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.