Two separate sets of fees Guidance have been published catering for Home Office decisions dated between 19 December 2011 and 9 October 2016 and decisions made on or after 10 October 2016.

 

(1)THE T495 TRIBUNAL FEES GUIDANCE

 

This is the Fees Guidance, for Home Office decisions dated between 19 December 2011 and 9 October 2016 – https://formfinder.hmctsformfinder.justice.gov.uk/t495-eng.pdf

If an appeal fee is required then it will cost, for each person appealing, either:

• £80 for an appeal to be determined on the papers provided; or

• £140 for an appeal to be determined at an oral hearing.

Where the appeal does not require a fee to be paid, the ‘Exemptions and Remissions’ section appears on page 4 of the Guidance.

 

In relation to Exceptional Circumstances Remissions, the Guidance provides:

“If your appeal type or personal circumstances are not listed in the exemption and remissions section above but you believe that you are not realistically able to afford to pay your fee, or are facing other exceptional circumstances, you can ask the tribunal’s delivery manager to consider reducing or remitting your fee. This request should be made in writing to the address below.

The delivery manager will generally only grant your request if you are able to demonstrate that you are not realistically able to afford the fee in practice (for example, due to unusually high outgoings), or that there are other circumstances which justify remission of the fee. The circumstances will be considered on a case by case basis.

In considering whether to reduce or remit your fee, the delivery manager will require evidence about your circumstances, including why you are not able to afford your fee, or why there are other exceptional circumstances which justify remission of the fee. You must provide this evidence with your request. The type of evidence that you should provide includes (where relevant): notices threatening legal action due to non-payment of bills or housing costs, details of your income, savings, expenses, or any other relevant information to support your request for an exceptional remission…………

You won’t automatically have your fee reduced or remitted because of your status, for example if you’re unemployed, a seasonal or part-time worker, student or prisoner. You will still be asked to provide evidence to support your application.

In considering an application for an exceptional fee remission we would expect you to demonstrate that you have taken all reasonable steps to exhaust alternative sources of funding. For example, where you have a sponsor supporting your application to enter or remain in the UK we would expect to see evidence demonstrating that those parties are unable to assist you in paying your fee.

If you wish to make an exceptional circumstances application you should clearly mark your envelope ‘Article Seven Remission Application’ and send it to:

First-tier Tribunal (Immigration and Asylum Chamber)

PO Box 6987

Leicester LE1 6ZX

HM Courts & Tribunals Service aims to respond to your application within 14 calendar days of receipt”.

 

The T495 Guidance also provides clarifications in relation to Fee awards, refunds and Home Office Withdrawals.

 

(2)THE T495A TRIBUNAL FEES GUIDANCE

 

The Tribunal Fees Guidance that applies to Home Office decisions made on or after 10 October 2016 is T495A Guidance-https://formfinder.hmctsformfinder.justice.gov.uk/t495a-eng.pdf

If an appeal fee is required then it will cost, for each person appealing, either:

• £490 for an appeal to be determined on the papers provided; or

• £800 for an appeal to be determined at an oral hearing.

Where the appeal does not require a fee to be paid, the ‘Exemptions and Remissions’ section appears on page 4 of the Guidance.

 

In relation to Exceptional Circumstances Remissions, the Guidance provides:

 

“Exceptional Circumstances Remission

If your appeal type or personal circumstances are not listed in the exemption and remissions section above but you believe that you are not realistically able to afford to pay your fee, or are facing other exceptional circumstances, you can ask the tribunal’s delivery manager to consider reducing or remitting your fee. This request should be made in writing to the address below.

The delivery manager will generally only grant your request if you are able to demonstrate that you are not realistically able to afford the fee in practice (for example, due to unusually high outgoings), or that there are other circumstances which justify remission of the fee. The circumstances will be considered on a case by case basis.

In considering whether to reduce or remit your fee, the delivery manager will require evidence about your circumstances, including why you are not able to afford your fee, or why there are other exceptional circumstances which justify remission of the fee. You must provide this evidence with your request. The type of evidence that you should provide includes (where relevant): notices threatening legal action due to non-payment of bills or housing costs, details of your income, savings, expenses, or any other relevant information to support your request for an exceptional remission.

