Tribunal decisions

The decision

Case No: JR-2025-LON-001902
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

5 May 2026
Before:

UPPER TRIBUNAL JUDGE KEBEDE

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Between:

THE KING
on the application of

Maha Zahid
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr Z Jafferji
(instructed by Internations Legal LLP), for the applicant

Mr S Tawiah, Counsel
(instructed by the Government Legal Department) for the respondent

Hearing date: 23 April 2026

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J U D G M E N T

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Judge Kebede:

1. This is an application for judicial review of the decision of the Secretary of State for the Home Department dated 14 March 2025 refusing to consider the applicant’s fee waiver application. Permission to apply for judicial review was granted on the papers by Upper Tribunal Judge Pinder on 15 December 2025.

Background

2. The applicant is a national of Pakistan, born on 2 March 1994. On 13 September 2023 she was granted leave to enter the UK as a student, valid until 11 February 2025. She entered the United Kingdom in October 2023 and commenced her studies on an MSc in Respiratory Medicine programme at the University of Chester and completed her academic engagement with the university on 11 October 2024. The university issued a letter on 26 November 2024 confirming that she had completed her academic engagement. The university conferred the applicant’s degree on 12 March 2025 and her transcript was issued on 18 March 2025. The university informed the Home Office on 12 March 2025 that she had successfully completed her course in line with the qualifying criteria for the Graduate Route.

3. On 9 February 2025, two days before the expiry of her student leave, the applicant submitted a fee waiver application in relation to a proposed human rights application. Before a decision was made on the fee waiver application she submitted, on 13 March 2025, a paid application for leave to remain under the Graduate Route.

4. On 14 March 2025 the respondent issued the decision under challenge, rejecting the applicant’s fee waiver application. On 18 March 2025 the respondent refused the applicant’s application for leave under the Graduate Route, with a right to Administrative Review, as follows.

“You submitted a Fee Waiver application on 9 February 2025.

In line with published guidance, your previous leave has not been extended under Section 3C of the Immigration Act 1971.

Published guidance for fee waiver applications state:
Regardless of whether the fee waiver request is granted or refused, the applicant will benefit from 3C leave if:
• the permission application that is submitted is the one for which the fee waiver request was made. Submission of a further fee waiver request within the 10 working day window will not extend the applicant’s 3C leave.

As you have now applied for permission to stay under Appendix Graduate of the Immigration Rules, your fee waiver application is not valid.

Your Student LTE expired on 11 February 2025, but you did not submit a valid application for Permission to Stay until 13 March 2025.

GR 4.3. states: The student sponsor must have notified the Home Office, by the date of application, that the applicant has successfully completed the course of study in GR 4.2.

Your Student sponsor was required to notify the Home Office, by the date of your application, that you had successfully completed your course of study. Your sponsor did not notify us of your successful completion. We contacted your sponsor on 17 March 2025 to confirm that you did not successfully complete this course. They informed us that: “Thank you for your email. I can confirm that the date of award was 12/Mar/2025.”

Therefore, as your Student sponsor did not confirm your successful course completion date to the Home Office until 4 days after the date of your application, your application is refused under Immigration Rules Appendix Graduate GR 4.3.

Therefore, you do not satisfy the requirements for this category and it has been decided to refuse your application for Permission to stay in the United Kingdom as a Graduate under paragraph GR 2.2 (a) and GR 4.3 of the immigration rules.”

5. The applicant submitted a pre-action protocol (PAP) letter, dated 29 March 2025, challenging the fee waiver decision of 14 March 2025 as unlawful, and on 1 April 2025 she made an application for Administrative Review challenging the decision of 18 March 2025 refusing her Graduate Route leave application (which remains outstanding). The respondent, in a reply to the applicant’s PAP letter, maintained the decision of 14 March 2025.

6. The applicant then lodged a judicial review claim on 13 June 2025 challenging the respondent’s decision of 14 March 2025 refusing to consider her fee waiver. The respondent filed an Acknowledgement of Service and summary grounds of defence responding to the applicant’s grounds and asserting that they were simply a misconceived disagreement with the decision.

7. Permission to seek judicial review was initially refused on the papers. However the application was renewed and, following an amendment to the grounds, permission was granted by Upper Tribunal Judge Pinder at a hearing on 8 December 2025. The decision granting permission is a long one, but I have nevertheless set it out, as follows:

“….

(3)The Applicant when renewing her application pursued no less than six grounds of challenge, which were listed as follows:

(i) Tameside duty and procedural fairness;
(ii) Irrationality and variable intensity of review;
(iii)Section 3c analysis error;
(iv)Unlawful guidance - wrong legal test applied; (v)Enhanced Tameside duty due to severity of consequences – also termed as a failure to exercise discretion in the Applicant’s original grounds;
(vi)Systemic unfairness and public law principles.

In her amended grounds, the Applicant was granted permission to pursue an additional ground, which can be summarised as follows:

(vii) The Respondent failed to consider that the Applicant’s ‘in-time’ fee waiver application engaged the protections provided by s.3C of the 1971 Act and that in turn, the Applicant’s Graduate Route application varied that application pursuant to paragraphs 34BB and 34GB of the Immigration Rules. Thus – it is argued – continuing the protection provided by s.3C from the time that the Applicant’s previous permission to stay ‘expired’ on 11th February 2025.

