Challenge to the five-fold increase to Immigration Tribunal fees

by Joint Council for the Welfare of Immigrants

Challenge to the five-fold increase to Immigration Tribunal fees

by Joint Council for the Welfare of Immigrants
Funded
on 20th October 2016
£6,545
pledged of £10,000 stretch target from 189 pledges

Latest: Nov. 28, 2016

The Government has backed down on Tribunal Fees! For now.

We are very pleased to be able to announce that following our pre-action correspondence with the Lord Chancellor, the Ministry of Justice has decided to roll back the increase to the Tribunal fees. F…

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JCWI is a charity fighting for fairness and justice in immigration law and policy. We are challenging the Government's order increasing immigration tribunal fees by approximately 500%. Tribunal fees for an application without a hearing that used to be £80 are now £490; and the fee for an application with a hearing has risen from £140 to £800. 

Who is affected? 

These fees apply to immigration and asylum appeals. Appeal rights have already been narrowed, so that these appeals can only be brought in the most serious types of cases: those concerning human rights, refugee protection, and fundamental EU treaty rights. Appellants often face life-changing, and even life-ending consequences if a wrong decision is made. 

Targeting Immigrants

No other UK tribunal is raising fees to this extent, or is being expected to cover its own costs. 

Only the Immigration and Asylum Chamber of the First-tier Tribunal has been singled out for such high fee rises. Tribunals with wealthy users that could provide more lucrative costs savings appear to have been spared. 

For example, in the Copyright Tribunal, which is used by a far wealthier set of companies and individuals than the average user of the Immigration and Asylum Chamber , the fee for most applications is only £50. Fee rises in the Employment Tribunal, which have drastically reduced claim numbers and been heavily criticised by many, have still left employment tribunal fees far lower than those implemented in the Immigration and Asylum Chamber. 

Background - Hiding Home Office Casework errors

In recent years the Government has taken steps whose effect is to prevent Home Office caseworkers' decisions being scrutinised by an independent body. The Government has reduced appeal rights so that the vast majority of immigration decisions no longer carry a right of appeal to the Tribunal. It has also introduced legislation meaning that some appeals can only be pursued once a person has left the UK. New legislation passed this year will have the effect of curtailing the rights of appeal that a person can exercise while still in the UK even further. These fee increases will have the same effect - even fewer people will be able to access an independent review of their immigration or asylum related application.

Home Office casework decisions are notoriously error-prone. For example, between October and December 2015, 41% of appeals against Home Office decisions were allowed in the First-tier Tribunal. The Parliamentary and Health Service Ombudsman revealed serious problems with Home Office decision-making, upholding 70% of complaints made. The Ombudsman commented that "delays, poor decision making and not doing enough to address the injustice caused to individuals and their families are key issues in complaints about the Home Office".  

 When the decision involves something as serious and irreversible as sending someone back to face potential torture or death, this is simply unacceptable. However, the gravity of the consequences don't seem to reduce errors. In 2015, the Refugee Council noted that 90% of Home Office refusals of refugee protection by Eritrean asylum seekers were being overturned by the Tribunals on appeal. Eritrea is a country that has been frequently described as Africa's North Korea, and is ruled by one of the most violently repressive regimes in the world. This month a tribunal ruled that the Home Office was wrong to treat Eritrea as safe. Without access to appeals, the Home Office would have been sending far more people back to face serious harm.   

These proposals will greatly reduce the ability that people have to hold the Home Office to account for incorrect decisions that ruin lives. 

What is JCWI doing about this?

We will bring a judicial review claim in the High Court arguing that the proposed fees increase is unlawful and a disproportionate restriction on access to justice and the protection of human rights. Our staff will use the experience and institutional knowledge JCWI has from almost half a century's work advising on immigration matters to put the full impact of the measures before the court. We have instructed Liberty to act as our solicitors in this matter and our barristers are Laura Dubinsky from Doughty Street Chambers, and Karon Monaghan QC from Matrix Chambers. 

How much will it cost?

Judicial reviews must be brought within very short and strict time-frames, and so we urgently need at least £5,000 to make sure we can cover the costs of this action. The first stage of the process is to apply for 'permission'. After that, if we are granted permission, we will be given a court date, and will prepare to argue the case on that date. We need at least £5,000 to cover the immediate risk we face of being ordered to pay the Government's costs before a Cost-Capping Order (CCO) is put in place. A CCO is an order from the judge that puts a limit on the amount of money we would have to pay the Government if the claim did not succeed. We can only apply for a CCO after obtaining permission from the High Court to proceed with our judicial review. Our stretch goal is £10,000. This reflects the fact that we believe a CCO is likely to be set at more than £5,000, and also that we would like to be able to pay our legal team for the work that they do, albeit at a very low, non-commercial rate. 

Our legal team has kindly agreed to do all work before we are granted 'permission' pro bono: they will not charge us for it. After the permission stage, we hope to be able to pay our legal team (at greatly reduced rates) for the further work that they do in preparing the case for court and in attending court to make legal arguments. This would include legal research, gathering case studies, researching evidence, requesting and analysing disclosure documents from the Government, drafting legal arguments, and responding to the Government's defence. 