You won’t automatically have your fee reduced or remitted because of your status, for example if you’re unemployed, a seasonal or part-time worker, student or prisoner. You will still be asked to provide evidence to support your application.

In considering an application for an exceptional fee remission we would expect you to demonstrate that you have taken all reasonable steps to exhaust alternative sources of funding. For example, where you have a sponsor supporting your application to enter or remain in the UK we would expect to see evidence demonstrating that those parties are unable to assist you in paying your fee.

If the delivery manager does not grant your exceptional fee remission request then you can appeal this decision to the operational manager. The operational manager will then consider any evidence that you have submitted previously and any further information you submit with your appeal. Once the operational manager has made his or her final decision we will not be able to consider the matter any further.

………………

If you wish to make an exceptional circumstances application you should clearly mark your envelope ‘Article Seven Remission Application’ and send it to:

First-tier Tribunal (Immigration and Asylum Chamber)

PO Box 6987

Leicester LE1 6ZX

HM Courts & Tribunals Service aims to respond to your application within 14 calendar days of receipt”.

 

The T495A Guidance also provides clarifications in relation to Fee awards, refunds and Home Office Withdrawals.

 

(3)CONTRAST WITH THE OUTGOING TRIBUNAL FEES GUIDANCE

 

The Tribunal fees guidance issues on 19 December 2011 simply provided as follows in relation to applications for remission or reduction of fees:

 

“Applications for remission or reduction of fee under article 7 of the First tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

If you consider that, due to exceptional circumstances, you are unable to pay the fee for your appeal, you can apply to have your fee remitted or reduced.

You should make every attempt to pay your fee before making your application, this includes payment being made by a relative or in country sponsor, or though another form of support such as Legal Aid. If you wish to make an application, you should do so in writing, specifying the reasons why your exceptional circumstances prevent you from paying your appeal fee and including appropriate supporting evidence.

Your application will be considered by an administrative manager within the tribunal and we aim to respond to your application within 10 days of receipt.

You should clearly mark your envelope ‘Fee Remission Application’ and send it to

Fees Investigation Team

First-tier Tribunal (Immigration and Asylum Chamber)

PO Box 6987

Leicester LE1 6ZX”

 

(4)COMPARISONS WITH THE HOME OFFICE FEE WAIVER POLICY

 

If the Government would have got away with simply imposing parts of  the Home Office Fee Waiver Policy exactly as it is in current circumstances then they could have done so. The applications covered by the Fee Waiver Policy  are applications for leave to remain under the 10-year partner, parent or private life route on an FLR(FP) form, where the applicant claims that refusal of that application for leave to remain would breach his or her rights (or the rights of other specified persons) under Article 8 ECHR (the right to respect for private and family life), or applications for leave to remain on the basis of an ECHR article other than Article 8 made on an FLR(O) form. An applicant who cannot evidence destitution or show that they would be rendered destitute by paying the  relevant Home Office fees will not normally qualify for a fee waiver. However, there may be exceptional circumstances which mean that a fee waiver should be granted. The Home Office  Fee Waiver  Policy however makes it clear,  “The applicant will need to demonstrate that there is something exceptional about their financial circumstances and ability to pay the fee such that a fee waiver should be granted, despite the fact that they are not destitute and would not be rendered destitute by payment of the fee. The expectation is that exceptional circumstances will be rare”.

 

The Home Office fee waiver policy provides as follows in relation to the need to evidence exceptional circumstances:

 

“5.0 Income and assets

The caseworker must take into account:

Income:

•  from employment or self-employment;

•  from non-employment sources;

•  of the applicant’s spouse/partner or parent(s);

•  from welfare benefits/tax credits received by the applicant and/or their spouse/partner or   parent(s); and

•  from family or friends.