(4) Mr Rehman was helpfully able to re-frame the grounds pursued. First, raising procedural unfairness with inter alia the Respondent failing to contact the Applicant pursuant to para 34BB of the Immigration Rules. Second, arguing that the Respondent’s policy instructions on s.3C of the 1971 Act and how this is to be interpreted in fee waiver applications is unlawful and/or its application to the Applicant’s case is unlawful (p.25 of the Respondent’s Guidance ‘Fee waiver: Human Rights-based and other specified applications’, (‘the fee waiver Guidance’) p.199 of the consolidated JR bundle).

(5) I am satisfied that the crux of the Applicant’s case is arguable – that is which is contained in the additional grounds (dated 11th September 2025) and also the renewal Grounds 3 and 4 (dated 15th August 2025) concerning the operation of s.3C of the 1971 in the context of fee waiver applications and how this was interpreted and applied by the Respondent in the Applicant’s case. The procedural unfairness and failure to exercise discretion grounds (which are covered by the Applicant’s renewal Grounds 1, 2, 5 and 6) are in my view dependent on the earlier grounds succeeding (e.g. the duty to contact the Applicant pursuant to para 34BB of the Rules, if it is found that her fee waiver application was later ‘varied’) or contingent on the outcome of those earlier grounds with, for instance, the argued failure to exercise discretion being a ground in the alternative. For this reason, I grant permission on all grounds but limit my reasons for doing so on the core grounds raised by the Applicant as summarised above.

(6) Considering matters at permission stage, I am satisfied that the grounds pursued in relation to the operation of s.3C of the 1971 Act and the Respondent’s instructions in her own guidance are arguable. I would urge both parties to consider what I set out below very carefully so as to better assist the Tribunal at a substantive hearing, should the matter proceed to such a resolution.

(7) It is arguable that the restrictions the Respondent seeks to impose at p.25 of the fee waiver Guidance are not borne out in s.3C of the 1971 Act itself. Para 34G of the Immigration Rules states (for the purposes of determining the date of application (or variation of application) for permission to stay), that where the online application includes a request for a fee waiver, it is the date on which the online request for a fee waiver is submitted that is relevant, as long as the completed application for permission to stay is submitted within 10 working days of the receipt of the decision on the fee waiver application. I consider it arguable that this provision also does not limit an applicant from submitting a non-human rights application, as appears to be the case in the policy instructions at p.25.

(8) It consider it further arguable that the Respondent’s Guidance is unlawful or her application of it is similarly and arguably unlawful:

(i) It is arguably unclear whether the bullet points listed at p.25 (p.199 of bundle) are exhaustive and/or whether it is mandatory for each condition (each bullet point) to be met – the Respondent’s submissions before me interpret them as such but there is no wording at p.25 that would support that interpretation (e.g. the inclusion of “each of the three conditions are met”, “and” at the end of each bullet point sentence).
(ii) The Guidance arguably does not specify whether an applicant is protected by s.3C leave should they submit an application to vary leave prior to a decision on the fee waiver application, which is the case here albeit with a non-human rights application being submitted.

(9) Both parties briefly addressed me on the guidance given by the Supreme Court in Afzal, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 1909 where the Court considered similar issues being raised but in a context whereby the applicant(s) had submitted their fee waiver application at the same time as the variation of leave application. The Court held at para 33 of the judgment that such a ‘twin’ application is “conditionally valid, i.e. it is valid unless and until an obligation to pay the fee is imposed, following a refusal to grant relief, and the fee is not thereafter paid within the specified period of ten working days”.

(10) Mr Taiwah’s submission, on behalf of the Respondent, that a fee waiver application is not an application to vary leave and is not therefore capable of engaging the protections contained in s.3C(1), is a forceful one. However, that is arguably undermined by the Respondent’s position in her own Guidance, which arguably appears to accept that a fee waiver application submitted on its own is capable of engaging those protections. She states at p.25 of her guidance “regardless of whether the fee waiver request is granted or refused, the applicant will benefit from 3C leave if” certain conditions are met. Those conditions all relate to matters that are sequential to the fee waiver application being made and/or being decided.

(11) Following the introduction and common use of online applications, which entail a sequential submission of fee waiver and variation of leave applications, the issues that the Applicant raises are all the more arguable. For those reasons, I grant permission to the Applicant for her judicial review claim to proceed to a substantive hearing.”

8. The respondent filed her detailed grounds of defence, maintaining her position that the applicant’s grounds were without merit.

9. The matter was listed for hearing and came before me.

Hearing and submissions

Documents

10. A trial bundle was produced for the hearing, together with an authorities bundle. Both parties filed skeleton arguments prior to the hearing, and both made submissions before me reflecting their skeleton arguments.

