Immigrants appealing through the courts for a right to remain in the UK will soon face a huge increase in procedural costs after the government announced fee hikes of over 500% for some types of appeal through the immigration and asylum tribunals.
There are two stages of appeal against immigration decisions by the Home Office, such as refusal to grant or extend leave as a student, worker, family member or for refugee family reunion, refusal of asylum, or a decision to deport someone. The first way to appeal is to the First-tier Tribunal. After a decision by a judge in this tribunal, either the appellant or the Home Office can apply for permission to appeal against the decision at the second level – the Upper Tribunal, but only on the basis that the First-tier judge made an error of law in the judgement.
From October 10, the fee for an oral hearing in the First-tier Tribunal will rise from £140 to £800 per person. At an as-yet unspecified date there will also be a brand new fee of £455, just for applying for permission to appeal to the Upper Tribunal if the first judge dismisses the appeal. There will then be another new fee of £510 to have that appeal heard if permission is granted.
The tribunals have the power to order repayment of the fee if the appeal succeeds, but appeals can drag on for two years or more. This will now leave even a successful appellant significantly out of pocket for a long time – up to £2,115 to reach an Upper Tribunal hearing. Double that for a couple appealing together. Treble it if they have a child. The government believes the new fees will generate £34m in income per year – but this of course depends on how many people are put off appealing by the fees.
Reducing access to justice
This potentially denies access to justice to large numbers of people who have been told they need to leave the UK, the vast majority without having committed any offence. There have always been some exemptions from these fees which will continue – for example for people receiving legal aid, those appealing against asylum decisions or revocation of citizenship, and children in the care of a local authority. Those with a Home Office fee waiver, which may be given to people who are destitute, are also exempted.
But in my recent research I found that young people who sought asylum as children and have reached the age of 18 often face particular problems. If there is no longer a good asylum claim because they are adults or because the conditions in their home country have changed, but they have built a life for themselves in the UK, they cannot get legal aid to apply to stay on that basis. They are no longer in local authority care so do not qualify for a fee exemption on that basis. With the new fees, not only will they have to do without a legal representative, they may be unable to appeal because of the prohibitive cost.
The new fees might be less important if the Home Office made well-reasoned decisions in the first place. But in the quarter between April and June 2016, statistics from the tribunals show 42% of appeals to the First-tier succeeded, as did 32% of those to the Upper Tribunal. Yet, only 22% of unrepresented appellants win at the first stage, suggesting that at least some of those who lost appeals might have won with the help of a legal adviser. The poor quality of decision-making is perhaps not surprising, given that some of it has been delegated to gap-year students with five weeks’ training.
Rising costs all round
The government consulted on the fee rises. Out of 147 responses, 142 opposed the increase. The five who agreed with the changes said the new fees would discourage “unmeritorious appeals”. But I’d argue that they are at least as likely to discourage meritorious appeals, especially those by families who have to pay a fee for several family members.
Most courts and tribunals charge a fee, but lawyers believe this is the only area of justice in which users are expected to pay the full cost of the tribunal proceedings. There doesn’t appear to have been any attempt to justify this apparently discriminatory approach in the impact assessment for the new fees.
This comes on top of several years of large rises in Home Office fees for applying for permission to enter and remain in the UK. In October 2010, the government decided that some application fees should far exceed the actual cost of processing the application, in order to pay for other parts of the system such as asylum and, in fact, the appeals system. The fee for a citizenship application was set at 437% of the actual cost of processing it. The fairness of such a system is highly questionable.
Add to all this the fact that rights to appeal decisions have been limited by the Immigration Act 2014, so that many can only be exercised from outside the UK. That increased £800 fee is for an appeal hearing which the actual appellant may not even be able to attend – only the witnesses and a lawyer, if they can afford one.
The appeal tribunal considers whether the Home Office has made an incorrect legal decision. It can only order enforcement of rights and entitlements given by the law and immigration rules. Whatever you think about migration as an issue, people are entitled to fairness in the administration of the laws and rules that parliament creates, and access to the courts where fairness has broken down. The idea that some people should pay disproportionately for that access, in effect because they are migrants, suggests the UK is creating a chauvinistic kind of justice.