Assertion of modifications HC877, of 11 March 2016, gave the Dwelling Workplace one more energy to refuse purposes for depart to enter or stay within the UK. For all purposes made on or after 6 April 2016, having a “litigation debt” to the Dwelling Workplace could also be a floor for refusal. Such money owed might come up in the midst of any litigation towards the Dwelling Workplace (e.g. judicial critiques, claims for illegal detention and appeals), the place the court docket or tribunal orders the opposite occasion to pay the Dwelling Workplace’s prices.
The related guidelines are discovered at paragraph SUI 17.1 of Half Suitability of the immigration guidelines.
Beforehand, the foundations on litigation debt had been discovered throughout the immigration guidelines in Half 9: Basic grounds for refusal, Appendix FM, Appendix Non-public Life, Appendix Armed Forces, and Appendix V: Customer. Half Suitability of the immigration guidelines changed Half 9 on 11 November 2025. Half Suitability applies to all routes aside from Appendix EU, Appendix EU (Household Allow), half 11 (Asylum) (aside from paragraphs 352ZH to 352ZS, and 352I to 352X), Appendix Service Suppliers from Switzerland, and Appendix Settlement Safety.
The facility to refuse on the idea of a litigation debt beneath Half Suitability is “discretionary”, versus necessary. Which means the Dwelling Workplace shouldn’t mechanically refuse purposes the place there’s a litigation debt, however might want to take into accounts numerous components, as outlined in its steerage.
Dwelling Workplace steerage: when will a litigation debt imply a refusal?
Having a litigation debt could also be a floor for refusal for nearly all purposes to the Dwelling Workplace. It doesn’t apply to:
- purposes made beneath Appendix EU or Appendix EU (Household Allow);
- safety claims (besides beneath paragraphs 352ZH to 352ZS, and 352I to 352X, and 352A to 352FJ of the Guidelines);
- purposes for entry clearance beneath the ECAA Affiliation Settlement (however it does apply to ECAA Extensions of Keep)
- Appendix S2 Healthcare Customer
- Appendix Service Suppliers from Switzerland
- Appendix Settlement Safety
- Appendix Home Employee who’s a Sufferer of Fashionable Slavery
The Dwelling Workplace will (or ought to) weigh the components it must take into accounts in a different way when an applicant raises human rights grounds or the very best pursuits of a kid, for instance in an utility made beneath Appendix FM.
Whereas there will probably be a presumption in favour of refusal for many purposes for depart to enter or stay (together with as a customer) the place the applicant owes a litigation debt to the Dwelling Workplace, this presumption will not be there when purposes are made on the idea of personal or household life. The steerage on unpaid litigation prices states that the place there are human rights or the very best pursuits of a kid issues, “it won’t usually be proportionate to refuse the appliance solely due to a litigation debt.”
Contemplating a refusal on the idea of litigation debt
The Dwelling Workplace will take into accounts numerous components when deciding whether or not to refuse an utility on the idea of a litigation debt. These embody, however usually are not restricted to:
- How the debt was accrued. The Dwelling Workplace will take a look at the conduct of the applicant in litigation to evaluate whether or not the debt was “constructed up from repeated and unmeritorious litigation”. For instance, the steerage states that the place an applicant accrued a litigation debt by bringing unsuccessful judicial evaluate proceedings “in an try and frustrate their removing from the UK” and the judicial evaluate was discovered by the court docket to be completely with out advantage then it “would hardly ever be acceptable to train discretion in such a case.”
- The extent of cooperation with the Dwelling Workplace debt restoration makes an attempt, , as an example, whether or not the applicant ignored requests to pay the debt or tried to pay it off.
- The placement of the appliance. The Dwelling Workplace means that candidates overseas are much less incentivised to pay and due to this fact expects these making use of for entry clearance to have cleared any litigation debt earlier than travelling to the UK.
- The aim of the appliance. The extra essential it’s that the applicant is allowed to enter or keep within the UK, the extra doubtless it’s that discretion is utilized. The Dwelling Workplace provides the instance of an applicant who must attend a relative’s funeral versus a vacationer approaching vacation.
- The applicant’s capability to pay. For instance, whether or not the applicant has proven willingness to pay his or her debt however has been unable to satisfy an agreed cost plan as a consequence of circumstances past their management. That stated, the Dwelling Workplace says that it’s unlikely to train discretion on the idea of the applicant’s lack of ability to pay as a result of “most candidates are expects to have the ability to preserve and accommodate themselves with out accessing public funds”.
- The quantity of the debt and the way lengthy it has been excellent. The larger the debt, and the longer it has been excellent for, the much less doubtless it’s that the Dwelling Workplace will train discretion and disrespect the debt. Litigation money owed don’t expire.
- Some other related components.