Issues

11. The list of issues for determination, as set out in the parties’ skeleton arguments, is as follows:

Ground 1: The respondent’s failure to notify the applicant that her application for leave to remain as a graduate would invalidate her fee waiver application, and lead to her becoming an overstayer, was a breach of the respondent’s duty to enquire
Ground 2: The respondent’s decision-making process was procedurally unfair, because the applicant was not given an opportunity to make representations in advance as to the consequences of the respondent refusing the fee waiver application
Ground 3: The respondent’s decision-making approach was irrational. In particular, the respondent should have allowed the applicant to elect whether to continue to apply for leave to remain on the basis of her human rights or as a graduate without having to face the consequence of becoming an overstayer.
Ground 4: The respondent failed to exercise her discretion lawfully, because she failed to make sufficient enquiry as to the consequence of her decision to refuse the fee-waiver application.
Ground 5: The Respondent’s decision was unlawful, because she was under an enhanced duty to enquire as to the consequences of her decision, which she did not exercise
Ground 6: The Respondent’s fee-waiver guidance is unlawful, because it presents a misleading picture of the true legal position with regard to fee-waiver applications and does not explain that fee waiver applications will become invalid if a separate paid application is subsequently made.
Ground 7: The application for a fee waiver constituted an application that resulted in permission to stay being extended by section 3C of the 1971 Act – Afzal v SSHD [2021] EWCA Civ 1909 at [33] and [38].

Submissions

12. Mr Jafferji’s starting point in his submissions was that in order for s.3C to be engaged, there had to be an application, and the application had to be pending and undecided at the point that existing leave expired. Section 3C(4) and (5) then permitted a variation of that application. He submitted that paragraph 34G(4) of the immigration rules clearly envisaged, by its wording, that an application was being made, and that an online application included the fee waiver request, so that where a variation application was made, the date of the variation was the date the previous application was made and the most recent application would be the one considered, as set out in paragraph 34BB(1) of the rules. Section 34BB(4) then provided the applicant with an opportunity to elect which application should be considered. He submitted that it was not possible for a few waiver request to be made independently of an application, and that if that was the respondent’s approach, and the fee waiver was treated by the respondent as free-standing, then she had not identified any mechanism by which that could occur.

13. Mr Jafferji submitted that the s.3C engagement ground (ground seven) was the core of the applicant’s claim and that if that ground was made out, the other grounds fell away. However if it was not, the other grounds were still being pursued as independent grounds. He submitted that the s.3C issue was decided in Afzal in the applicant’s favour in identical circumstances, whereby a fee waiver application was made which included a human rights claim, and that application was conditionally valid, so that it was valid unless and until an obligation to pay the fee was imposed, following a refusal to grant relief, and the fee was not thereafter paid within the specified period of ten working days. Mr Jafferji referred to [33] of Afzal, where the court relied upon the decision of the Supreme Court in R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63 in finding that “the invalidity would naturally be said to arise at the point where the applicant is no longer able to meet the condition which would ensure the continued validity of the application. It would be unjust to invalidate the application retrospectively”. He submitted that the respondent was wrong to say that the situation in Afzal was different to the applicant’s case, as there was no evidence to show that it was, and it was consistent with the wording in paragraph 34G(4) as to the fee waiver request being included in the online application. He submitted that s.3C could not be engaged at the point of time the fee waiver request was made if there was no immigration application included, and a later application would post-date the expiry of leave. Therefore when the fee waiver request was made, that was part of the application making process, and the s.3C leave only came to an end when the applicant failed to follow through. Alternatively, if the respondent had changed the mechanism by which a fee waiver application was made, so that the reasoning in Afzal no longer applied, that should have appeared in the guidance and should have been made clear to the applicant, otherwise there was procedural unfairness.

14. Mr Jafferji submitted that the decision in Hussain, R (On the Application Of) v Secretary of State for the Home Department (S.3C - Para 34G(4) - fee waiver) [2026] UKUT 82, upon which the respondent relied, did not assist the Tribunal, as it was materially different, since in that case the applicant failed to submit a completed application within the 10 day window, whereas the applicant in this case had already made a paid application before the end of that period. Further, the Tribunal in that case was not referred to Afzal and did not take account of that case. Mr Jafferji submitted that, in the circumstances, if it was accepted that the fee waiver included the immigration application, then the application for leave under the Graduate Route was an application for variation of leave, and as such the applicant’s 3C leave continued, so that she was not an overstayer.

15. In relation to the other grounds, Mr Jafferji submitted that if, on the other hand , the consequence of the applicant making the paid application under the Graduate Route was that she lost her s.3C leave, that was contrary to the findings in Afzal and would have taken her by surprise, and was a consequence of a procedural trap which was of the Secretary of State’s making. If the Secretary of State had changed her position since Afzal and considered there to be a two-stage process rather than the combined one in Afzal, there was a duty on her to act in a procedurally fair manner and to contact the applicant to enquire whether she did indeed want to proceed with the Graduate Route application, given the consequences if she did. Mr Jafferji submitted that that was a mandatory obligation on the Secretary of State which was imposed by paragraphs 34BB(4) and (5) of the rules. He submitted that the policy guidance purported to give comprehensive guidance and to set out the position with s.3C leave but it did not address the situation arising in this case, namely where a paid application to vary leave was made whilst a fee waiver application was pending. There was no warning or clarification of the effect on s.3C leave in such circumstances in the guidance, and the guidance was therefore misleading. Procedural unfairness arose from the injustice and the unsatisfactory outcome of s.3C leave ending before the fee waiver request was completed.