How you can help

Please do contribute if you can. Every little bit of money will help us to fight these fee rises which would put Government officials and their faulty decisions beyond the scrutiny of the courts. 

You can also help us by sharing this page and spreading the word about what the Government is trying to do. Write to your MP to raise your concerns about this attack on access to justice for all, and ask them to support any action being taken in Parliament to fight these measures. 

Finally, please contact us if you have any information about these proposed rule changes that could help us. Are you facing increased fees to appeal an immigration or asylum decision? Or if you're a lawyer and can provide us with information or case studies about how these fee increases will affect your clients, please do get in touch with us at JCWI

 

Image credit: MichaelCoghlan, licenced under Creative Commons 

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Update 3

Joint Council for the Welfare of Immigrants

Nov. 28, 2016

The Government has backed down on Tribunal Fees! For now.

We are very pleased to be able to announce that following our pre-action correspondence with the Lord Chancellor, the Ministry of Justice has decided to roll back the increase to the Tribunal fees. From Friday last week, all Immigration Tribunal fees are being charged at the old rates, and everyone who paid the higher fees will have them refunded.

We thank all our backers for their contributions. The fact that we were able to take concrete steps towards litigating this issue played a great part in putting pressure on the Lord Chancellor and the Government to reconsider their position.

It is fantastic that the Government has stepped back from an untenable position and has avoided unnecessary and costly litigation at the public expense. Raising appeal hearing fees to £800 was an unequivocal attack on the rule of law, and on the principle that justice is for all, not only for the rich.

In this instance, not only has a terrible policy been reversed, but we are now in a better position than we were before. The new exemptions regime, which is more generous than the old one as a consequence of our representations to the MOJ, will remain in place. During our pre-action correspondence with the Lord Chancellor we also received further assurances about the exemptions regime, and we will continue to press to make sure they are implemented.

However, this issue is far from settled. The Government intends to review its position on fee increases and to come out with new proposals to allow it to set higher fees and to recover more money from the Tribunal. While we can hope that the new measures will be less appalling, it is still very likely that they continue to reduce access to the courts for some of the most vulnerable in our society. Almost certainly they will  be designed to be harder to challenge in the courts.

We at JCWI will continue to monitor this issue closely. We will work to prepare to respond to the next consultation on fees and, thanks to the support of our backers, we will be ready to challenge any unlawfulness in the next set of proposals.

Update 2

Joint Council for the Welfare of Immigrants

Nov. 4, 2016

Update on our legal challenge

Thanks to your support and pledges we have been able to improve the guidance that the Lord Chancellor has issued on fee remissions. As a result of formal steps we took to launch our legal challenge against the fee increases, the Lord Chancellor has:

  1. Agreed to amend the wording of her guidance on remissions to remove words that wrongly suggested applicants for a fee remission would have to show that their case was ‘unusual’ in some respect;
  2. Confirmed that  the application of the Lord Chancellor’s power to remit fees would not be discretionary: anyone who can show that they cannot realistically afford the fees must  be granted a remission;
  3. Stated that that it is the practice of HMCTS to allow a further 14 days for new evidence, if an application for fee remission is made with insufficient evidence. 

While we welcome this, it does not address the fundamental concerns we have with the huge increase to Immigration Tribunal Fees. We do not believe that it will compensate for the huge injustice that we think will inevitably be caused by the fee increases. We are concerned that the scheme, which is to be administered by court officials, with an appeal to their supervisors, will not always get it right, and there will be no independent or judicial scrutiny of decisions. The guidance is still vague and open to a wide range of interpretations and it is very likely that what court staff view as realistically affordable will leave many at best struggling to scrape together the money for an appeal and at worst, simply unable to access the court at all.  The most vulnerable applicants - who are those who can’t get access to legal advice or who have physical and mental health problems, face a language barrier or who are suffering from trauma or trapped in detention -  may not even be aware of the remissions scheme or may be unable to gather the evidence they need in the 14 short days they have whilst also preparing their appeal. Faced with the headline prospect of paying £800 many will simply give up, as the experience of the Employment Tribunals indicates.

Minor changes to the remissions system cannot compensate for this radical and discriminatory attack on access to justice. Only yesterday the Lord Chief Justice, Lord Thomas of Cwmgiedd, warned of excessive civil court fees preventing access to justice, and stated that that a ‘properly funded justice system is a core function of the state’. It is not right that those seeking a fair and independent hearing on life-changing issues, should be forced to bear the full cost of challenging Home Office decisions. However in light of the government’s concession JCWI has decided to undertake some further work before issuing proceedings.

JCWI will be offering pro bono advice to people affected by the fee increases and looking for case studies of those who have been unable to appeal owing to the fees. The fee order has now been in place for a number of weeks, and there will already be people out there faced with an £800 bill for seeking justice.  We urge anybody affected by the new measures and the remission guidance to contact us. Please get in touch URGENTLY at policy@jcwi.org.uk  

Update 1

Joint Council for the Welfare of Immigrants

Oct. 20, 2016

Funded

We hit our first target!

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