21 Sep

Increasing appeal fees in the First-Tier and Upper Tribunals

On 15 September 2016, the Government published its consultation response in relation to the proposed fee rises for appeals at the Immigration and Asylum Chamber (IAC), as well as fees for applications for permission to appeal to the Upper Tribunal, although having actually read the response from the Government, it would appear that the consultation was carried out only as a formality with the majority of concerns simply being ignored.

The Government has proposed the fee changes in the First-Tier and Upper Tribunals (see table below) in a bid to try and secure an income of £34 million per year.

Of course there is no denying that the costs of running a Court need to be found and met from somewhere within the Government’s budget, but looking at these figures, I am totally shocked by the level of the fees proposed.

The First-Tier Tribunal’s Procedure Rules has a provision which allow the recovery of appeal fees should an Appellant be successful:

9(1) – If the Tribunal allows an appeal, it may order a respondent to pay by way of costs to the appellant an amount no greater than –
(a) any fee paid under the Fees Order that has not been refunded; and
(b) any fee which the appellant is or may be liable to pay under that Order.

But the wording of Rule 9(1) makes it clear that the recovery of the appeal fee is a discretionary power to be exercised by the Tribunal. Paragraphs 5 and 7 of the Joint Presidential Guidance on Fee Awards In Immigration Appeals published in December 2011 highlights the fact that this power is a discretion:

5. As a first principle, if an appellant has been obliged to appeal to establish their claim, which could and should have been accepted by the decision-maker, then the appellant should be able to recover the whole fee they paid to bring the appeal.

6. On the other hand, a different outcome may be appropriate if an appeal has been allowed principally because of evidence produced only at the appeal stage that could or should have been produced earlier, or if the appellant has otherwise contributed to the need for the appeal by their own action or inaction.

7. When deciding whether to make a fee award or the amount of such an award (up to the maximum of the appeal fee paid), a Judge sitting as a judge of the FtTIAC will have regard to all the circumstances. These will include the conduct of the parties, the reasons why the appeal succeeded, whether the appellant should have produced any fresh evidence that would have materially contributed to the success of the appeal at an earlier stage in the application.

With cuts in Legal Aid to most non-asylum cases, more and more applicants are having to negotiate the minefield of the Immigration Rules without professional assistance. If a decision were to be refused because a specific piece of evidence was missing, and this was only provided at the appeal stage after having been flagged up specifically by the Home Office within the reasons for refusal, the Tribunal may award partial costs, or make no award. If say an applicant were not to be awarded £80 or £140 in costs because of evidence having only been produced at the appeal stage, it is a loss that is going to be a lot more manageable than the proposed appeal fees of £490 or £800.

Even if an appellant is able to recover the full costs of the appeal due to the appeal arising as a result of poor Home Office decision making, an appellant would still need to be in a position to make the initial payment of £490 or £800 in order to file his appeal with the First-Tier Tribunal in the first place.

Should the Judge at the First-Tier Tribunal make a decision against an appellant that is erroneous in law, the appellant would then, under the proposed system, have to pay £455 to make an application to the First-Tier Tribunal for permission to appeal to the Upper Tribunal, which is renewable to the Upper Tribunal for a fee of £350, subject to then an appeal hearing fee at the Upper Tribunal of £510. If an appellant opts for an oral hearing and has to make two applications for permission to appeal to the Upper Tribunal, and then have a hearing at the Upper Tribunal for his case to be allowed, then the appellant would have to pay £2,115 in Court fees alone, making the whole appeal process very expensive, and very likely to unaffordable to many appellants. Even with the current  provision allowing recovery of appeal fees in the First-Tier Tribunal, and the to-be-drafted provisions in relation to fees for applications for permission to appeal, and hearings at the Upper Tribunal, an appellant would still need to be in a position to make the payments themselves in the first place.

In the House of Commons’ Justice Committee’s report on Courts and Tribunals fees, published on 14 June 2016, the Immigration Law Practitioners’ Association (ILPA) was noted at paragraph 92 as raising concerns that the majority of appellants were:

detained and/or destitute and in many cases will be facing imminent removal. Either they will be unable to pay the fee and will be denied access to justice, or they will be forced into unlawful and potentially exploitative work to pay the fee. Finding the funds to pay court fees or completing complicated applications for remission of the fees is complicated by the urgency of these cases.