16. Mr Tawiah submitted, in response, that the underlying question was when was the date of the completed application to vary leave, since if the application was made after 11 February 2025, s.3C did not apply. He submitted that if, as the applicant claimed, she had made an application with the fee waiver request, there would need to be a complete application for leave to remain, whereas what there was, was an application for a fee waiver with an incomplete application. No complete human rights application had been made. Mr Tawiah submitted that paragraph 34G(4) could only be read one way, namely that the immigration application had to be the application for which the fee waiver request was made. The applicant made her fee waiver request on 9 February 2025, stating that she would be making her application on human rights grounds. At the time her leave expired, she was not eligible to make an application under the Graduate Route, as the university only informed the Home Office on 12 March 2025 that she had completed her degree. The Graduate Route application was the only complete application made by the applicant and that was after her leave had expired. It was agreed by all parties that a fee waiver application could only be made in relation to a human rights claim. The applicant could not make a fee waiver request for a Graduate Route application, and so the respondent properly advised her in the decision of 14 March 2025 that her fee waiver application could not be considered. There was no other decision the Secretary of State could have made. That was particularly so because a fee waiver application was made because an applicant was saying they could not afford the application fee, but if they made a paid application then they had decided that they could afford it. Mr Tawiah submitted that the applicant could not expect that there was still ongoing progress for a wholly different application.

17. Mr Tawiah submitted that it was difficult to understand why the applicant was challenging the fee waiver decision rather than the Graduate Route application. That application had been refused not only because the applicant was an overstayer but also because her university had failed to inform the Home Office, as at the time the Graduate Route application was made, that she had completed her degree. Mr Tawiah submitted that the circumstances in Afzal were different, as in that case there had been a completed application for leave to remain alongside the fee waiver request, and there was no engagement with paragraph 34G(4). The fee waiver application in that case was made for the purposes of the permission application which was actually made, whereas the applicant in this case did not follow through with the application. Mr Tawiah submitted that the case of Hussein was relevant as it touched upon the interplay between s.3C and paragraph 34G(4), which was the crucial issue in this case. The applicant in this case could not meet the requirements in paragraph 34G(4). Mr Tawiah relied upon [61] to [67] in Hussein, and the reference to the necessary ‘intermediate step’, of making the permission application for which the fee request had been made, which was not taken in this applicant’s case. He submitted that the temporary protection afforded by the making of the fee waiver application ended on 13 March 2025 when the applicant made her Graduate Route application. Mr Tawiah submitted further that if the applicant’s position was correct, that would elevate a fee waiver application to an application for leave to remain. It would also mean, in principal, that individuals not wanting to make human rights applications but who were waiting to make applications for leave to remain, would apply for fee waivers initially in order to utilise s.3C, which would be an abuse of s.3C.

18. With regard to the applicant’s grounds one, four and five, namely the Tameside Duty/ failure to make reasonable enquiries and the assertion that the Secretary of State possessed information which the applicant dd not have, namely that the Graduate Route application would invalidate the previous application, Mr Tawiah submitted that that was misconceived. There was no duty on the Secretary of State to enquire of an applicant if they really meant to make the application they were making. It was common sense that if the applicant made a Graduate Route application that that was what she wanted to pursue, and that she did not want to make a human rights application. As for grounds two and three, asserting procedural unfairness and irrationality, Mr Tawiah submitted that if someone made a paid application and did not pursue an earlier one, there was no reason why the interests of fairness required that the Secretary of State be obligated to check with the person first before refusing the application. As for ground six, which asserted that the Home Office fee-waiver guidance was unlawful, Mr Tawiah submitted with regard to page 25 of the guidance, that the context was to give caseworkers a steer on how fee waiver applications should be considered in human rights applications and it was not guidance on s.3C leave in exhaustive circumstances. It was just putting into guidance what paragraph 34G(4) said and explaining what paragraph 34G(4) and s.3C leave meant, when taken together, in the context of a fee waiver request. The guidance could not be expected to cover everything. That was what the immigration rules did. The guidance just provided an explanation. There was nothing unlawful about the guidance.

19. Mr Jafferji responded by reiterating the points previously made. He submitted that the respondent’s position had changed and represented a change to the position in Afzal which was relevant to the question of fairness and the rational of the guidance, but it did not answer the s.3C point, which was that s.3C was only engaged by an application being made. In Afzal, the application was not complete because a fee was required and a fee waiver was pending. The Court said that even when the fee waiver was rejected s.3C was engaged and the application was still conditionally valid up to the point when the relevant time period ended, at which point the s.3C leave ended. Mr Jafferji submitted that that was the same as the situation in this case, whereby a complete application had already started and so s.3C leave should have continued. He submitted that paragraph 34G(4) could not have been intended to override the decision in Afzal and if it was, then the way in which the rules had been construed was unsatisfactory. The fact that the system could be abused by making a paid application following a fee waiver for a human rights application was not a basis for construing the rules in the way the respondent sought to construe them, and in any event the respondent had wide powers to refuse an application on the basis of abuse. Had the applicant waited for the fee waiver process to be completed, paid the fee and waited for the application to be completed, there would not have been any complaint, yet that could also constitute abuse. Mr Jafferji submitted that the respondent was wrong to say that the Secretary of State’s only option was to refuse the fee waiver application on the basis that she did. If the basis for rejecting the request was that the applicant had shown that she could afford the application, the decision should have said that. What the Secretary of State should have done was to give the applicant 10 days to pay the fee.

