June 3, 2016
We are a firm of solicitors based in North London with over 25 years experience in advising and representing those subject to immigration control in the UK. We serve both legally aided and privately paying clients and conduct numerous appeals in the First and Upper Tier Tribunals of the Immigration and Asylum Chamber each month. As such we feel we are qualified to comment on the impact that the proposals for fees as outlined in the consultation document dated April 2016 will have upon those clients we represent, those we do not, and those who have no representation at all. In summary we endorse and support the consultation response submitted by the Law Society dated June 2016. In addition we wish to make the following general points before moving on to the specific questions posed in the consultation:
1. The principle of full cost recovery of Tribunal fees takes no account of the benefit and essential service provided to the tax payer in having a fair and accessible Tribunal system.
2. The proposed fees are set at such a level that access to justice will be denied for many people who are unable to afford the fees or qualify for fee waiver. In R (on the application of Baiai and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2008] UKHL 53 at para 30 Lord Bingham held:
“My qualification relates to the prescribed fee. It is plain that a fee fixed at a level which a needy applicant cannot afford may impair the essence of the right to marry which is in issue. A fee of £295 (£590 for a couple both subject to immigration control) could be expected to have that effect”.
It will be recalled that following Baiai and the above criticism the Home Office abandoned any fee for the Certificate of Approval. In our view the appeal fees are set at such an extortionate level as to put the constitutional right of access to the courts beyond the reach of all but the very rich. The right to marry and the right to access the courts are similar in their nature. The proposed appeal fees may well by unlawful for the reasons identified by Lord Bingham.
3. The frequent reference in the consultation to a service that needs paying for by the individual is contrary to the principal of the rule of law. Access to justice should not be reduced to a commercial service for those who can pay.
4. There is a high risk of unlawful decision making going unchallenged if these fees take effect and this is unacceptable particularly as one of the parties to an appeal is effectively closing the door to the other by setting a procedural bar which, for many individuals, will be impossible to overcome.
5. It should not be a relevant consideration that some appeals and applications for permission will fail thus justifying a high fee to deter such applications. Those Appellants are still entitled to have their cases fairly determined in accordance with the Rule of law.
No.The increases are extremely high, some in the region of 500 per cent. The effect of such increases may be obvious but needs to be stated. There will be a consequential reduction in the number of appeals with the effect that those without the necessary finances to pay the fees will be denied access to the Courts allowing unlawful decision making to go unchallenged. It is of note that there is no distinction between the fees that a single Appellant and multiple Appellants have to pay. As the Law Society has noted in their response, a family of five would be expected to pay £4,000.00 compared to the £800.00 fee for a single Appellant. Essentially both will receive the same service from the Tribunal. The last published statistics for First Tier appeal successes from 2013/2014 indicate a success rate between 43% and 49% for managed migration, entry clearance and family visit visa appeals. Such high success rates are plainly an indication of poor initial decision making by the Home Office. It is easy to assume therefore that a significant proportion of these decisions will go unchallenged in the future if these fee increases are implemented. Following the impact of LASPO these appeals are largely out of scope for legal aid funding subject to exceptional funding being granted (which is rare and requires access to a solicitor with a legal aid contract willing to make such an application). Individuals who are no longer eligible for legal aid funding following LASPO cannot be assumed to have the means to absorb these fee increases. Many of these Appellants are people on low incomes, benefits or of limited means. If they seek representation they will generally need to do so on a private retainer and to add appeal fees to the costs of these cases would simply place access to the Courts out of the realm of possibility for these Appellants.
We would support the proposition that any Appellant who had already obtained the Home Office fee waiver should automatically be entitled to the Tribunal fees waiver. This is because the Home Office fee waiver criteria are particularly stringent such that anyone who qualifies would have no ability to pay the Tribunal fees.It is our view that the Home Office waiver criteria are too strict to be of assistance to most Appellants of limited means. We reiterate we are against the proposed fee rises in principle but any consideration of a waiver scheme needs to be far more generous than the current Home Office criteria.
We support the Law Society’s view that exemption should be extended to all asylum appeals regardless of means and all Appellants in detention regardless of means. We would also support an exemption for those appealing against decisions to deport them from the UK (since the State is taking action against an individual rather than an individual appealing against a decision to refuse an application the individual has made). We consider that the principle of full cost recovery is fundamentally flawed and should be abandoned. We agree that funds should be reallocated from other departments of the Home Office to provide additional funding from the Ministry of Justice. Home Office application fees and visa application fees have increased dramatically in the last 5 years. In view of the acceptance that profits of between 82% and 440% are being made by the Home Office on these applications it seems reasonable to reallocate some of these resources to fund a Tribunal system which is in need of significant investment.
As indicated above we are opposed in principle to full cost recovery in circumstances where the effect of elevating this principle is to deny justice. It is important to note that the Upper Tribunal exists to rectify and challenge legal errors made by the First Tier Tribunal. It is an important function of the Tribunal that decisions of the First Tier Tribunal can be effectively challenged. The proposed fee charges will consequentially prevent Appellants from challenging such legal errors and will again result in justice being denied. We agree with the Law Society that appeals on a point of law are not only of interest to the Appellant but have wider judicial and public interest. It is an essential function of the Upper Tribunal that it clarifies and develops the law. These measures will limit access to the Upper Tribunal and curtail the organic development of the case law in this area. The Upper Tribunal makes determinations on points of law which are sometimes favourable to Appellants and sometimes not. The Secretary of State and the Home Office often benefit from these decisions and this is therefore not a question of arguing for Appellants to be given an unfair advantage. Justice needs to apply equally to both parties involved in a dispute and if challenging a determination becomes a measure that is only realistically achievable by one party then this is contrary to the rule of law. Following on from this, we believe that if fees are to be introduced for Upper Tribunal appeals and permission to appeal applications such fees should also be paid by the Home Office.
We rely on reasons already stated in this response and are opposed in principle to fees for such applications. In the event that such fees are introduced they should be refundable if permission is granted. The point the Law Society make in their consultation regarding such fees equally applying to the Home Office is particularly pertinent. The decision of the Upper Tribunal Greenwood (No.2)(Para 398 considered) [2-15] UKUT 629 (IAC) criticised the Home Office for appealing all criminal deportation appeals as a matter of policy. Plainly if these fees are to be introduced they must apply equally to the Home Office.
As indicated above we do not agree with the proposed introduction of fees for the Upper Tribunal and if they are introduced they should be subject to the same exemptions as the First Tier Tribunal.
We concur with the Law Society’s response to this question.
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