, the Defendant would consider all the circumstances of the case, including, but not limited to, the income and assets of the applicant under the support currently or potentially available to them from family members, friends or others."

This position of D:

As read out to me, does not reflect the reality that if a person is in that position, it is not a question of them being able to pay the fee and thereby being rendered destitute within the meaning of the policy. Such a person would not be able to get their hands on the hundreds of pounds necessary to pay the fee. D appeared to accept this point by qualifying the statement by saying that exceptional circumstance may apply if in reality, as a result of an applicant's financial position, they could not pay the fee.

Does not appear to accord with the policy on exceptional circumstances. (policy, Paragraph 7). Nor does it appear to accord with the Introduction to the policy (paragraph 1.0) which refers to the Omar case and says in terms

"this class of case refers to cases such as that of the Claimant, who was in receipt of asylum support because he was destitute. In light of this judgment a new fee waiver has been introduced for those who can evidence that they are destitute, when making a relevant Human Rights claim."

Does not sit easily with the fact that there is nothing on the request for fee exemption form (Appendix 1 FLR (O)) which indicates D's position as explained to me. Page 1 of the form expressly says "you should only complete this form if you are seeking a fee exemption because you are destitute and so are unable to pay the fee for your leave to remain application form FLR(O)" Then the definition of destitution is set out.[12]

(i) Puts a person who may prove themselves to be in no better position than an applicant in receipt of NASS into a discretionary "exceptional circumstances" category whereas the applicant who is in receipt of NASS has a right to fee exemption.
(ii) If the "exceptional circumstances" provision is broader than it appears from paragraph 7 of the policy, then that undermines the laudable objective of having guidance which is clear and objective.