Introducing fee charges for appeals in the Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal

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1 Introducing fee charges for appeals in the Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal Questionnaire We would welcome responses to the following questions set out in this consultation paper. Please return the completed form by to Thank you. Q1. We intend that individuals who bring either an immigration or asylum appeal, and who can afford to pay, should pay. We will exempt from payment asylum appeals where the appellant is in receipt of asylum support, is in the Detained Fast Track process and/or qualifies for legal aid. Are there any implications of this approach that we have not considered that would make this unworkable? Comments: The AJTC, and the Council on Tribunals before it, has always argued against the imposition of fees in tribunals where individuals are challenging state decisions. This reflects: - the inequality of arms in cases involving individuals and the state; - the fact that the state already controls the tribunal system through government funding and therefore has power to change ease of access by a range of means; - the fact that government departments make mistakes and so are also contributors to the need to make appeals (as evidenced by the 30-40% appeal success rate); - the need to incentivise both UKBA and the Tribunals Service to offer the most efficient and effective service: fees create a perverse incentive not to improve. The AJTC is concerned that a power under the TCE Act 2007 is being used as if it were a policy. We would expect to see and comment upon a policy, together with its justification, introducing tribunal fees and have not yet done so. There is little or no evidence presented to suggest that tribunal fees are 'affordable' by those to be affected by them. The AJTC is concerned about the imposition of fees on asylum seekers, regardless of possible exemptions. This is a highly vulnerable client group whose futures are

2 being decided in a system that has been widely criticised for its shortcomings. The introduction of fees would simply 'blame the victim' rather than addressing resource and quality issues directly. Getting decisions right first time is the most economically sensible and sustainable approach to public service decision-making. We note with concern that legal aid is potentially being withdrawn from non-detention immigration cases. We would have expected proper co-ordination between these parallel consultations. We note the significant costs to be incurred by the Tribunals Service in setting up a fee collection system. Given the availability of a simple and effective means of raising funds - initial fee increases - this seems to be a nugatory investment. We note with concern that neither Option 0 nor alternatively an 'Option 3' has been developed on this basis as an appropriate economic comparator for Options 1 and 2. We are very concerned that the proposed system will mean that a large number of people will end up paying for visas twice in order to correct errors made by UKBA. Q2. We propose that fee income should not exceed about 25% of full cost recovery. If you believe that we should be charging a higher percentage of cost recovery initially, please explain your reasons and how we can ensure access to justice for those of limited means. Comments: It is difficult to answer this (somewhat loaded) question because no justification for any given level of cost recovery from users is offered other than there being 'sound policy reasons' that are then not articulated. The lack of evidential foundation for a 25% base is summed up by the addition of the word 'initially'. The AJTC believes there is no such justification for appeal fees at all given the preexisting inequality of arms, the ongoing need for an accessible means to challenge government decision-making in the justice system and the simple and cheap alternative of an increase in initial fees to cover appeal costs.

3 Q3. We intend to charge more for an oral hearing in order to make a contribution towards the additional administrative and judicial cost of the appeal. Are there any implications of this decision that we have not considered? Comments: There are at least three issues of concern here. First, evidence suggests appeal success rates are higher in oral hearings. It is therefore dangerous to create the perception of differential justice by charging more for a form of appeal with greater likelihood of success. Second, the ultimate decision on oral vs. written hearings is currently taken by a tribunal judge. The proposed approach will stymy this judicial discretion. Third, right of access to an oral hearing engages Article 6 of the European Convention on Human Rights and Fundamental Freedoms and introducing differential fees for oral and paper hearings will lead to legal confusion and complexity. Q4 Do you consider that a higher fee should be charged for managed migration (settlement) cases, and entry clearance officer (settlement) cases? If you do, what level of charge do you think would be appropriate for settlement appeals (please specify for both oral and paper appeals)? Comments: No - see above. Q5 What other factors do you think we should take into account when setting a fee? Comments: See 1. above. UKBA makes mistakes that are corrected on appeal. It is unfair to impose the appeal cost on the appellant alone where fault often lies with the original decision-making process. These proposals offer no incentive at all to UKBA or TS to run a more efficient and effective service.

