The government has been widely criticised for introducing a payment regime for immigration and asylum work that essentially amounts to a cut for solicitors barely coping with existing fee levels.
Yesterday the Ministry of Justice laid a statutory instrument before parliament introducing a new £627 asylum fixed fee, which comes into force on 8 June. Payment under the existing scheme is £227. Under the new system, the appellant’s skeleton argument must be prepared earlier.
The Immigration Law Practitioners Association said the new fee seems more generous for lower-value cases, but ‘the reality is that… the majority of files will exceed the new fixed fee and will therefore lose out financially as a result of this change’. At the stage where the appeallant’s skeleton argument is required, there is no indication of what fee may be available to counsel.
The association said: ‘Previously, the appeal would be likely to go to a full hearing, and the firm would have received £567 for this work (for asylum), and the barrister £302 for the hearing. Now, where the solicitor has prepared the case in full and the barrister has drafted the skeleton argument at an early stage as required, the total fee available is £627.
‘If that £627 was split to reflect the fact that the firm has done basically the same amount of work that would have been done for a full appeal hearing, that would leave an additional amount of just £60 for counsel to draft the appellant’s skeleton argument. This is an extremely low fee particularly when it is considered that in this scenario the skeleton argument would have been successful in persuading the [Home Office] to concede the appeal.
‘It is not financially viable for barristers to accept doing work which would in practice amount to an hourly rate that is under the minimum wage in most cases. Equally, if that £627 was split so as to reflect the fact that counsel has done at an earlier stage all the preparatory work that would have been done for a full appeal hearing, this would mean that firms would receive less for appeal preparation than they currently do.’
Adrian Seelhoff, chair of the Law Society’s immigration law committee, said Chancery Lane has been supportive of the procedural reforms in the immigration first-tier tribunal.
However, he said: ‘This can only work if there is an increase in legal aid fees to cover the substantial additional costs of preparing an advance skeleton argument. The new fixed fee being introduced by the MoJ does not adequately meet these additional costs, and does not reflect the complexities of the immigration fee structure.
‘The consequence is that there will be insufficient funds to instruct counsel, and providers who do their own drafting would have to absorb the additional costs in circumstances where existing fee levels are barely viable. The likelihood is providers will be more reluctant to take on appeals or will be applying to the tribunal to waive the requirement for the advance skeleton argument.’
The Society urged the government to introduce an interim fee payable at hourly rates while data is gathered on what a sustainable fee level would look like.