The Increase to Immigration Tribunal Appeal Fees: What Appellants Need to Know

In relation to Tribunal Fees, the Government Response to the consultation on proposals for the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber), was  published  on 15  September 2016.

The document sets out the Government Response to the consultation, Consultation on proposals for the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber), published on 21 April 2016.

The consultation sought views on proposals to:

• increase the fees charged in the First-tier Tribunal to full cost recovery levels for the appeals in which the government charge fees;

• to introduce fees for permission to appeal applications (whether made in the First-tier or Upper Tribunal) at full cost recovery levels; and

• to introduce fees for appeal hearings in the Upper Tribunal at full cost recovery levels.

The First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016 No. 928 (L. 16) comes into force on 10th October 2016.  The 2016 Order  amends the First-Tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011 No. 2841  in relation to the  following:

• increasing the fees payable for appeals to that Chamber to full cost recovery levels for those subject to a fee.

• extending the fee exemption scheme to appellants who have had the requirement to pay the fee for their immigration application waived by the Home Office on the basis that they are destitute, or would be made destitute by paying that fee; specifically, where the requirement to pay the fee would be incompatible with the applicant’s ECHR rights. The exemption will only apply where the person is appealing the outcome of the same visa application for which they received the Home Office destitution waiver.

• in December 2015, the government committed to introduce additional exemptions for those appealing decisions to revoke their refugee or humanitarian protected status;those with parental responsibility for children receiving support from local authorities under section 17 of the Children Act 1989; and children who are being housed by alocal authority under section 20 of the Children Act 1989.The 2016 order gives effect to those stated  commitments.

• The 2016 Order also clarifies when a person may be entitled to a refund of their appeal fee on the basis that their appeal has been ‘determined without a hearing’, in line with the original policy intention at the point that fees were first introduced into the Tribunal in 2011.

• the Government has decided to produce revised, clearer guidance on the use of the Lord Chancellors power to reduce, remit or defer fees where he considers there are exceptional circumstances which justify doing so. This guidance will be published at the time the new fees come into effect.

Relevant therefore to the fee increases are the accompanying  considerations  which Appellants might need to know prior to or during the course of an appeal:

• scheme of fee exemptions;

• reduction or remittal of the appeal fee;

• striking out of an appeal for non- payment of the fee and reinstatement of the appeal;

• fee awards

(1)THE FEE INCREASE IN THE FIRST TIER TRIBUNAL

A fee is payable in respect of an appeal to the First-tier Tribunal where the appeal relates to an immigration or asylum matter. The fee is payable by or in respect of each appellant on the date on which the Notice of Appeal is given.

Article 3 of the 2011 Order currently provides that the following appeal fee is payable —

• where the appellant consents to the appeal being determined without a hearing, £80(paper hearing); or

• where the appellant does not consent to the appeal being determined without a hearing, £140( oral hearing).

Article 4 of the 2016 Order  increases the fees payable for appeals heard in the First-tier Tribunal. The fee for a  paper hearing  will,  on 10 October 2016,  increase to £490.00 and that  in relation to an  oral hearing  to  £800.00

(2)THE FEE EXEMPTION SCHEME

The Government Response of September 2016  provides, among other  matters as  follows:

“55. As the consultation indicated, it is the Government’s clear intention to share the burden of funding as fairly as possible therefore we will continue to exempt fees in the First-tier Tribunal for those people in particularly vulnerable positions. This includes:

• those who qualify for legal aid or asylum support;

• those who are appealing against a decision to deprive them of their citizenship; and 

•  those children bringing appeals to the tribunal who are being supported by a local authority.

56. In addition, we confirmed that while we intend to remove the exemptions relating to rights of appeal that no longer exist following the changes made by the Immigration Act 2014, we will include a ‘savings provision’ that allows those exemptions to continue to apply to cases that began under the old system at a time when those decisions were appealable.

57. We also made clear that we would stand by our commitment, given in December 2015, to extend the exemptions scheme to cover:

• those people appealing decisions to revoke their refugee or humanitarian protected status;

• those with parental responsibility for, children receiving support from local authorities under section 17 of the Children Act 1989 (or any equivalent legislation in Scotland, Wales or Northern Ireland); and

• children who are being housed by a Local Authority under section 20 of the Children Act 1989 (or any equivalent legislation in Scotland, Wales or Northern Ireland).

58. The consultation paper sought views on further exemptions and we specifically asked whether respondents thought we should consider exempting those people in receipt of a Home Office destitution waiver as set out in chapter 1 of this document.

59. After careful consideration of the responses, the Government is minded to proceed with this exemption on the basis that it believes it is right as a matter of principle that those appellants who have already been assessed as destitute by the Home Office should not be put to the expense of paying a tribunal fee. We will therefore extend our exemptions to appellants who have had the requirement to pay an application fee waived by the Home Office on the basis that they are destitute, or would be made destitute by paying that fee; specifically, where the requirement to pay the fee would be incompatible with the applicant’s ECHR rights. Where such a person brings an appeal against the outcome of that fee-exempt application, they will not be required to pay a tribunal fee.

