The Queen on the application of SS v Secretary of State for the Home Department  EWHC 3390 (Admin) (judgment here)
This was an interesting case that was somewhat eclipsed by the Chapti judgment when it came out back in December 11. In summary, this was a challenge by way of judicial review to a decision to refuse to waive an entry clearance fee for settlement purposes.
The claimant minor who was based in Ethiopia wished to join his sister (the sponsor), father and brother in the UK. His sister had previously been granted indefinite leave to remain as a refugee, and his father and brother had previously, in 2007 been permitted to join his sister on the basis of Article 8 ECHR.
The claimant made an application for entry clearance in 2009, however it was rejected because no fee was paid. Submissions were subsequently sent by the claimants solicitors stating that there should be a waiver of the fee. Amongst other reasons it was argued that the fee should be waived because the Claimant was applying under Article 8 ECHR and his sponsor was in receipt of benefit and could not afford the relevant fee (£810.00). The Entry Clearance Post however insisted on payment of the fee. There was a string of post decision correspondence between the parties about the matter, with further evidence and submissions being submitted by the claimant’s solicitors, however the decision continued to be upheld by SSHD.
1. Applicants are only entitled to a waiver if they can show: i. they fall within some statement of policy of SSHD; or ii. they fall within the Elmi exception i.e. there are other compelling circumstances of a case case not referred to in policy that should be taken into account, and that taking such matters into account, it would be irrational for SSHD to refuse to grant a waiver; or iii. there is a duty to grant a waiver under s.6(1) of the HRA by reference to ECHR; or iv. ususal grounds of judicial review apply.
2. The claimant in this case did not fall within any statement of policy at the date the relevant decision was challenged – evidence of the sponsors means, and the familial circumstances post-dated the impugned decision- that evidence was only relevant in relation to Article 8 ECHR.
3. There had been no unfair moving of the goal posts through the reference to different fees in correspondence by SSHD with the claimant. This played no material role in the ability of the claimant to present and request his waiver.
4. There was no failure to have regard to material matters in deciding not to waive the fee as there was no good legal basis for requiring consideration of a hypothetrical case – the claimants argued that the order in which family members came to the UK was accidental, and that were it to have been reversed the claimant would have been eligible for a fee waiver on the basis of the family reunion policy at the time. Further, there was no authority to suggest that in waiver cases of this kind, Article 8 ECHR cases should be dealt with in the same way as a claim for summary judgment. Additionally such an approach would fail to strike a proper balance between the interests of the individual and the community. Furthermore, SSHD could not be crticised for referring to the statutory guidance on s.55 of the 2009 Act given that this post dated the decision. Finally the delay in the case could not be attributed to SSHD, it was instead the claimant who had failed to provide comprehensive and full sumbissions and evidence- this was the source of the delay.
5. There was nothing irrational about the original decision letter. The relevant fee is set by legislation and SSHD is entitled to operate a restrictive policy in relation to her power of waiver. She was entitled on the basis of the information and evidence before her at the time she made the decision to conclude that the family was not incapable of paying the fee, and that the claimant was being satisfactorily looked after in Ethiopia.
6. The claimant was entitled to rely upon Article 8 ECHR as it applied to the circumstances that presented themselves to SSHD, and as it applies at the time of the hearing and judgment.
7. In a case where the claimant, sponsor and family can show that they have no ability to pay the fee, it will be necessary to assess in broad terms the strength and force of the underlying Article 8 ECHR claim which is to be made. If on undertaking such an exercise, it can be seen that the claimant may well have a strong claim under Article 8, and that the insistence on payment of the fee will set the claim at nought, then a positive obligation to waive the fee may arrise under Article 8 ECHR.
8. In undertaking the above assessment, SSHD and the court are not bound to take the claimant’s asserted case at its highest, as on a summary judgment application. They are entitled to subject the case to a critical evaluation to determine the underlying strength of the Article 8 ECHR claim. In a strong case where there is a ‘direct and immediate link’ between the fee and respect for private and family life, the interests of the general community would require the forgoing of the fee. In a marginal case, where the claimant sponsor and family may be able to raise the money for the application but it might take some time for them to do it, the strength and force of the underlying Article 8 claim will be important, as will the assessment of financial resources, and how long the making oft he application will have to be delayed in order for the funds to be raised.
9. Applying the above to the facts of SS, the application for JR was dismissed. The case fell within the marginal category. SSHD gave proper consideration to the family life of the applicant and his family which was at the less compelling end of the scale for the reasons identified in para 78. In relation to the information that was not before SSHD, but instead before the Court, the claim for a waiver failed given that the claim to right to respect for private and family life was at the weak end of the scale (for details see para 79)