Litigation debt as a general ground for refusal
In March 2016, a specific power to refuse applications on the basis that an applicant owes a litigation debt was introduced as a general ground of refusal in Part 9 of the Immigration Rules (HC877). Equivalent changes were made to the ‘suitability requirements’ for applicants under the visitor route in Appendix V and for applicants under the family and private life migration routes in appendix FM and appendix Armed Forces. The power is discretionary and applies to applications made on or after 6 April 2016.
On 17 October 2016, the Home Office issued guidance for its staff. It explains that a litigation debt can arise from all types of litigation: appeals, judicial reviews and private law claims such as unlawful detention. The guidance directs Home Office caseworkers to take into account all litigation debts, including those accrued before 6 April 2016 when considering applications made on or after 6 April 2016.
Whereas there is a presumption in favour of refusal for all routes except appendix Armed Forces and appendix FM applications (and for private life leave to remain applications), which requires Home Office caseworkers to consider whether it is appropriate to exercise discretion in an applicant’s favour; for appendix FM, private life leave to remain applications under para 275ADE(1) of Part 7 to the Rules, and appendix Armed Forces applications, the rules do not create a presumption in favour of refusal, but rather the Home Office caseworker must consider whether in the individual circumstances of the case, it is proportionate to refuse leave under the suitability provisions.
The guidance explains how discretion will be exercised by Home Office caseworkers. There is a channel of communication between caseworkers and the Home Office’s Litigation Finance Team (LFT) to ascertain whether there is an outstanding debt. Where an agreement has been made by an applicant to pay by instalments but payments have not been made or missed, the LFT will reassess the debt and confirm to the caseworker whether the debt is again outstanding and thus falls to be taken into account. Conversely, where an applicant has not yet fully paid off the debt but has entered into an arrangement to pay it off in instalments and is paying as agreed, caseworkers must not take the debt into account.
Even where a presumption in favour of refusal is created, caseworkers must consider whether refusal is reasonable taking account of all relevant factors in the round. These include, but are not limited to the following listed factors:
- How the debt was accrued;
- Level of cooperation with Home Office debt recovery attempts;
- The location of an applicant;
- The purpose of the application;
- An applicant’s ability to pay;
- How long the debt has been outstanding; and
- Amount of debt.
Applicants should ensure that all relevant information and evidence relating to any litigation aged debt is provided with the application because there are only limited circumstances in which Home Office caseworkers will request further information.
Contact Our Immigration Barristers
For advice and representation in relation to challenging a refusal on grounds of litigation debt, contact our immigration appeal barristers in London on 0203 617 9173 or via our online enquiry form.