Human rights purposes and the very best pursuits of youngsters
The place an utility engages article 8 ECHR, or the very best pursuits of a kid are into account, the Dwelling Workplace will nonetheless contemplate the components above but in addition take a look at the proportionality of a refusal.
The steerage briefly states:
If the applicant is unable to pay the litigation debt however in any other case qualifies for entry clearance or permission on human rights grounds, or as a result of it’s in the very best curiosity of a kid, it won’t usually be proportionate to refuse the appliance solely due to a litigation debt.
Specifically the Dwelling Workplace will contemplate the applicant’s capability to pay (e.g. it could disregard a debt the place they accepted that the applicant is destitute and waived the appliance’s charges) and the extent of cooperation with its debt restoration makes an attempt.
The next examples are supplied:
Instance 1 A associate applicant beneath Appendix FM owes a debt of £2500. They’ve financial savings of £1000 and a daily earnings of £1500 monthly. The applicant began to repay the debt after which stopped. There isn’t any affordable rationalization supplied to [Litigation Finance Team] relating to the stoppage of funds. Refusal of the appliance on the idea of the litigation debt will usually be proportionate as there isn’t any proof of an lack of ability to pay.
Instance 2 The applicant owes a debt of £2500. They haven’t any financial savings and haven’t had any earnings for the final 4 years. They’re reliant on state advantages and/or the help of associates to pay for primary lodging and meals. The applying charge for his or her utility was waived as a result of the applicant is destitute. The applicant meets all the opposite necessities of Appendix FM. It could usually be affordable to grant the appliance regardless of the litigation debt. The debt stays excellent.
In distinctive circumstances, the Dwelling Workplace might contact an applicant to request extra data, with a view to assessing whether or not there are distinctive or compassionate causes justifying an train of discretion. Nevertheless, it’s clear from the steerage that this would be the exception reasonably than the rule, and candidates shouldn’t anticipate to be given this chance as a matter of routine.
Appendix Settlement Household Life, Appendix Non-public Life and Appendix Grownup Dependent Relative include exceptions to among the grounds of refusal, together with litigation debt, for settlement purposes. These exceptions are set out at paragraphs SETF 2.4 and SETF 11.4 of Appendix Settlement Household Life, paragraph PL 12.4 of Appendix Non-public Life and paragraph ADR 11.5 of Appendix Grownup Dependent Relative.
Advising candidates
It’s clear from the steerage that in principle an utility won’t mechanically be refused due to a litigation debt. Nevertheless, the Dwelling Workplace will all the time examine whether or not there’s an impressive litigation debt, and it’s unlikely that officers will train their discretion in favour of the applicant, particularly for purposes made aside from on the idea of household and personal life.
Authorized representatives ought to, due to this fact, contemplate the next:
- Take directions from their purchasers as to whether or not they have a litigation debt. It is perhaps acceptable in some circumstances — for instance if purchasers have misplaced a judicial evaluate prior to now — to acquire a replica of their Dwelling Workplace file or contact the Litigation Finance Group to examine whether or not the purchasers had been ordered to pay prices. Contact particulars are within the steerage.
- If there’s an impressive litigation debt, assess the equity and lawfulness of such an award. Authorized representatives ought to all the time keep in mind that it’s attainable {that a} value award was made unlawfully. If the award was lawful, authorized representatives ought to advise their purchasers to settle the debt or agree on an instalment plan. The truth is, it’s clear that the aim of this floor of refusal is for the Dwelling Workplace to get better cash owed to them, reasonably than to punish candidates for having been ordered prices within the first place. If an applicant settles the debt or agrees on an instalment plan, they shouldn’t be penalised.
- When an applicant is clearly not ready to settle their debt (specifically as a result of they can’t afford it), proof of their funds ought to be submitted with the appliance. Do watch out for these submissions contradicting others argument, for instance if the applicant has to indicate that they’ve enough funds to take care of and accommodate themselves. Additionally bear in mind that, even when an utility is granted regardless of there being a debt, this doesn’t imply that the debt has been written off. If the applicant’s monetary circumstances had been to enhance sooner or later, and the litigation debt was lawful, candidates ought to be suggested to pay it then, because the debt could possibly be held towards them in future purposes.
- Any time a shopper is ordered to pay the Dwelling Workplace’s prices, assess the lawfulness of such award and search to problem it if illegal.
It’s reasonably unlucky {that a} litigation debt can simply be used towards an applicant, however there aren’t any mechanisms to equally pressure the Dwelling Workplace to pay its litigation money owed to claimants and their attorneys, which regularly stay excellent for years.
This text was initially revealed in February 2017 and was up to date in June 2020 with help from Nath Gbikpi. It has now been up to date by Rachel Whickman in order that it’s appropriate as of the brand new date of publication proven.
