The government has published a consultation paper proposing to raise tribunal fees in the First tier immigration Tribunals from the present £140 to £800 per appellant for an oral hearing, or from £80 to £490 per appellant for paper considerations. Appeals in the Upper Tribunal, until now not charged separately, are proposed to incur a fee of £455 for an application for permission at the first stage, further £350 for applications for permission at the second stage, and further £510 for an appeal hearing where permission is granted (£1315 in total).
This will make immigration tribunals comparable if not more costly than the Supreme Court, where application for permission to appeal costs £1000.
Importantly, the fees are per appellant, not per appeal. This means that a family of five (two adults, three children) will pay £4000 for an appeal in the First-tier tribunal and further £6575 if they are not happy with the decision.
But it is not all gloom: the courts have power to order the Secretary of State to reimburse the appellants for the court fees if the appeal is allowed. And here comes the interesting twist: bearing in mind the degree of legal certainty in immigration law these days, the strongest and most compelling cases have 50/50 chances of success, less compelling cases would have lower chances. Naturally, appellants would want to hear that their prospects of success are high before they instruct lawyers to represent them in court, and naturally there will be lawyers who will be saying exactly that, and most likely these will be rather poor lawyers and the chances of reimbursement would thus go even lower.
Another loophole widely used by the Secretary of State in the wake of the fees era is to withdraw the decision where it is obvious that the appeal will succeed. Once the appeal is withdrawn the tribunal has no jurisdiction to make an award of costs and there are no provisions for the Secretary of State to reimburse the appellants without a court order to do so.
But not everyone will have to pay. Promised exemption will extend to those covered by legal aid (is anyone still covered by legal aid?) or asylum support, those appealing against deprivation of citizenship (this unexpected generosity leaves room for further improvements), EEA nationals and their family members appealing against a decision to remove them from the UK (this is mainly those accused of sham marriage who can be removed from the UK before their appeal is heard; they are however entitled to return to the UK at their own expense to attend the appeal hearing – most likely under escort from the airport, since they are liable to detention both before and after the hearing until ready to board their return flight; these appellants are unlikely to be particularly numerous), children supported by a local authority and parents of children receiving local authority support. The government promises to continue to protect the most vulnerable.
Previously contemplated introduction of a 10% discount for applications lodged online so as to promote computer literacy is to be discarded – “we do not believe that differential pricing as a means to incentivise behaviour continues to be justified”.
As for the more constructive elements of the proposal, I would mention a statement of intent to provide “less intimidating ways for citizens to interact with the justice system” (apparently the more you pay, the more confident you become), “while maintaining the authority of the court for the most serious cases” (those minor cases of those who won’t pay will no longer clog the system), and the objective to “protect access to the tribunal for those who need it” (those who don’t will not pay!).
To finish on an upbeat note I will quote the opening lines of the Ministerial Foreword: “Access to justice is vital part of an effective and functioning democracy, helping to maintain social order and a growing economy. Our court and tribunal system underpins access to justice and the rule of law in England and Wales.”
The government is inviting members of the public to express their opinion on the proposed initiatives. The Questionnaire and instructions on how to respond can be found on pages 16 and following of the Consultation document.
