Coming Full Circle: Scrapping Of The Recent Immigration Tribunal Appeal Fee Increase

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u-turn

Only a month and two weeks after the coming into force of the massive increase to the immigration Tribunal fees, the Government announced suddenly on 25 November 2016 that it was abandoning the rise of up to 500% in immigration tribunal fees.

The First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) (No. 2) Order 2016 No. 1149,  came into force on 29 November 2016.   The Order amends the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011 (S.I. 2011/2841).  It reduces the fees payable for appeals heard in the Immigration and Asylum Chamber of the First-tier Tribunal, thereby reinstating the fees that were payable prior to the coming into force of the First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016 (S.I. 2016/928).  Where an appellant consents to an appeal being determined without a hearing, the new fee is £80 (formerly £490). Where the appellant does not consent to the appeal being determined without a hearing, the fee is £140 (formerly £800). The new fees will be payable in respect of a notice of appeal given to the First-tier Tribunal on or after the 29th November 2016.

Although the Government stated  last week that they had “listened to the representations” received on the current fee levels,  of note  in the appreciation  and placing of contextual regard   to the  seeming sudden u- turn by the Government  are the following  Reports:

  • Courts and Tribunal Fees Report of the Justice Committee of June 2016

  • The Government’s Response of November 2016

THE APPEAL FEES REGIME IN THE IMMIGRATION AND ASYLUM CHAMBER

 

In December 2011, the Government introduced appeal  fees for the first time in the Immigration and Asylum Chamber  of the First Tier Tribunal.

For Home Office decisions dated from 19 December 2011 for each person appealing, the following appeal fees were imposed:

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

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

On 21 April 2016, the Government published proposals to increase appeal fees again, this time to full cost-recovery level, in the Immigration and Asylum Chamber of the First Tier Tribunal. The Government also consulted on introducing fees for the first time for appeals in the Immigration and Asylum Chamber of the Upper Tribunal and for permission applications in both the First Tier Tribunal and Upper Tribunal.

 

The Government proposed  to  increase fees in the First-tier Tribunal from £80 to £490 for an application for a decision on the papers and from £140 to £800 for an application for an oral hearing. There was  also a proposal to  introduce  a new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal. The Consultation also stated that the government  was  proposing 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 proposal was   that a new fee of £350 should be charged, stated to  reflect the full cost of these proceedings. Where permission was  granted, either by the First-tier or the Upper Tribunal, the Government proposed  a fee for the appeal hearing of £510. Additionally, the Government also consulted on a proposal to add an exemption from fees based on the Home Office destitution waiver policy.

 

On 15 September 2016, was published the Government’s response to the consultation confirming  the Government’s  intention to raise fees to full cost levels in the First-tier Tribunal, and to introduce fees for applications for permission to appeal and for appeals in the Upper Tribunal.

 

The increases to fees in the First-tier Tribunal came into effect on 10 October 2016.

Therefore up until 25 November 2016, for Home Office decisions dated 10 October 2016 and after, the applicable appeal fees for each person appealing were:

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

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

REPORT OF THE JUSTICE COMMITTEE OF JUNE 2016

 

The House of Commons Justice Committee published its Second Report of Session 2016–17, Courts and tribunals fees on 20 June 2016, as HC 167. The Committee reported on Courts and tribunals fees in June 2016 following an eleven-month inquiry.

 

In summary, the Justice Committee considered the following within their Report:

  • The changes to courts and tribunal fees as the subject of their Report, and the fee remission system considered to be the main safeguard for access to justice for those of limited means.

  • General matters which apply to the various elements of the Government’s fee reform programme, including the objectives of the programme and the extent to which they are being achieved, the principles of cost-recovery, enhanced fees and cross-subsidisation of different components of the courts and tribunals system, the adequacy of the research and evidence base on which the Government has founded its reforms, and the general effectiveness of fee remission in safeguarding access to justice.

  • Further matters of concern in relation to particular parts of the fees regime: fees for employment tribunals; enhanced fees for divorce petitions and for money claims; and fees in the Immigration and Asylum Chamber.

  • General proposals presented for reform of the structure of fees and fee remission.

The Justice Committee made it clear within their report that they had limited their consideration to the most salient and controversial parts of the Government’s reform of court fees, and focused on the extent to which it is possible to determine whether the Government’s objectives, in particular the objective of maintaining access to justice, have been met or are likely to be met.

 

Pertinently, the Justice Committee noted that in April 2016, the Ministry of Justice published proposals to increase fees again, this time to full cost-recovery level, in the Immigration and Asylum Chamber. The Committee observed that they had not taken evidence on these specific proposals but would comment on them taking into account the evidence they received in the context of the previous changes to fees introduced in the Chamber.  The following paragraphs  within the Report are relevant:

 

“45.In this Report we are concerned with the principles behind the Government’s policies as well as the practical effects of those policies. …….Some degree of financial risk is an important discipline for those contemplating legal action, and a contribution by users of the courts to the costs of operating those courts is not objectionable in principle: the question is what is an acceptable amount to charge taking into account the need to preserve access to justice. The answer to that question will vary from jurisdiction to jurisdiction, and between different types of case. Factors which need to be taken into account include the effectiveness of fee remission, the vulnerability of claimants and their means in comparison with respondents—which may pose particular problems of inequality of arms when individuals or small businesses are seeking to uphold their rights against the state or major companies—and the degree of choice which litigants have in whether to use the courts to resolve their cases and achieve justice. There should be a clear and justifiable relationship in the courts and tribunal fee system between these factors and the degree of financial risk, through the size of fee, that litigants should be asked to bear. 