The Committee stated the following at paragraph 92:

The evidence which we received in our inquiry on the likely impact of the proposed doubling of fees in the Immigration and Asylum Chamber caused us considerable concern. That concern has been magnified by the more recent publication of the Government’s proposals to set fees at a cost-recovery level, involving a six-fold increase in the fees currently charged. Neither do we believe that significant cost-recovery is ever likely to be realistic given the circumstances of most people who come through the immigration and asylum system. If these proposals are proceeded with, there is a danger that they will deny vulnerable people the means to challenge the lawfulness of decisions taken by the state about their immigration and asylum status. Given the experience with employment tribunal fees, we think it is unwise for the Government to have brought forward proposals for fees set at a level to achieve full-cost recovery in the Immigration and Asylum Chamber before having published its review of the implementation of employment tribunal fees.

In the Employment Tribunal, the fees imposed has already seen a reduction in the number of cases brought to the Tribunal, and there is a real risk that with the fee increases proposed for the First-Tier and Upper Tribunals, the number of appeals brought will decrease, not through lack of merits, but simply because appellants can no longer afford to access justice, in effect giving the Home Office carte blanche to make poor decisions with no one to raise any challenges to them.

27 Jun

Brexit: The Aftermath II – A Constitutional Maze

Over the weekend, David Lammy MP made a statement asking for Parliament to ignore the results of the Referendum on 23 June 2016, and “stop this madness”. At first I scoffed at the idea and put it down to someone simply crying over spilt milk, but perhaps his idea merits a thorough analysis.

I want to start with Britain’s entry into the European Community in 1972. The then Prime Minister, Edward Heath, signed the Treaty of Accession on 22 January 1972, which brought Denmark, Ireland, Norway, and the United Kingdom into the European Community. Prior to Mr Heath signing the treaty, Parliament was locked in six days of debate about entry into the European Community in October 1971. It was not until after the treaty was signed that a Bill was introduced to ratify and put into effect EC law, culminating in the European Communities Act 1972, which was given Royal Assent by Her Majesty on 17 October 1972.

Traditionally, the signing of treaties was a power exercised under the Royal Prerogative, and therefore Parliament did not need to ratify the actions of Her Majesty’s Government in ratifying treaties. However, with the Constitutional Reform and Governance Act 2010, the Government was required to publish any treaty that requires ratification or its equivalent, and lay it before Parliament for 21 sitting days. This allows both Houses of Parliament to debate on the contents of the treaty in question, allowing either House to not agree to ratification and cause the Government to issue statements as to why it nonetheless wishes ratification of said treaty.

The Constitutional Reform and Governance Act 2010, however, does not stipulate by what means Parliament will scrutinise any treaty laid before it. Therefore there is, legally, no need for a debate or a vote. Debates will of course take place if an Act is required to ratify the treaty. But the problem with the Brexit process is that to instigate it, the Government does not need to sign any new treaties, but simply declare an invocation of Article 50 of the Treaty of Lisbon.

At first, whilst tweeting with one of my old law lecturers at UCL, I was convinced somewhat that to make such a drastic constitutional change, Parliament would of course need to sanction an Act to allow the invocation of Article 50, after all, implied repeals of constitutional statutes cannot be done (see paragraphs 62 to 64 of Thoburn v Sunderland City Council [2002] 3 WLR 247). And certainly there is some force in contending that many of the EU related statutes are constitutional statutes. Laws LJ states in his judgment at paragraph 62 of Thoburn the following:

In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.

Some commentators have also indicated, as I initially thought in my preliminary view, that Parliament would need to repeal the European Communities Act 1972 before Brexit can happen, but on rethinking about the position, there are actually no statutes, constitutional or otherwise, that would, in my opinion, need to be repealed before the Government could invoke Article 50. Article 50 being invoked does not actually require the repealing of the 1972 Act.

Paragraph 2 of Article 50 states the following:

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

Reading the drafting of that provision, it does not appear that the actual act of leaving the EU is the invocation of Article 50, but rather that is the beginning of the process. Withdrawal from the EU will be upon the completion of negotiations, or at the expiry of two years from the invocation of Article 50 if time is not unanimously extended in accordance with paragraph 3 of Article 50.

No one knows what statutes relating to the EU and any rights arising therefrom would need to be repealed until the negotiations under Article 50 are completed.