4 Q6. Do you agree that appeals against decisions with regard to deportation, revoking a person s leave to remain, or deprivation of citizenship or right to abode should not attract a fee? Please give reasons if you disagree. Comments: Yes - see 1. above. Q7. We intend to exempt appellants who receive asylum support from paying a fee. Are there any other situations where you believe an appellant should be exempt from paying a fee? Comments: Yes - see 1. above. Q8. We propose that asylum appellants in UKBA s Detained Fast Track process should not have to pay a fee. Do you have any comments on this proposal? Comments: The AJTC agrees with this proposal in line with its wider opposition to the imposition of fees to access administrative justice. Q9. We propose that appellants who qualify for legal aid will not have to pay the fee themselves. Instead this will be funded by the legal aid budget. Do you have any comments on this proposal? Comments: This question is somewhat difficult to answer in the light of the current Legal Aid consultation that aims to take all non-detention immigration cases out of legal aid entitlement. For the remainder, it would clearly be unacceptable to expect people who qualify for legal aid to pay legal fees themselves.

5 Q10. We do not intend to make refunds (unless a payment has been made by mistake) or enable cost orders to be awarded if an appellant is successful. Are there other evidence or arguments that you believe the Government should take into consideration on this particular point before making a final decision? Comments: The AJTC believes that any imposition of fees is unacceptable. Notwithstanding this view, the proposed non-refund system is unfair and unjust in principle and in practice. We have commented in more detail on this issue in our covering letter, but would simply make the point here that, if these proposals go ahead, a whole class of people will have to pay twice for immigration services because UKBA makes errors in decision-making. This is both irrational and unfair. Q11. Do you agree with our proposal that refunds will not be provided by the Tribunals Service if an appeal is withdrawn, invalid or out of time? Comments: Any decision not to refund fees where appeals are withdrawn, out-oftime or invalid is disproportionate and may amount to unfair profit. This is especially so when appeal timescales are short, paperwork is complex, access to legal help is being curtailed and permitted payment methods are being limited. Q12. We propose to introduce a discretionary power for the Lord Chancellor to use to exempt payment of the appeal fee in certain exceptional or compelling circumstances. Are there any other situations we have not considered where an exemption would be appropriate? Comments: See 1. above.

6 Q13. As additional administrative and judicial costs will be incurred by the Tribunal, do you agree that an additional fee, should be charged to those people who make an onward appeal to the Upper Tribunal? Comments: No. See 1. above. Appeal to the Upper Tribunal will be on a point of law and will require permission. The use of civil justice analogies and evidence in the consultation document to justify administrative justice charges is inappropriate given the power of the state. The equation of access to justice with payment to cover its administrative cost is dangerous, and raises significant constitutional issues about the separation of powers between executive and judiciary. Q14. Do you agree that the cost of an additional fee, for those people who make an onward appeal to the Upper Tribunal, should be introduced at a lower level than that previously charged by the Administrative Court? Comments: Yes but only in the context of the answer to Q13 above. The AJTC is opposed to fees being used as a barrier to access in administrative justice in general. Q15. For the reasons detailed above, we consider it necessary to move to a system of single lodgement of appeals in the UK for out of country appeals. In proposing single lodgement, what implications do you think there will be for people overseas who wish to make an appeal that we have not considered? Comments: The AJTC is concerned precisely that the implications of the decision have not been properly considered in the Impact Assessment either on their own or in relation to other proposals. For example, the need to comply with single lodgement requirements may lead to more appeals being late, which will then presumably generate more income for TS if no refunds are offered.

7 Q16. We intend that, unless exempt, any named individual, bringing an appeal, including children and dependents, must pay a fee. Please provide any comments about the consequences of this approach, which you feel ought to be taken into consideration. Comments: The AJTC regards this proposal as both unfair and potentially discriminatory against children. It may be true that family appeals take longer than individual appeals, although no evidence is offered. As above, the AJTC does not believe that access to justice should be equated with administrative cost. Even if the proposal were pursued in the face of this argument, it is hard to believe that family appeals take 4-5 times as much time or resource and so a proportionate family fee might involve a small percentage uplift not a 'per person' approach. Q17. Do you agree with the principle that we should extend the ability to pay the fee to someone other than the individual bringing the appeal (e.g. their sponsor)? Comments: This proposal is a tacit acknowledgment of the hardship that the planned limitation on means of payment will bring. This limitation is purely for administrative ease and little or no consideration of its potential impact on users of the system is presented. The first AJTC principle states that: "A good administrative justice system should make users and their needs central, treating them with fairness and respect at all times". It should not be necessary for third parties to be involved in the operation of a properly user-focused system. Q18 To what extent do our proposals impact on you as a Business, University, Charity or Non-Profit Organisation? Please provide any evidence you have to support this that you would like us to consider. Comments: Not applicable. The AJTC represents the integrity of administrative justice in general and the interests of its users in particular rather than organisations with financial interests in immigration fee levels.

