Proposals risk insidious erosion of access to justice for those whose needs are most acute.

10 October 2016 marked the day on which significant increases to appeal fees in the First-tier Tribunal (Immigration and Asylum Chamber) (‘FTT’) came into force.  The new fees form part of a wider reform package that will see the introduction of fees for appeals in the Upper Tribunal (Immigration and Asylum Chamber) (‘UT’) for the very first time. The proposals risk an insidious erosion of access to justice for those whose needs are most acute.

The Ministry of Justice’s proposals were almost universally opposed by respondents to the consultation regarding the new arrangements.  That opposition notwithstanding, the secondary legislation giving effect to the FTT proposals entered into force on Monday, 10 October, with UT proposals to be implemented later.  The changes are as follows:

  • The fee for an appeal ‘on the papers’ in the FTT will increase from £80 to £490 (over 600%).
  • For an appeal at an oral hearing, the fee will increase from £140 to £800 (over 500%).
  • An application to the FTT for permission to appeal to the UT will now attract a fee of £455.
  • For the first time, fees will be payable for appeals in the UT: £350 for permission to appeal (where the FTT has refused permission); and thereafter an appeal fee of £510.

The existing exemption regime has been revised, removing the fee requirement from certain tribunal users, such as those who qualify for Legal Aid or asylum support, individuals appealing a deprivation of citizenship decision and children receiving local authority support. In addition, the Lord Chancellor may exercise an ‘exceptional power’ to remit or defer fees.  Newly published guidance indicates that this power is to be delegated to tribunal staff, and that the evidential requirements for meeting the criteria may, in practice, be problematic and onerous for appellants.  For example, even out-of-country appellants must provide certified translations of their evidence, give conversion rates for non-sterling financial information and demonstrate that they have taken ‘all reasonable steps to exhaust alternative sources of funding’,  including by requesting financial assistance from sponsors.

The exemptions will be of little comfort to those who do not qualify but who nevertheless are simply unable to meet the potentially substantial costs of appealing an adverse Home Office decision. By way of example, a non-exempt family of four appellants who do not qualify for Legal Aid (either because they are just above the financial threshold or because their appeals are ‘out of scope’) will face potential tribunal fees of up to £8,460, not including lawyers’ costs. It may thus become practically impossible for those people to vindicate their rights.

Examples of individuals who might be affected include:

  • asylum seekers whose financial means are such that they are just above the threshold for Legal Aid;
  • individuals applying for ‘family reunion’ whose original applications are rejected by the Home Office;
  • individuals appealing certain adverse decisions under the Immigration (European Economic Area) Regulations 1996, including ‘Zambrano carers’; and
  • individuals appealing adverse Home Office decisions on human rights grounds.

The stated rationale for reform is to ‘make sure that HMCTS is adequately funded in order to protect the vital principle of access to justice’. However, the detriment to access to the immigration tribunals – as highlighted by respondents to the Government’s consultation – may, in practice, lead to quite the opposite effect.  It is therefore unsurprising that critics have already questioned whether the changes are unlawful, including by reference to EU law, fundamental human rights and common law principles.  It seems inevitable that the lawfulness of the proposals will ultimately fall to be determined by the courts.

Ben Gaston is a solicitor in the Public Law and Human Rights team at Bindmans LLP.