Litigation debt now a general ground for refusal
Each year, the Home Office is awarded considerable litigation costs by the courts and tribunal. Some applicants fail to pay these costs. They may then make further applications to be granted entry clearance, leave to enter or leave to remain.
Prior to 6 April 2016, the Immigration Rules did not provide a specific power to refuse such applications on the basis that the applicant owed a litigation debt to the Home Office. This position has now been changed by Statement of Changes in Immigration Rules HC877.
From 6 April 2016, a new discretionary power to refuse applications on the basis of litigation debt has been introduced into Part 9 of the Immigration Rules, which contains the general grounds for refusal. The new rule is designed to encourage applicants to pay litigation debts that they owe and assist the Home Office in recovering the costs incurred in dealing with the unsuccessful litigation.
Paragraph 320(23) of the Immigration Rules now provides that entry clearance or leave to enter the United Kingdom should normally be refused “where the applicant has failed to pay litigation costs awarded to the Home Office”.
Paragraph 322(13) of the Immigration Rules now similarly provides that leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused “where the applicant has failed to pay litigation costs awarded to the Home Office”.
An equivalent change has been made to Appendix V, which contains ‘suitability requirements’ for applicants under the visitor route based on the general grounds contained in Part 9 of the Rules.
A change has also been made to the ‘suitability requirements’ in Appendix FM and Appendix Armed Forces such that applications made under those Appendices may be refused on the basis of litigation debt.
As Appendix FM sets out how the Secretary of State will consider applications to enter or remain in the UK on the basis of family or private life, and Appendix Armed Forces applicants may raise similar considerations, the rule confers a discretionary power to refuse an application on the basis of a litigation debt.
It is clearly right that people who are ordered to pay costs to the Home Office following an unsuccessful appeal or claim should do so. However, whether it is right to invoke the discretionary ground for refusal and refuse a subsequent application for entry clearance, leave to enter or leave to remain on the basis of a failure to pay litigation costs will require a highly fact sensitive assessment. Relevant factors are likely to include the size of the debt, the age of the debt, the reason(s) for non-payment and the impact of any refusal decision on the applicant or any relevant third-parties.
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