As a direct access immigration barrister based in London who has been practising in Immigration since 1999 I have seen fees go from none and there being no legal aid to the early 2000s when under New Labour “Human Rights came home” and where there was legal aid for all only for HR to be apparently mauled by those on the right with the subsequent reduction in legal aid over the last few years.
If that was not bad enough those who went to lodge their appeals today were shocked, to put it mildly, about the increase of the court fees. An outrageous 500 % increase in the fees was announced in September. They come in effect today 10 October 2016.
The new fees only apply where the decision appealed against was taken on or after 10 October 2016, according to Article 7 of the Order.
This means that the cost of lodging an appeal against a decision received before 10 October 2016 is still the old cost.
The Government hailed this increase as deterrent with the idea of preventing those who have arrived in the UK with few resources from challenging decisions to deport them.
How it will work in practice is that if an appeal succeeds, the Home Office will normally be ordered to repay the appeal fee. However in 18 years of practice,I have seen clients waiting for 12 months or longer for appeals to be heard.
Another alarming factor is that the immigration tribunal is the only part of the court and tribunal system of England and Wales where full cost recovery is being sought from litigants. It is an interesting as most migrants appealing a decision are not allowed to work and or are vulnerable groups.
There is no dispute that the socioeconomic background of immigrants, their immigration status and local policies on access to health care affect the degree of their vulnerability. Some of them have limited English proficiency and are stimatised.
What the Government has put in place in order to avoid criticism is the exemptions to appeal fees which are as follow;
• those in possession of a Home Office fee waiver
• those who qualify for legal aid or asylum support;
• those who are appealing against a decision to deprive them of their citizenship; and
• those children bringing appeals to the tribunal who are being supported by a local authority.
• those people appealing decisions to revoke their refugee or humanitarian protected status;
• those with parental responsibility for, children receiving support from local authorities under section 17 of the Children Act 1989 (or any equivalent legislation in Scotland, Wales or Northern Ireland);
• children who are being housed by a Local Authority under section 20 of the Children Act 1989 (or any equivalent legislation in Scotland, Wales or Northern Ireland).
• Reduction of fee or remission also possible under paragraph 7 of the First Tier Tribunal(Immigration and Asylum Chamber) Fees order 2011.
As seen from above, the exemption is intended to include those who qualify for legal aid or asylum support, those who are appealing against a decision to deprive them of their citizenship and those children bringing appeals to the tribunal who are being supported by a local authority.
Children being housed by the local authority and the parents of children receiving local authority support will also be exempted.
Whilst it is no disputed that this increase will have an impact on the number of appeals lodged, this will not stop immigrants from coming to this country. Worse, it may even push them to go underground. They will bring forward their cases but after the initial victory may not re-apply or appeal. Less cases for the Upper Tribunal means less work for the judges.
I will write about the changes the Immigration Act 2016 will bring in my next blog.
What about EU migrants?
They are likely to be the most affected group. Many EU migrants will struggle to establish their right to remain in the UK. Will they then appeal the decision?
The President of the Law Society rightly said ‘ the provision of law should not be an accounting exercise.’
Yet unfortunately it seems to be no more than an accounting exercise for those who can afford it. Unfortunately migrants have been stripped of the right to work and the situation facing them seems to be getting worse with every statutory change.
There are exemptions. However I fear that they will be applied sparingly. Thus making the need to get any exemption application done as accurately as possible.
If you or any family member is facing a huge fee I would urge you / them to get in touch and see what we can do for you.