Dispensing with the Delivery of Free Tribunal Justice

So, the consultation Introducing fee charges for appeals in the Immigration and Asylum Chambers of the First- Tier Tribunal and the Upper Tribunal closed last Friday. Basically, a decision has been taken to charge fees to immigrants and some asylum seekers in order to pursue their appeals in the tribunal system.

Currently with the exception of Lands Tribunal (this deals with the issue of land disputes and valuation) appellants wishing to pursue appeals against the decisions of public bodies can do so without the requirement to pay a fee.

The proposals

The Consultation discusses various approaches to pricing, but seems most attracted to the idea of a fee based on a 25% recovery rate of the costs price. The Paper talks about fees of around £125 for oral hearings, £65 for paper hearings in the First Tier Tribunal’ £50.00 for an application for permission to the Upper Tribunal, and around £200.00 for a full hearing if permission in granted. Fees will also be payable for each dependant.

The plan it seems, is not to refund fees in successful outcomes or in cases where UKBA withdraws its decisions- this was one of issues that was open for consultation though.

The Paper envisages certain exemptions for certain categories of immigrants, but also consults on this issue. It proposes exemptions for:

  • Asylum seekers in receipt of asylum support
  • Those in the Detained Fast Track Process
  • Those who qualify for Legal Aid
  • Cases in which the state has initiated action i.e. deportation, revocation of leave to remain and deprivation of citizenship/right of abode.

The Paper also envisages a residual discretionary for the Lord Chancellor to exempt payment of appeal fees in certain ‘exceptional and compelling circumstances’ though there is little on what these might be.

Dispensing with the principle of the free delivery of justice

Implications

The Paper reckons that these proposals just like the Legal Aid proposals are all inspired by the pressing need for budget deficit reduction. Whilst not suggesting for one second that there is no need for budget deficit reduction- there clearly is, (though the means through which this should be secured, the necessity for the particular pace of reduction, together with the question of what should be cut are of course open to debate) the paper mysteriously omits to ever mention the possibility of reverting back to the status quo once economic circumstances improve. Instead it refers to fees ‘initially being set’ – the implication is that they will in fact rise.

One is left with the distinct impression these measures will be here to stay, and that given that immigrants tend to perform an experimental guinea pig role in policy making, they seem likely to be extended to other tribunal users. In short, these measures appear ideologically driven.

Objections

Aside from these proposals being unfair given that many migrants already pay taxes (they are net fiscal contributors in fact) and make additional contributions to the public purse through fees for immigration applications well above costs price ( the Government makes about £300 million per year from these) we argued in our Consultation response that we oppose the very principle of charging.

Tribunals exist to perform an essential public function – they provide an accessible form of redress in relation to alleged mistakes by government departments and bodies. Accordingly in our view they should be funded through the general taxation system, and remain free at the point of delivery. Put simply, access to justice should not be made the sole preserve of the rich.

Legal Concerns

There are a number of legal issues the Paper also throws up in the light of the absence of a mechanism to assess means, and particular circumstances relating to appeals. We’ve highlighted a few of these in our response. Some concerns are:

  • How charging sits with the obligations in the Refugee Convention to ‘provide free access to the courts’ (Article 16) and the duty not to impose ‘charges of any description whatsoever, other than those which may be levied on their nationals in similar circumstances’ (Article 29)
  • How a particular scheme which does not assess in all cases means and individual circumstances of a case will sit with commons law rights, and ECHR rights – we’re thinking about what was said about the use of fixed fees in Baiai
  • How consistent this would be with statutory equality obligations given that the paper in fact notes ‘ the evidence does suggest that charging a fee could have the potential for an indirect discriminatory effect on certain nationals, in that it is more difficult for nationals of certain countries to pay a fee than others and this potential could apply to other equality groups’
  • How the particular scheme envisaged will ultimately sit with EC rights of free movement, and the Charter of Fundamental Rights where matters are within the scope of Community law – in particular Article 47 (right to an effective remedy before a tribunal) and equality before the law (Article 20) and the right to asylum (Article 18) when within the scope of EC law
  • How the charging of fees for dependants sits with obligations not to discriminate against children and to act in their best interests as per the Convention on the Rights of the Child

You’ll be able to read about our objections in full and download a copy of our response from here once it’s up on our website tomorrow.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

One response to “Dispensing with the Delivery of Free Tribunal Justice

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