8 Q19. Noting our intention to only take payment by credit/debit card, bank or wire transfer or by an on-line payment system, can you foresee any problems with this approach that we have not considered? Please provide details. Comments: Yes. The AJTC is concerned that the Impact Assessment does not consider this issue properly. If the option to increase initial UKBA fees were pursued then all current means of payment would continue to be available. The proposed approach curtails user options considerably, potentially increases user transaction costs and is being pursued in the absence of any attempt to gather evidence to show that it will not create hardship or widespread inconvenience. Q20. If there are any other options or approaches you believe the Government should take into consideration please provide comments with your consultation response. Comments: The AJTC believes that the current framework of fees is capable of funding TSIA without the need to introduce a costly and complex direct payment system. The Council believes the proposals will lead to the problems we have set out both in this questionnaire and in our covering letter. A modest increase in existing fees, with appropriate exemptions, will not generate the costs associated with a new TS payment system (which seem to be conservative estimates). It will also acknowledge that the UKBA decision failure rate (30-40%) falls randomly on individuals and so it would be inherently unfair to charge any given individual as if the need to appeal were solely or even mainly their fault. An initial fee increase would be by far the easiest, most efficient and most economical approach for government to pursue.

9 Q21. Do you consider that any of the proposals in this paper would have an unconsidered adverse impact on any particular group according to race, gender (including gender identity), disability, age, religion or belief or sexual orientation? If so please outline the likely adverse impact and the group(s). Please also see the specific question in the Equality Impact Assessment that accompanies this consultation paper. Comments: The AJTC is concerned that the proposals are currently being pursued in the absence of any detailed research or analysis of equality impact. Our concern is precisely that the potential 'adverse impact' remains 'unconsidered'. Q22. What are your views on the proposed removal of the dual lodgement option? Are there other changes to the rules which should be made as part of the removal of this option? Comments: This proposal risks creating significant barriers to lodgment of appeals. The AJTC is concerned that it is being pursued without proper analysis of its likely impact, and in the face of an alternative approach that is simpler, more economical and which does not run this risk. Q23. What provision should the rules for the First-tier Tribunal and Upper Tribunal make for those appeals where the Fees Order requires that a fee be paid? Comments: The AJTC recommends pursuit of an option (as above) that removes the need for such provision.

10 Q24. What provision should the rules for the First-tier Tribunal and Upper Tribunal make for disposal of appeals where a required fee has not been paid? Comments: This issue would not arise if the approach recommended by the AJTC were to be adopted. Q25. Should other changes to the rules for First-tier Tribunal and Upper Tribunal be made in the light of the introduction of fees?

11 Equality Impact Assessment Q1 Are there other sources of historical data you feel would give us additional or more accurate data on how fees for immigration appeals could impact on equality groups? Q2 Do you agree that our assumption that the role of income has a potentially greater impact on an appellant s decision to appeal when introducing a new fee is reasonable? Q3 Do you have evidence that the introduction of fees for all immigration appellants, except those who are exempt, directly discriminates against a particular ethnic group? Q4 Do you have any evidence that the approach describe at 8.6 and 8.7 will impact on equality groups? Q5 - Do you have evidence that you believe shows that the level of fee proposed will have a disproportionate impact on any of the equality groups

12 that you think should be considered in the development of a full Equality Impact Assessment? Q6 Are there other options for exemption or remittal you think we should consider that may mitigate any potential equality impacts while allowing us to keep the level of fee charged to the level we propose? Q7 Do you have any evidence that charging a two stage, lower fee than that in the previous system will have a disproportional impact on any of the equality groups? Q8 Do you have any evidence of any potential equality impacts of the process described at 8.26 you think we should consider?

13 Q9 Do you have any suggestions on how those potential equality impacts could be further mitigated? Q10 This is an area where we would particularly welcome your views on any evidence for potential equality impacts you have access to that we have not identified and any suggestions you may have of steps we can take to mitigate these issues. Comments: Marginal increase of initial application fees, with appropriate exemptions, to cover any funding shortfall in the appeal system would not generate any new equality issues and so would avoid the need for this analysis to be pursued. Q11 Do you have any evidence that our approach to family appeals is not reasonable or justified? Comments: See above. Q12 Where, in answer to any of the questions that have been asked, you have evidence of a potential impact on an equality group and have a proposal on how we may be able to address this, please let us know so that we may consider it as part of our consultation process. Comments: See above.

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