20. Mr Jafferji repeated his submission that the decision in Hussein was not relevant to this case. He referred to [68] and [69] where a potential flaw in the fee waiver regime was identified in relation to a subsequent ability to pay the fee leading to a person losing their s.3C leave, similar to the applicant in this case, and where the Tribunal decided that the issue was not before them and so did not determine it. Therefore the decision in that case was of no assistance. As for the fee waiver guidance, Mr Jafferji submitted that the guidance at page 25 did not just replicate paragraph 34G(4) and that he was not saying that the three bullet points at page 25 of the guidance were incorrect but that the guidance was incomplete. It did not address the situation in which the applicant found herself. Procedural fairness required the respondent to ask the applicant if she wanted to proceed with her Graduate Route application given the consequences. He referred again to paragraphs 34BB(4) and (5) of the immigration rules which he submitted illustrated the procedural fairness protections and obligations being incorporated into and built into the immigration system. He referred to other examples of procedural fairness protections being built into the rules and he submitted that the guidance failed to provide the relevant warnings in that respect and so was unlawful.

Legal Framework

Immigration Rules

21. Section 3C of the Immigration Act 1971 states as follows:

3C Continuation of leave pending variation decision

(1) This section applies if—

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when—

(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).

(ca) an appeal could be brought under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”), while the appellant is in the United Kingdom, against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(cb) an appeal under the 2020 Regulations against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of those Regulations), or

(d) an administrative review of the decision on the application for variation—

(i) could be sought, or
(ii) is pending….

(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

Paragraph 34 of the Immigration Rules

Paragraph 34GB provides:

34G. For the purposes of these rules, and subject to paragraph 34GB, the date on which an application is made is:

(1) where the paper application form is sent by post by Royal Mail, whether or not accompanied by a fee waiver request form, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or

(2) where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or

(3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted; or

(4) where the online application includes a request for a fee waiver, the date on which the online request for a fee waiver is submitted, as long as the completed application for permission to stay is submitted within 10 working days of the receipt of the decision on the fee waiver application.

34GA. Where an application is rejected as invalid that decision will be served in accordance with Appendix SN.

34GB. Where a variation application is made in accordance with paragraph 34BB, the date the variation application (the new application) is made is deemed to be the date the previous application was made prior to it being varied (the old application).

34GB. Where a variation application is made in accordance with paragraph 34BB, the date the
variation application (the new application) is made is deemed to be the date the previous
application was made prior to it being varied (the old application).”

Paragraph 34BB provides:

34BB Except where one or more applications have been made under Appendix EU …:

(1) Where an applicant has an outstanding application for entry clearance or permission to stay which has not been decided (“the previous application”), any further application for entry clearance or permission to stay will be treated as an application to vary the previous application and only the most recent application will be considered.

(2) An application to vary a previous application must comply with the requirements of paragraph 34, or the validity requirements for the route applied for or, subject to paragraph 34B, the application to vary will be invalid and will not be considered.

(3) Any valid application to vary a previous application will be decided in accordance with the immigration rules in force at the date the application to vary is made.

(4) Where an application to vary a previous application has been made, the Secretary of State
will contact the applicant to notify them that the application is being treated as an application to vary and that any previous application will have been varied.

(5) Where more than one application to vary has been made, or where it is not clear which is
the most recent application, the Secretary of State will request that the applicant confirm which application they want to be considered…

22. Policy/ Guidance

“Fee waiver: Human Rights-based and other specified applications” version 7.0, dated 11 September 2024, states as follows:

“a. This guidance tells you how to consider requests for a fee waiver from those who wish to make an in-country, specified human rights application where to require payment of the fee before considering the application would be incompatible with a person’s rights under the European Convention on Human Rights (ECHR).” (Page 3)

b. This guidance applies to the following types of application:

• applications for permission under the 5-year partner route from applicants who are not required to meet the minimum income relating to disability or caring (see: Appendix FM and Adult Dependent Relative Adequate maintenance and accommodation)
• applications for permission under the 5-year parent route
• applications for permission under the 5-year private life route
• applications for permission under the 10-year partner, parent or private life routes
• applications for permission on the basis of other ECHR rights
• applications for further permission from applicants granted discretionary leave (DL) following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further permission would breach their ECHR rights
• applications for permission to stay in the UK as a child under Appendix Child staying with or joining a Non-Parent Relative (Appendix CNP)

c. Applicants will only be granted a fee waiver on the basis of ECHR rights in cases where the underlying human rights claim on which they rely forms a substantive basis of their application. This will not be the case where, for example, an ECHR Article is mentioned in passing as part of an application which is primarily made on another basis. (Page 5).

d. 3C Leave

Regardless of whether the fee waiver request is granted or refused, the applicant will benefit from 3C leave if:

• they had valid permission when the fee waiver request was submitted, and which has expired by the time the fee waiver request is decided

• the applicant makes a valid application for permission within 10 working days of the date of the fee waiver decision

• the permission application that is submitted is the one for which the fee waiver request was made (Page 25)”

Discussion

23. The core of the applicant’s claim concerns the operation of s.3C of the Immigration Act 1971 in the context of fee waiver applications. The main focus of the applicant’s case is in the last ground, namely that the application for a fee waiver constituted an application that resulted in permission to stay being extended by section 3C of the 1971 Act.