Assets:

•  cash;

•  money held in a bank account, such as a savings or current account;

•  investments;

•  land or property;

•  cars or other vehicles;

•  goods held for the purpose of a trade or other business; and

•  jewellery and other personal possessions (except for wedding jewellery such as the applicant’s engagement and wedding rings).

5.1 Employment and self-employment income

Applicants should provide full details of their employment, including how much and how often they are paid. They should include evidence such as pay slips, tax returns, details of their own business if they are self-employed, etc.

5.2 Illegal working  

If a person discloses in their fee waiver application that they are, or have been, receiving income through working, but they do not have permission to work, their earnings and any cash or savings derived from this work will be deemed an asset when assessing eligibility for a fee waiver. The applicant should subsequently be asked to explain why they are working illegally and informed that they may be committing a criminal offence and should cease working immediately.

5.3 Welfare benefits and tax credits

If an applicant (e.g. on account of their previous National Insurance contributions) and/or their spouse/partner or parent(s) is in receipt of welfare benefits and/or tax credits, this support should be taken into consideration as income when assessing eligibility for a fee waiver.

5.4 Support from family or friends

Support provided to the applicant or a dependent family member by family or friends must be counted towards the applicant’s income or considered in assessing their income and outgoings. Such support could be financial or in terms of meeting essential living needs, such as providing food and paying bills, or providing accommodation.

If this support is of a limited duration or is about to cease, the applicant must provide a full explanation of why this is so, along with relevant documentary evidence. An example of the sort of documentary evidence which could be provided might include a signed statement from the person who has been providing them with support explaining why they are no longer able to do so and documentary evidence of that person’s financial situation showing the support provided, such as regular payments to the applicant’s bank account, and demonstrating that the person’s financial circumstances have changed such that they cannot continue to support the applicant.

5.5 Assessing joint income and assets with a spouse/partner or child/parent

Where an applicant has a spouse or partner, their joint income and assets should be taken into account. Where the applicant is a child, the joint income of the applicant and their parent(s) should be taken into account.

5.6 Assets

Assets can be in the UK or overseas.

If an applicant or a dependent family member has assets, this may indicate the intentional deprivation of capital (e.g. if the applicant has bought a personal possession that is clearly not essential to their living needs). Applicants in this position may be able to raise funds by selling the asset.

Caseworkers will need to consider on a case-by-case basis whether the value of asset is reasonably realisable”.

 

The new Tribunal Fees Guidance does not quite break it down as above, however what the Fees Guidance requires in relation to Exceptional Circumstances Remission requests, can be argued to be just about the same on a practical basis in outcome, save that the Fees Guidance has been currently drafted in deliberately generalised and vague terms, ie, “the type of evidence that you should provide includes (where relevant): notices threatening legal action due to non-payment of bills or housing costs, details of your income, savings, expenses, or any other relevant information to support your request for an exceptional remission…………

You won’t automatically have your fee reduced or remitted because of your status, for example if you’re unemployed, a seasonal or part-time worker, student or prisoner. You will still be asked to provide evidence to support your application.

In considering an application for an exceptional fee remission we would expect you to demonstrate that you have taken all reasonable steps to exhaust alternative sources of funding. For example, where you have a sponsor supporting your application to enter or remain in the UK we would expect to see evidence demonstrating that those parties are unable to assist you in paying your fee”.

 

It therefore appears  likely that Appellants  who would otherwise   be able to show exceptional circumstances  might  face  problems in evidencing those  circumstances. On the basis of  current guidance, simply providing  a letter of support from a friend  or relative confirming provision of accommodation and food  may not be sufficient, however in most cases that is all that some Appellants might be  in a position to provide due to their circumstances.

 

CURRENT VIEW?

 

Some people might  have expected  more in relation to the new Guidance than has currently been published- may be there is more to come……….or perhaps the guidance is just the length it is to cater for the need to amend it  following future challenges?

 

The most useful observation is really not quite whether the guidance makes short and “ easy reading” but that clearly an injustice couched in terms that lay person can readily grasp, is still injustice served up nonetheless.

 

My immediate question: How speedily can judicial review proceedings/challenges proceed underway to resist these exorbitant appeal fee increases?