63. In addition to seeking views on possible exemptions, we also asked respondents whether the same exemptions scheme that applies in the First-tier Tribunal should apply equally to the Upper Tribunal. We agree with the majority of respondents who addressed this point that there was no obvious reason why proceedings in the Upper Tribunal should be treated any differently to those in the First-tier. Therefore, all exemptions within the First-tier will be replicated in the Upper Tribunal alongside any others that we have outlined above”.

Article 5 of the 2016 Order therefore amends the scheme of fee exemptions available in the Immigration and Asylum Chamber, in particular, to reflect changes made to appeal rights by the Immigration Act 2014 , and to introduce a new exemption for appellants who are excepted from the requirement to pay certain fees in respect of their immigration applications to the Home Office. It also provides that certain appeals that continue to be brought in accordance with provisions saved by the Immigration Act 2014 will remain subject to the former scheme of fee exemptions and remissions.

Current Position:

The 2011 Order having regard to Article 5 provides:

No fee is payable for an appeal against a decision made under—

• section 2A of the 1971 Act (deprivation of right of abode);

• section 5(1) of the 1971 Act (a decision to make a deportation order);

• paragraphs 8, 9,10, 10A or 12(2) of Schedule 2 to the 1971 Act (a decision that an illegal entrant, any family or seaman and aircrew is or are to be removed from the United Kingdom by way of directions);

• section 40 of the British Nationality Act 1981 (deprivation of citizenship);

• section 10(1) of the 1999 Act (removal of certain persons unlawfully in the United Kingdom);

• section 76 of the 2002 Act (revocation of indefinite leave to enter or remain in the United Kingdom);

• section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave);

• regulation 19(3) of the Immigration (European Economic Area) Regulations 2006 (a decision to remove an EEA national or the family member of such a national); or

• an appeal to which Part 2 of the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 applies.

• No fee is payable where, at the time the fee would otherwise become payable, the appellant is, under the 1999 Act— (b)provided with temporary support under section 98.

• (a)a “supported person” as defined in section 94(1); or

• No fee is payable where, for the purpose of proceedings before the Tribunal, the appellant is in receipt of— (b)legal aid under Part 2 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981; or

• (c)civil legal aid or advice and assistance under the Legal Aid (Scotland) Act 1986.

• (a)funding provided by the Legal Services Commission, established under section 1 of the Access to Justice Act 1999, as part of the Community Legal Service;

• No fee is payable where the appellant is the person for whose benefit services are provided by a local authority under section 17 of the Children Act 1989.

• Where by any convention, treaty or other instrument entered into by Her Majesty with any foreign power it is provided that no fee is required to be paid in respect of any proceedings, the fees specified in this Order are not payable in respect of those proceedings.

The position from 10 October 2016:

From 10 October 2016 an exemption applies to the following:

No fee is payable for an appeal against a decision made under—

• section 40 of the British Nationality Act 1981 (deprivation of citizenship);

• regulation 19(3) of the Immigration (European Economic Area) Regulations 2006 (exclusion and removal from the United Kingdom);

• an appeal under section 82(1)(c) of the Nationality, Asylum and Immigration Act 2002 (revocation of protection status).

A new Article 5(1A) provides:

No fee is payable for a relevant appeal brought by an appellant who has been excepted from the requirement to pay an application fee under the 2016 Regulations in accordance with the following exceptions—

• exception 4.5 (application by person physically present in UK but liable to immigration detention where the requirement to pay the fee would be incompatible with the person’s Convention rights) in Table 4 of paragraph (2) of Schedule 1 to those Regulations; or

• exception 9.4 (specified human rights applications) in Table 9 of paragraph (2) of Schedule 2 to those Regulations.

A new Article 5(1B) provides that for the purposes of this article, a “relevant appeal” is an appeal against a decision to refuse the application in respect of which the appellant was excepted from the requirement to pay a fee under the 2016 Regulations.

The amended Article 5(4) provides:

No fee is payable where the appellant is—

• a child for whose benefit services are provided by a local authority under—(ii)section 22 of the Children (Scotland) Act 1995 (promotion of welfare of children in need); or

• (iii)article 18 of the Children (Northern Ireland) Order 1995 (general duty of authority to provide personal social services for children in need, their families and others);

• (i)section 17 of the Children Act 1989((provision of services for children in need, their families and others);

• a child for whom provision is being made by a local authority for the purpose of meeting the child’s needs under section 37 of the Social Services and Well-being (Wales) Act 2014 (duty to meet care and support needs of a child);

• a person who has parental responsibility for a child described in sub-paragraph (a) or (b); or

• a child for whom accommodation is provided under—(ii)section 76 of the Social Services and Well-being (Wales) Act 2014 (accommodation for children without parents or who are lost or abandoned etc.);

• (iii)section 25 of the Children (Scotland) Act 1995 (provision of accommodation for children, etc.); or

• (i)section 20 of the Children Act 1989 (provision of accommodation for children: general);

• article 21 of the Children (Northern Ireland) Order 1995 (provision of accommodation for children: general).

