Variation of an immigration application, fee waiver & right to appeal

The UK’s immigration programs are somewhat complex. It requires you to prepare and file an application in line with the Immigration Rules. When a deportation order is made, a right to appeal is generated.

In this article, we will discuss the changes applied to a variation of an application, how the fee waiver application operates, and the right to appeal a human rights application. 

Fee waiver application

The purpose of the fee waiver application is to allow a human right claim to be filed and avoid the applicant paying costs, whereby affordability is not there. 

The courts have considered fee waivers in an immigration context in three important judgments: Omar, R v Secretary of State for the Home Department [2012] EWHC 3448 and Carter, R v Secretary of State for the Home Department [2014] EWHC 2603 and Dzineku-Liggison & Ors, R [2020] UKUT 222 (IAC). This guidance has taken these judgments into account.

In the Home Office guidance, the following statement is made: Applicants will only be granted a fee waiver on the basis of ECHR rights in cases where the underlying human rights claim on which they rely forms a substantive basis of their application. This will not be the case where, for example, an ECHR Article is mentioned in passing as part of an application which is primarily made on another basis.

The application is not an immigration decision, therefore whilst it may protect a person’s legal status under Section 3C of the Immigration Act 1971, it does not warrant a grant of leave and not an indication that leave to remain is likely to be granted. In addition to this, when a decision is made on the fee waiver, the applicant will be able to file an immigration application within 10 working days of that decision.

The guidance does not set out whether that application must be for a human rights claim or on another basis, for example on the skilled worker route. Nonetheless the Home Office have at times, penalised those who then applied for immigration routes not classed under the human rights claims. 

Summary evidence required for the fee waiver application

The application will require both the applicant, and family members, including any sponsors to provide their financial position. Home Office does credit checks on all applicants including any linked person to verify income and costs. 

Usually Home Office prior making a decision, may request further information and documents to be filed as part of the consideration. Failure to do so, can lead to a refusal. 

If the Home Office are aware that a person is working without permission, it is considered as a criminal offence in line with Section 24 of the Immigration Act 1971. Further to that, third party income may not be considered, whereby the third party is only provided with limited help and support.

Preparing an application for a fee waiver carefully and to ensure it meets the published requirements are relevant to an application.

Variation of an immigration application

When you intend to vary an immigration application, it is to change the intention of the reasons why you wish to remain in the UK. The Home Office in the last 12 months have tweaked into the policy.

The introduction of paragraph 34BB of the Immigration Rules, provides us a legal framework to this. The changes have been applied on human rights claim, which states the following:

(7) Where a human rights claim is made as part of an application and a subsequent application is made which varies that application under paragraph 34BB(1), if the applicant is then granted entry clearance or permission to stay, any outstanding human rights claim will be treated as withdrawn, but where any subsequent application is refused, the human rights claim, if not already decided, remains outstanding and will be considered at a time decided by the Secretary of State.

You cannot vary a human rights claim following the changes being implemented.  

Immigration appeals

When a decision is made that does not favour an applicant and their dependants, then the decision can be appealed to the First Tier Tribunal. 

The appeal legislations are found here: 

1.    Nationality, Immigration and Asylum Act 2002.

In terms of decisions related to EUSS, this would be in line with Section 36 of The Immigration (European Economic Area) Regulations 2016.

Section 94 of the Nationality, Immigration and Asylum Act 2002 have been updated to reflect the removal of the right of appeal, effective from 28 June 2022.

On all appeal matters, you cannot bring a new matter which would change the position of your application to the Home Office. It may require consent from the Home Office to consider this and an application to the First Tier Tribunal would need to be filed. 

Human rights application & appeal rights

Given the changes being applied, not all application filed may attract a right to appeal. Further to that, those holding current leave to remain and files an application (change or upgrade), which leads to a refusal but holds extant leave, they may not be afforded a right to appeal. 

In terms of changing your legal position, for example, if a person holds leave to remain as a partner but the relationship has broken down, then an application for leave to remain may constitute a right to appeal. 

Decisions relevant to an unlawful decision

The relevance of whether a decision is accordance to the law will be relevant on the human rights appeal, will be considered in line with Section 6 of the Human Rights Act 1998.

EUSS appeals

When an application for EUSS is filed, a right to appeal may be generated. This is considered under EU Withdrawal Agreement & EEA EFTA Separation Agreement. Where the application can be appealed, this would be considered in line with Appendix EU Immigration Rules. Appeals on EUSS can be challenged before the First Tier Tribunal on point of law. 

Regulation 9 of the Citizens’ Rights Appeals Regulations permits an appellant to raise a new matter either in their grounds of appeal or following the service of a section 120 notice. A new matter refers to any ground of appeal brought under the Citizens’ Rights Appeals Regulations or under Section 84 of the Nationality, Immigration and Asylum Act 2002.