 

46.We recognize that the principles of cost-recovery and of enhanced fees have been accorded statutory authority by Parliament. There is no doubt that Ministers are empowered, subject to parliamentary approval of the necessary delegated legislation, and subject to other provisions in the relevant primary legislation, to introduce such fees for litigants. However, the introduction of fees set at a level to recover or exceed the full cost of operation of the court requires particular care and strong justification. Where there is conflict between the objectives of achieving cost-recovery and preserving access to justice, the latter objective must prevail. 

 

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.

THE GOVERNMENT’S RESPONSE TO THE COURTS AND TRIBUNALS FEES REPORT -9 NOVEMBER 2016

 

The Government responded to the June 2016  Report’s key recommendations and conclusions, including on employment tribunals, divorce petition fees, and fees for immigration and asylum appeals. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/567216/governments-response-to-the-justice-committees-second-report-of-session-2016-17-web.pdf

 

“Fees for immigration and asylum appeals

We express the view 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 Chambers before having published its review of the impact of implementation of employment tribunal fees.

 We note the Committee’s view but we disagree that it was unwise to bring forward proposals for increasing fees in the Immigration and Asylum Chambers.

There are a number of reasons why we believe that the proposals for fees in the Immigration and Asylum Chambers are not directly comparable with the position in the Employment Tribunals:

  • the Employment Tribunals deal with private workplace disputes whereas the Immigration and Asylum Chambers deals with appeals against the decisions of the Home Secretary on immigration and nationality;

  • prior to the introduction of fees in July 2013, access to the Employment Tribunals was provided free of charge, whereas fees have been charged in the First-tier Tribunal of the Immigration and Asylum Chamber since December 2011; and

  • one of the aims of introducing fees in the Employment Tribunals was to encourage people to use Acas’s free conciliation service. This does not mean that we have not taken the impact of Employment Tribunals and other fees into account in developing these proposals. We regularly review the impact of our fees policy and adapt our approach to forecasting income in the light of experience. Our estimates include better, evidence based, assumptions about the estimated impact of fee increases on demand, and these are incorporated into our fee income forecasts.

We do not have sufficient evidence to come to a firm conclusion on whether the standard courts and tribunals fee remission system should be applied in the Immigration and Asylum Chambers; but it is important that the matter should be reviewed to ensure a proper balance between the desirability of a standardised system and the difficulties this could cause in immigration and asylum cases.

The fee remissions and waivers policy in the Immigration and Asylum Chambers has been considered as part of the consultation on increasing fees for proceedings in these chambers to full cost recovery levels. On 15 September 2016, we published the Government response to the consultation confirming our intention to raise fees to full cost levels in the First-tier Tribunal, and to introduce fees for applications for permission to appeal and for appeals in the Upper Tribunal. The increases to fees in the First-tier Tribunal came into effect on 10 October 2016, and the introduction of fees in the Upper Tribunal and for applications to the First-tier Tribunal for permission to appeal to the Upper Tribunal will be introduced when Parliamentary time allows.

In the Government response, we also announced that we are extending the fee waiver and remissions policy, so that those who are in receipt of a Home Office fee waiver on the grounds of destitution will also have their tribunal fee waived. We have decided not to extend HMCTS’s standard fee remission scheme to proceedings in the Immigration and Asylum Chambers in view of the administrative difficulties it raises. Further details are set out in the Government response to consultation”.

THE GOVERNMENT ‘S POSITION ON 25  NOVEMBER 2016

 

The Government’s surprising  axing of the appeal fee  increase of 10 October 2016  was announced by Sir Oliver Heald, the Minister of State for Courts and Justice via an Update on Courts and Tribunals: Written statement – HCWS284– http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2016-11-25/HCWS284

 

“We have listened to the representations that we received on the current fee levels and have decided to take stock and review the immigration and asylum fees, to balance the interests of all tribunal users and the taxpayer and to look at them again alongside other tribunal fees and in the wider context of funding for the system overall.

“From today all applicants will be charged fees at previous levels and we will reimburse, in all cases where the new fees have been paid, the difference between that fee and the previous fee.”

CONCLUSION

 

The Government is still intent  upon  revisiting the issue of  the current fee levels and will in due course  review  the immigration and  asylum fees, however  it is hoped that whatever  proposals next emanate from them in this regards, they will not be as  unrealistically  jaw dropping as those proposed  in April 2016,  which shockingly  did take  effect if only for  a short while.

 

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