A court ruling has given hope to thousands of migrants, including health and care workers, that they will no longer have to pay visa and NHS surcharge fees if they cannot afford them.
An immigration court found that the Home Office was applying too harsh a test on whether people should be forced to pay.
It comes as Boris Johnson faces growing pressure to scrap the health surcharge for migrant health and social care workers in light of their essential role during the coronavirus crisis.
Although the Home Office has granted a free one-year extension to visas for migrant health and social care workers – a move estimated to benefit 3,000 workers – they will be expected to resume payments thereafter.
The ruling on Wednesday in the upper tribunal of the immigration and asylum chamber focused on the issue of fee waivers for visa applications. The NHS surcharge forms part of this application.
Under Home Office rules, a fee waiver is possible if applicants can prove they are destitute. But many impoverished migrants fall short of the high bar for that status.
The court ruled that the Home Office was applying the wrong test for whether or not people should have to pay thousands of pounds for their visas and NHS surcharge. Instead of the destitution test, the court said the Home Office should be applying a test of whether applicants could afford to pay the fees, and if migrants could prove they did not have the income to pay then they should not have to do so.
The case was brought by a family of five who have not been able to regularise their immigration status because they cannot afford the fees. They cannot afford to pay because they are not allowed to work because they have been unable to regularise their immigration status.
The parents arrived in the UK on work visas from Ghana in 2005 and 2006. Their three children – twin boys aged nine and a daughter aged five – were all born in the UK.
The Home Office asked the family to pay £7,665 in visa fees and the health surcharge, even though the family produced evidence to the court of having just one penny in their savings account. The Home Office said they did not meet the destitution test because a friend was giving them accommodation and they were getting basic support to survive from their church and a food bank.
A freedom of information response from the Home Office showed that between January 2015 and June 2019, 24,370 people were refused permission for a fee waiver on their visa applications. Some of these may qualify for a visa waiver in the light of this judgment, and there are likely to be many others who have not yet applied and would be eligible.
Saul Stone, a solicitor at Duncan Lewis, said: “This is a landmark judgment which will provide some reprieve to the thousands of people who apply for waivers of extortionate Home Office fees each year.
“This group is likely to include many low-paid migrant NHS workers who have been unable to demonstrate that they are destitute but nevertheless cannot afford the fees required to apply to stay in the UK. If you are granted a fee waiver for your immigration fees, you are also granted a fee waiver for the health surcharge – it goes hand in hand.”
The Home Office was given permission to challenge the ruling at the court of appeal. It has been contacted for comment.