24. The applicant relies heavily on the decision in Afzal in making that submission, asserting that the situation in the applicant’s case was identical to the situation in Afzal. The applicant relies in particular upon [33] and [38] of Afzal, which state as follows:

“33. In my judgment the position is different where the application to vary leave is combined with an application to be relieved of the payment of fees altogether. I do not think it can sensibly be said that the application for leave, when coupled with such a request, is invalid ab initio and only becomes validated if the relief is granted or when the fees are paid. In my view the application is conditionally valid, i.e. it is valid unless and until an obligation to pay the fee is imposed, following a refusal to grant relief, and the fee is not thereafter paid within the specified period of ten working days. At that point the position is akin to that in which the two appellants in Mirza found themselves when they failed to pay the fees in the specified manner. In Mirza the legislation provided that an application without payment of the requisite fee was “not validly made”. Where there is a failure to pay the IHS, reg.6 provides that that the application “must be treated as invalid”. I see no material distinction in the language used. In my judgment the invalidity would naturally be said to arise at the point where the applicant is no longer able to meet the condition which would ensure the continued validity of the application. It would be unjust to invalidate the application retrospectively, just as Lord Carnwath thought it was with respect to Ms Ehsan. It would have the unsatisfactory consequence that an applicant whose presence was lawful when the application was made might retrospectively be held to have been unlawfully present in the UK at that time. I would not so construe the rules unless compelled to do so.”

“38. For these reasons, I consider that there was a valid application to vary leave, albeit that its continuing validity was conditional on the applicant paying the relevant fees if it should be determined that the appellant was bound to pay them. That would entitle the appellant to rely upon section 3C until the point where the application ceased to be valid. That was when the ten working days had expired after the fee had been requested on 8 November. The relevant date was, therefore, 22 November 2017.”

25. The applicant relies on that decision as establishing that an in-time application to vary leave accompanied by a fee waiver request engages s.3C, and that even if the fee waiver application is ultimately rejected, and the fee that then becomes payable is not paid, s.3C leave will not become retrospectively invalid. It is submitted that the consequence for the purposes of the applicant’s claim is that the fee waiver application made on 9 February 2025 engaged s.3C leave, and that when the application was varied to that under the Graduate Route, the s.3C leave continued and remained outstanding until the outcome of the application for Administrative Review, such that the applicant continues to benefit from s.3C leave and did not become an overstayer on 12 February 2025 as the respondent asserts.

26. I am in agreement with Mr Tawiah, however, that the reliance upon Afzal is misconceived and that the circumstances are not the same as those in this applicant’s case. In Afzal, it was clear that the fee waiver request was combined with an application to vary leave to remain and that the fee waiver request was made for the application that was submitted, namely the application for further leave to remain in the UK. That is evident in the chronology at [3] and [4] of Afzal with reference to the relevant application, ‘the July 2017 application’, which was an application for an extension of leave. There was, furthermore, no suggestion in Afzal that the permission application for which the fee waiver request was made was incomplete. The only basis upon which the application was considered to be conditionally valid was that the validity depended upon either a fee waiver being granted, or alternatively the fee waiver being refused and a fee paid within the specified period. There was no question of the validity depending upon a complete permission application being made, since there clearly was a complete application for leave to remain. In the case of the applicant before me, however, she has never made the application for permission for which the fee waiver was requested, and has made it clear that she never intended to make such an application but rather intended to apply under the Graduate Route, a route for which a fee waiver was not available and which was not the application for which the fee waiver request was made. Accordingly, it is not the case, as suggested by Mr Jafferji, that the respondent has changed the mechanism by which a fee waiver application has been made and has failed to apply the reasoning in Afzal, but rather the situation for the applicant is entirely different to that in Afzal.

27. Mr Jafferji submitted that the respondent had also shifted her position in these proceedings, in that the applicant’s position was initially rejected on the basis that she had never made a permission application, and that a fee waiver application by itself was not an application capable of extending leave to remain, whereas the position subsequently taken was that the fee waiver request was part of an application but that it was an incomplete one. However, the parties are agreed that a fee waiver application is not made in isolation and cannot in itself be considered as an immigration decision, but rather it must accompany an application for permission and is part and parcel of that application. As Mr Tawiah submitted, that did not mean, however, that the application made by the applicant on 9 February 2025 was one which was then capable of being varied to a Graduate Route application. I agree with Mr Tawiah that that could only be the case if a complete permission application was made. That was not the case with the applicant’s application, given that the permission application for which the fee request was made was never carried through and was essentially nothing more than an intention to make a human rights claim which was then abandoned, uncompleted, in favour of the paid Graduate Route application.

28. In so far as Mr Jafferji submits that there is no mechanism by which to permit a fee waiver application to engage s.3C and to serve as to extend leave under s.3C other than as part of an immigration application capable of subsequently being varied in accordance with s.3C(4) and (5), it seems to me that paragraph 34G(4) clearly provides that mechanism. That is the respondent’s case and in my view is the correct case. For the reasons already given, I do not agree with Mr Jafferji that paragraph 34G(4) runs contrary to the findings and principles in Afzal, or that the respondent is seeking to construe the rules in an unsatisfactory way and departing from the reasoning in Afzal. I agree with Mr Tawiah that paragraph 34G(4) can only be read in one way, namely that the permission application must be the application for which the fee waiver was made in order for the fee waiver request to be considered as the date of the application. As Mr Tawiah submitted, that was made clear in the case of Hussein.

