Nicola Braganza KC and Maria Moodie, both of the Garden Court Chambers Public Law and Immigration Teams, instructed by Sarah Looney at the Public Interest Law Centre, successfully represented the Claimant in (NR) v Secretary of State for the Home Department (AC-2023-LON-002042).
Following the grant of permission on all grounds by Mrs Justice Hill DBE in December 2023, the Home Office conceded the claim agreeing to amend its policy and the impugned Immigration and Nationality (Fees) Regulations 2018 to now enable destitute Bereaved Partners to request a fee waiver when applying for Indefinite Leave to Remain (ILR).
As a direct result of the challenge, on 9 September 2024 the Secretary of State for the Home Department (SSHD) finally enacted the Immigration and Nationality (Fees) (Amendment) Regulations 2024, Regulation 3, which provides for destitute Bereaved Partners to apply for a fee waiver when applying for ILR under Appendix Bereaved Partner of the Immigration Rules.
The Statement of Changes (HC 2017, 10 September 2024, at page 66) details the amendment to BP 1.3(a) of the Immigration Rules to reflect the possibility of a fee waiver being granted. The accompanying Explanatory Memorandum states:
“5.22 Changes are being made in response to issues raised during litigation, to Appendix Bereaved Partner and Appendix Gurkha and Hong Kong military unit veteran discharged before 1 July 1997, to allow bereaved partners (a spouse, civil partner, or unmarried partner, who has previously been recognised as a partner under Part 8, Appendix FM, Appendix EU, Appendix HM Armed Forces, or Appendix Gurkha and Hong Kong military unit veteran discharged before 1 July 1997 of these Rules) and their dependants to benefit from a fee waiver if they are destitute.
5.23 Currently, a bereaved partner who has no other route to stay must leave the UK if they cannot afford the fee. So, the provision of a fee waiver to those who are destitute will allow them to settle in the UK at the time they are most vulnerable.”
This is a significant victory resulting in a change in the law that will benefit all destitute Bereaved Partners who, but for their inability to pay the application fee, are otherwise eligible and entitled to ILR in recognition of their particular vulnerability and status as widows/widowers. It is also a particularly important victory for bereaved women and mothers as the evidence demonstrated that this cohort was disproportionately impacted by the previous rules and at greater risk of destitution as a result.
Context of the challenge
‘Bereaved Partners’ are eligible and entitled to Indefinite Leave to Remain (‘ILR’) under Appendix Bereaved Partner of the Immigration Rules (formerly Section BPILR of Appendix FM), otherwise known as the “Bereaved Partner Concession”. However, the absence of any discretion to grant a fee waiver within the Immigration and Nationality (Fees) Regulations 2018 prevented access to ILR for those who are rendered destitute by the bereavement and are unable to pay the application fee, currently fixed at £2,885.
The claim was supported by important evidence from RAMFEL and the Unity Project that evidenced the disproportionate and discriminatory impact on women.
It was within this context that the important strategic challenge to the legality of the Fees Regulations, and the SSHD’s blanket refusal to exercise her residual discretion in individual cases to consider a fee waiver, was pursued on five grounds, including: Irrationality and unlawful fetter of discretion; Unlawful frustration of the intention of the Bereaved Partner Concession; Gender-based discrimination contrary to Article 14, read with Article 8 ECHR; Breach of the PSED duty pursuant to s.149 Equality Act 2010; and Breach of s.55 BCIA 2009, best interests of the child duty. A Declaration of Incompatibility was sought that the Fees Regulations breach Articles 14 and 8 ECHR.
The recently enacted Regulation 3 of the Immigration and Nationality (Fees) (Amendment) Regulations 2024 amends Table 5 of Schedule 1 and Table 9 of Schedule 2 of the Immigration and Nationality (Fees) Regulations 2018 to now enable fee waiver for ILR applications from destitute Bereaved Partners applying for leave to enter or leave to remain in the UK.
Regulation 3 of the Immigration and Nationality (Fees) (Amendment) Regulations 2024 comes into force at 9am on 9 October 2024.
This litigation has taken over 2 years to bring about change and its success is as a result of many different organisations working together and persevering in this challenge to the Home Office. NR has struggled and experienced real hardship but is relieved that the case is finally concluded, that the change in law is to be finally introduced to help others, and that she has been granted ILR. She is happy to be able to start rebuilding her life with her children.