The petition to request a second referendum at the time of writing has 3,817,940 signatories. Assuming that all of the signatories are genuine amidst the claims that there is a certain amount of rigging to up the numbers, this has passed the 10,000 threshold requiring Parliament to debate the matter, although how Parliament will respond to such a petition is anyone’s guess. Professor John Curtice is quoted in the Sunday Telegraph of 26 June 2016 as saying “[a]ll that means is that some MPs will say, ‘It’s a terrible shame,’ or others will say, ‘Hallelujah’. Then that’s the end of it.

There is some talk of the Scottish Parliament perhaps being able to withhold consent for a Brexit. although section 28(7) specifically dictates that there is nothing which can prevent the Parliament of the United Kingdom to make laws for Scotland, so it appears that the final say, even if Scotland refuses to consent, would rest with Westminster rather than Holyrood.

Can Parliament do anything to prevent Article 50 being invoked? I am doubtful of that, although I would love to hear any other positions.

25 Jun

Brexit: The Aftermath I – Keep Calm And Carry On?

23 June 2016 will be remembered by the peoples of the United Kingdom (and the peoples of the world) as the day when the United Kingdom began the process of its exit from the European Union, or Brexit as it has now been coined. But what does Brexit practically mean within the immigration context? With the UK heading into such an interesting public and constitutional law territory, I could not resist but start blogging again!

On the day after the Referendum, I have already been asked by a number of EEA clients as to what Brexit means for them. And the answer is that no one actually knows for sure at this moment. The United Kingdom leaving the European Union will involve invoking Article 50 of the Treaty of Lisbon, which will allow a period of up to two years for the negotiations of an exit package. The two years, under the terms of Article 50 can then be further extended, so the time-scale for the United Kingdom’s actual exit from the Union is actually uncertain, although the leaders of the European Union have commented that they want Brexit to be carried out as quickly as possible to lessen any uncertainties surrounding the future of the Union.

What are my predictions though?

In terms of existing EEA nationals and their dependants who are already in the United Kingdom, I personally cannot imagine that they will be affected dramatically by Brexit. The Courts have previously held that changes in policy should not affect those who took advantage of any pre-change policies (see for example the case of HSMP Forum (UK) Ltd., R (on the application of) v Secretary of State for the Home Department [2009] EWHC 711 (Admin)). The government will likely have to formulate some provisions and some alternative form of leave to remain for those who are currently beneficial of a right to reside in the United Kingdom under The Immigration (European Economic Area) Regulations 2006 (as amended). Plus, should we be too punitive in relation to EEA nationals in the United Kingdom, this will also likely have a negative impact on British expats who are currently living in EU member states with reciprocal conditions.

Any rights of EEA nationals entering and working within the United Kingdom post-Brexit will have to be negotiated as part of the United Kingdom’s leaving package. The right of British nationals entering and working an a Union member state will also have to be negotiated. I cannot imagine free movement being something to which the United Kingdom delegation would agree in negotiations in light of how the ability to control our own borders seemed to play such a key role in swinging the Referendum towards Brexit. Whether this will lead to visa requirements between Union members and the United Kingdom, and vice versa, also remains to be seen. Also remains to be seen is how the issue of the Northern Irish / Irish border will be addressed.

The fact of the matter is that it is really too soon to panic at present, and any predictions of what policies may be put in place by the European Union’s remaining 27 member states is merely speculation. As Donald Tusk reminded us all in his statement of 24 June 2016 responding to the Referendum results: until any package is formally agreed, and the United Kingdom actually leaves the European Union, all the present laws of the Union will apply within and to the United Kingdom, including any rights and obligations. For the moment, keep calm and carry on.

I finally want to say that if you were one of the 33,578,016 that turned up to the polling stations, then you should be proud of yourself regardless of which way you voted. What has disappointed me though is the way some people on social media seem to be spouting very vicious vitriol about others who voted differently. Yes, people may have voted differently to what you’d have liked, but that is what democracy is about. Just because someone voted to Remain does not mean they do not love the United Kingdom, or are a traitor. Just because someone voted to Leave does not make them a racist or a xenophobe. It’s time to put aside all the toxicity. The die has been cast, and I think it is time to band together as a nation and try to make the best of what we have now rather than throwing comments of hate around. Change is never easy, but at the same time, it might not actually be as bad as we fear. Let’s see what happens next in the Brexit saga.