29. The decision in Hussein is very relevant to the circumstances in this applicant’s case, as it addressed the interplay between s.3C and paragraph 34G(4), the crucial issue in this appellant’s case. I reject Mr Jafferji’s submission to the contrary. Although the circumstances of the applicant and the applications made by the applicant in Hussein were not entirely the same as those of the applicant in the case before me, with the focus being rather on the 10 day window after a fee waiver decision, the core issues and reasoning are nevertheless directly relevant to the applicant’s case. The fact that the Tribunal in Hussein did not consider or engage with the decision in Afzal is immaterial, given that the decision in Afzal was not relevant, for the same reasons as it is not relevant to this appellant’s case, as discussed above. Likewise, the fact that the Tribunal in Hussein did not go on to determine a matter which was raised at [68] and [69] as a potential flaw in the fee waiver regime is immaterial to this applicant’s case and did not mean that the decision in Hussein was of no applicability in this case.

30. In Hussein, the Tribunal confirmed at [63] that:

“There is an inherent link between section 3C and Rule 34G(4) notwithstanding the lack of express reference to each other. In order to engage section 3C an application for variation of leave to enter or remain has to be made before the expiry of leave. In order to decide when an application is treated as being made, one has to refer to paragraph 34G of the Rules. Only by considering the two together is it possible to determine whether an application was made before the expiry of leave or not.”

31. The Tribunal went on to find, at [65}, that:

“Firstly, a fee-waiver request is not an application to which section 4(1) applies applying the ordinary meaning of the words which I have underlined at [7] above. Furthermore, applying paragraph 34G there is an intermediate step required before an application is 'made'. That is the submission of the completed application within ten working days of the decision on the fee waiver application. It is not until that step is taken in accordance with the timescale set out in paragraph 34G(4) that the application is 'made'. Conversely, if that step is not taken, there is no application which has the effect of conferring 3C leave and neither is there an application for 'leave to enter or remain' for the purposes of section 4(1) of the 1971 Act.”

and at [67], that:

“it is not the decision on the application for variation of leave which ends 3C leave, rather, the absence of a timely application for leave nullifies the temporary protection afforded by the submission of a fee waiver request.”

32. That, in my view, is a direct answer to the applicant’s case and supports the respondent’s view that the temporary protection afforded by the fee waiver request on 9 February 2025 ended on 13 March 2025 when she made her Graduate Route application, when it became clear that she was not going to make the human rights claim for which the fee request had been made.

33. I also find merit in Mr Tawiah’s submission that the interpretation which the applicant seeks to give to paragraph 34G(4) in relation to her s.3C leave would open up an avenue of abuse, in that in principal individuals who had no intention of pursuing a human rights claim could simply use the fee waiver process to enable them to make a leave to remain application at a later date which they would otherwise not have been eligible to make prior to the expiry of their previous period of leave. The fact that the Secretary of State has powers to address such abuse by refusing those applications is not, in my view, a sufficient answer to that submission. In any event that was simply an additional, and certainly not the main, basis for rejecting the applicant’s attempt at interpretation of paragraph 34G(4).

34. For all these reasons I do not accept that the applicant made an application prior to the expiry of her leave that was capable of extending her s.3C leave in the manner she claims, namely enabling her to expect the respondent to treat her Graduate Route application as a variation of a previous application. I agree with the respondent that by making a paid, Graduate Route application, which was not an application that could be supported by a fee waiver request in any event, and by failing to make a completed human rights application, the temporary protection afforded by the fee waiver request was nullified and the applicant’s leave was not extended under s.3C and expired on 11 February 2025. The application she made on 13 March 2025 was, therefore, out of time, and was made at a time when she had become an overstayer.

35. At this point it is relevant to note that the applicant’s judicial review claim was made as a challenge to the respondent’s decision of 14 March 2025 refusing the fee waiver application. As Mr Tawiah submitted, it is somewhat difficult to understand why the applicant chose to challenge that decision rather than the decision of 18 March 2025 refusing her Graduate Route application or rather than awaiting the outcome of the Administrative Review request in relation to the Graduate Route decision. Mr Tawiah’s position was that the decision of 14 March 2025 was the only decision the respondent could have made in the circumstances, given that the applicant had, since requesting a fee waiver, made a paid application under a different route to that which the fee waiver request related. He submitted that, by making the fee waiver request, the applicant was saying that she could not afford the application fee, yet by making the paid Graduate Route application she had shown that she clearly could afford the fee. That prompted some discussion, at my instigation, about the difference in the fee for a human rights claim and a Graduate Route claim, when it could have been that the fee for one was affordable but the fee for the other was not. Mr Jafferji, in his submissions in reply, said that that was similar to the matter referred to at [68] of Hussein, namely the changing position in ability to meet the application fees. In the event, nothing material arose out of that, and ultimately it was of no relevance to the core issues in this case.

36. Mr Jafferji’s reply to the suggestion that the respondent could not have made any other decision than the one she did, in rejecting the fee award request, was that what the respondent ought to have done was to give the applicant 10 days in which to pay the fee. However I agree with Mr Tawiah that by making a paid Graduate Route application, the applicant essentially extinguished the fee waiver application and the respondent was therefore perfectly entitled to refuse to consider the fee waiver application any further. There was no requirement for the respondent to do anything else.