• The amendments made by paragraph (1) do not apply in the case of an appeal against a decision in relation to which the provisions mentioned in article 1(2)(e) of the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 are continued in effect by article 9 of that Order.

(3) TRANSITIONAL PROVISIONS

Articles 7 and 8 of the 2016 Order  provide that the changes made by the  2016  Order, aside from in relation to refunds, only apply to decisions that were taken on or after the coming into force date, i.e  10 October 2016.

(4)UPPER TRIBUNAL PERMISSION FEE INCREASES INTENDED TO BE INTRODUCED IN FUTURE

The Government Response of September 2016  provides:

“65. We will aim to implement our proposals in respect of the fee increases in the First-tier Tribunal and the changes to the exemptions scheme in that tier as soon as possible. However, our proposals for new fees in the Upper Tribunal and permission to appeal applications will be implemented on a slightly longer timetable. This is to allow sufficient time to seek the necessary procedural rule changes referred to in the consultation document and also enable us to make sure that we ready for a smooth operational transition”.

A new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal will apply.

There will be two new fees for the Upper Tribunal. In permission to appeal applications issued in the Upper Tribunal where permission has been refused initially in the First-tier, the  new fee of £350  will  be charged. Where permission is granted, either by the First-tier or the Upper Tribunal, a fee for the appeal hearing of £510 will be charged.

(5) REDUCTION, REMITTAL OR  DEFFERAL OF THE APPEAL FEE

The Government Response of September 2016  provides:

“62. We do, however, recognise that the Home Office destitution waiver scheme does not apply to out of country appellants. Appellants in that situation who are facing significant financial hardship however, will still have recourse to the Lord Chancellor’s exceptional power to remit or defer fees. We intend, as suggested by some respondents to the consultation, to provide revised clearer guidance on the use of the exceptional power. This should provide greater clarity to any appellant who is considering making an application for a remission or deferral under this power.

64.In conclusion, the Government believes that this proposed package of fee increases will enable us to secure the funding of the Immigration and Asylum Chambers of both the First-tier and Upper Tribunal. Whilst, at the same time protecting, access to justice and the most vulnerable appellants through extension of the fee exemption scheme and further guidance around the Lord Chancellor’s exceptional power to reduce or remit fees”.

Currently, Article 7 of the 2011 Order provides that the  fee may be reduced or remitted where the Lord Chancellor is satisfied that there are exceptional circumstances which justify doing so.

(6)STRIKING OUT OF AN APPEAL FOR NON- PAYMENT OF FEE AND REINSTATEMENT

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, provides as follows in relation to Rule 7:

Where the Tribunal is notified by the Lord Chancellor that a certificate of fee satisfaction has been revoked, the appeal shall automatically be struck out without order of the Tribunal and the Tribunal must notify each party that the appeal has been struck out.

Where an appeal has been struck out, the appeal may be reinstated if—

• the appellant applies to have the appeal reinstated; and

• the Lord Chancellor has issued a new certificate of fee satisfaction.

An application for reinstatement must be made in writing and received by the Tribunal within 14 days, or if the appellant is outside the United Kingdom within 28 days, of the date on which the Tribunal sent notification of the striking out to the appellant.

(7)FEE AWARDS

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, provides as follows in relation to Rule 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:

• any fee paid under the Fees Order that has not been refunded; and

• any fee which the appellant is or may be liable to pay under that Order.

Provision for a “fee award” currently relates to the First Tier Tribunal. The making of an award is to be decided by the Immigration Judge on the evidence before him and dealt with in the determination following the decision on outcome. Where however  the Upper Tribunal sets aside a decision of the First Tier  Tribunal Judge and remakes it in favour of the appellant, the First Tier  award decision will fall away.

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. 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.

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 First Tribunal 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. The Judge must make a decision in accordance with the principles of proportionality, taking into account all available information at the date of the hearing. Brief reasons should be given for a fee award decision (Joint Presidential Guidance, Fee Awards In Immigration Appeals, December 2011- the  guidance was  issued to assist Judges who have to decide on fee awards).

Conclusion:

As per the Explanatory Memorandum to the 2016 Order:

“9.1 Her Majesty’s Courts and Tribunal Service will update its guidance on fees payable in line with these amendments. Forms and leaflets will also be amended to reflect the changes. In addition, the revised guidance on the use of the Lord Chancellors power to reduce or remit fees will be published at the time the new fees come into effect”.

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 in relation to Rule 2 provide that the overriding objective of the Rules is to enable the Tribunal to deal with cases fairly and justly. Dealing with a case fairly and justly includes dealing with the case in ways which are proportionate to the anticipated costs and the resources of the parties and of the Tribunal ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.  It remains to be seen whether in practice, as opposed to mere theoretical inclusions in statutory instruments,  these objectives  will indeed  materialise  having regard to the forthcoming  changes on  10 October 2016.