37. For all these reasons I do not find the seventh ground to be made out.

38. The remaining grounds overlap and essentially raise the same issues. Grounds one, four and five rely on the respondent’s Tameside duty: the duty to enquire. Those grounds assert that the Secretary of State possessed information of which the applicant was unaware, namely that by making the Graduate Route application she would become an overstayer, and that there was therefore an obligation on the Secretary of State to make the applicant aware of that and to check that she was aware of the consequences of making the application. Grounds two and three make essentially the same points, asserting that there was procedural unfairness and irrationality in the respondent’s decision which was made without putting the applicant on notice of the consequences of her Graduate Route application. Mr Jafferji submitted that para 34BB(4) of the immigration rules imposed a mandatory obligation on the respondent upon receiving the Graduate Route application, to contact the applicant to notify her that the application was being treated as an application to vary and that any previous application would have been varied, rather than treating the Graduate Route application as a standalone application and using it as a reason to refuse to consider the fee waiver at all. He submitted that the rules thereby provided safeguards which met her human rights obligations.

39. However I agree with Mr Tawiah that there was no obligation on the Secretary of State to ask such a question and no duty for her to do so or to check that the applicant really wanted to make the application she was making. As Mr Tawiah submitted, a common sense reading was that if the applicant made a paid application under the Graduate Route, that was what she wanted to pursue. It was not the case, as Mr Jafferji suggested, that the applicant had made an application which she was seeking to vary to a Graduate Route application: she had never made a completed human rights application and there was therefore nothing to vary for the purposes of triggering any duties under paragraph 34BB(4). Mr Jafferji’s submission, that the respondent should have warned the applicant of the consequences and checked that that was really what she wanted to do, is tantamount to suggesting that the applicant be invited to continue with an application which she had no intention or interest in making, namely a human rights claim, simply in order to prolong her stay in the UK, whereas what she really wanted to do, if that indeed was the case, was to be a Graduate in the UK. I do not agree with the submissions made in that regard and reject those grounds as being without any merit.

40. Finally, the sixth ground asserts that the respondent’s fee waiver guidance was unlawful. It is asserted by the applicant that the guidance presents a misleading picture of the true legal position with regard to fee-waiver applications. The applicant’s skeleton argument sets out two limbs to that ground, the second of which is that the third bullet point of page 25 of the guidance, that “the permission application that is submitted is the one for which the fee waiver request was made”, imposes a restriction on the operation of s.3C that finds no basis in s.3C itself or in paragraph 34G of the rules, that the restriction is a creation of the respondent's guidance alone and that it constitutes an unlawful attempt to add a condition to a statutory provision by administrative guidance. I note that that was one of the bases upon which permission was granted by Judge Pinder, at [7] and [8] of her decision. However Mr Jafferji did not make submissions to that effect and indeed accepted that the fee waiver could not be made for a non-human rights application. Neither did he make any submissions on the point at [8(i)] of the grant of permission, that it was unclear whether the bullet points listed at page 25 of the guidance were exhaustive and/or whether it was mandatory for each condition (each bullet point) to be met, and he appeared to accept that the fee waiver request had to relate to the permission application made. Those matters appeared to no longer be points of contention in challenging the guidance. However, in any event, and if I am wrong about that, I do not find those assertions to be made out. I agree with Mr Tawiah that a purposive and contextual reading of the relevant provisions in paragraph 34G(4) supports the wording of the guidance, namely the requirement that the permission application that was submitted was the one for which the fee waiver request was made, given that the wording “the completed application” in the third line of paragraph 34(G)(4) must necessarily be the online application which is referred to in the first line of that paragraph. Clearly all three bullet points had to be met and are mandatory.

41. It was the first limb of the sixth ground, as set out in Mr Jafferi’s skeleton argument, which was the challenge specifically pursued at the hearing before me. The challenge in that limb of the ground is that the guidance fails to explain that a fee waiver application will become invalid if a separate paid application is subsequently made. Mr Jafferji submitted that that created a “procedural trap”, whereby an applicant who read the guidance and acted in a way not prohibited by it, by making a paid application, would find themselves retrospectively made an overstayer without any warning. However, as Mr Tawiah submitted, it would have been entirely clear to the applicant that the application for permission to stay in the UK that she made (the Graduate Route application) was not the application for which the fee waiver request was made (human rights) and that once she made a paid application for an entirely different form of leave to remain in the UK the fee waiver request would be overtaken and rendered otiose. There was nothing misleading about the guidance, which sets out a clear picture of the circumstances in which a fee waiver request can extend leave. As Mr Tawiah properly submitted, the guidance cannot be expected to be exhaustive and to cover every eventuality. It is not guidance on s.3C leave in exhaustive circumstances. Its purpose is simply to advise caseworkers on how fee waiver applications should be construed in human rights applications and what paragraph 34G(4) and s.3C leave meant, when taken together, and to explain what happens in the event of a refusal of a fee waiver application in the context of s.3C leave. That aim is clearly achieved in the guidance. The assertion that the guidance is misleading and unlawful is without merit and the sixth ground is accordingly not made out.

42. For all these reasons the challenge to the fee waiver decision is not made out. There was no procedural unfairness, irrationality or breach of any duty by the respondent in making the decision that she did. The decision was made in accordance with the relevant statutory and legislative framework and the respondent’s own lawfully made policy guidance, and was a lawful, rational and reasonable one properly open to the respondent in the circumstance.

Decision

43. The applicant’s application for judicial review is accordingly refused.