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 Response to Consultation CP(R) 10/10 Published 9 May 2011

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3 Introducing fee charges for appeals in the immigration and asylum chambers of the first-tier tribunal and the upper tribunal Response to consultation carried out by Her Majesty's Courts & Tribunals Service, part of the Ministry of Justice.

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5 About this consultation To: This consultation is aimed at all stakeholders with an interest in immigration and asylum matters, or who would be affected by the introduction of fee charges for immigration and asylum appeals. Duration: From 21 st October 2010 to 21 st January 2011 Enquiries (including requests for the paper in an alternative format) to: Roy Ketley Ministry of Justice 5 th Floor, Field House Breams Building EC4A 1DZ Tel: Fax: IPTInbox@hmcts.gsi.gov.uk How to respond: Response paper: This consultation period closed on 21 st January 2011 and responses can no longer be taken The response to this consultation exercise was published on 09/05/2011 at:

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7 Contents Introduction and contact details 2 Background 3 Summary of responses 5 Responses to specific questions 9 Conclusion and next steps 42 Annex A List of Appeal Costs and proposed process flowchart 43 Annex B List of respondents 45 The consultation criteria 47 1

8 Introduction and contact details This document is the post-consultation report for the consultation paper, Introducing Fee Charges for Appeals in the Immigration and Asylum Chambers of the First tier Tribunal and the Upper Tribunal. It will cover: the background to the report a summary of the responses to the report a detailed response to the specific questions raised in the report the next steps following this consultation. Further copies of this report and the consultation paper can be obtained by contacting Roy Ketley at the address below: Immigration Policy Team Ministry of Justice Breams Buildings London EC4A 1DZ Telephone: IPTInbox@hmcts.gsi.gov.uk This report is also available on the Ministry of Justice s website: Alternative format versions of this publication can be requested from IPTInbox@hmcts.gsi.gov.uk 2

9 Background 1. The consultation paper Introducing fee charges for appeals in the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal was published on 21st October It explained that Her Majesty s Government intends to introduce fees for bringing Immigration and Asylum appeals, currently wholly funded by the taxpayer, to reduce the cost to the taxpayer and move some of the cost burden to users of the tribunals system. It invited comments on the practical arrangements for introducing fees for Immigration and Asylum appeals. 2. The main proposals in the consultation paper were: To charge fees for an appeal if a person is refused leave to enter the country, refused leave to remain in the country, or if an application to vary his/her leave is refused; To charge a higher fee for oral hearings (when the relevant parties attend a hearing with a judge) than paper hearings (when a judge considers the merits of an appeal based on papers submitted to him or her) as the costs of an oral hearing are more than those of a paper hearing; Not to charge for appeals from individuals who are facing action initiated by the State (e.g. deportation; revocation of indefinite leave to remain; or deprivation of citizenship), and to exempt asylum applicants in the Detained Fast Track process, and those in receipt of Asylum Support under section 95 of the Immigration and Asylum Act 1999; That those who qualify for legal aid have the fee paid for them by the legal aid budget and that the Tribunal reimburse the legal aid budget for the costs of an appeal fee; That overseas appellants should generally be liable to pay a fee; To introduce a special power, to be used at the discretion of the Lord Chancellor, to waive fees in exceptional or compelling circumstances; To allow payment of the fee to be made by someone other than the person bringing the appeal; 3

10 Not to refund the fee if an appeal is successful, withdrawn, invalid or out of time (as the Tribunal incurs costs in processing the appeal irrespective of the outcome); To charge a two stage fee for some appeals to the Upper Tribunal; To move to a system where all appeals will be lodged at the Tribunal in the UK, with payment made shortly after the time the appeal is lodged; That all individuals bringing an appeal (unless exempt), including dependents and children, must pay a fee. 3. The consultation period closed on 21 st January 2011 and this report summarises the responses received. The report also explains the changes the Government has decided to make to its proposals, in light of the responses to the consultation. A list of respondents is at Annex B. 4. The Impact Assessment accompanying the consultation paper has been updated to take account of evidence provided by respondents during the consultation period. The Equality Impact Assessment also accompanies this consultation response. A Welsh language version of the response paper can be found at 4

11 Summary of responses 5. The consultation invited comments on the design of a scheme and on practical arrangements for charging fees for immigration and asylum appeals. 6. A total of 27 responses to the consultation paper were received. Of these, approximately two thirds of responses were from groups who work in the immigration and asylum field; other replies came from interested members of the judiciary, groups representing lawyers, from the Administrative Justice and Tribunals Council (the AJTC) and private individuals. 7. Almost all respondents were, in principle, against the decision to impose fees in immigration and asylum appeal cases. Respondents concerns, and our responses to them, are summarised in relation to the specific questions. 8. We proposed to make a number of substantive changes to the proposals set out in the consultation paper in the light of respondents comments. These are: to introduce a power for the Tribunal to award costs to successful appellants up to the amount of any fees paid; to withdraw the proposal to charge fees in the Upper Tribunal Immigration and Asylum Chamber (UTIAC); to expand our exemptions criteria ; and to introduce a certification process to allow appellants, and/or their representatives in receipt of legal aid, to avoid paying the appeal fee up front. 9. These policy changes are detailed below. In addition, we intend marginally to increase the costs of fees from those proposed in our original consultation. We consulted on the basis of introducing fees at between 65 and 125 per appellant (for paper and oral appeals respectively) and up to 25% of cost recovery. We now propose to set fees at 80 and

12 Awarding Costs to Successful Appellants 10. We proposed in the consultation paper that appellants whose appeals against United Kingdom Border Agency (UKBA) decisions were successful should receive neither a refund of their fee from the Tribunal, nor be able to seek the award of costs against UKBA to recoup their fee. 11. In general, opposition was expressed by respondents to the introduction of a charging system with no prospect of a successful appellant being able to recover their fee by way of a refund from the Tribunal or the awarding of costs between parties. It was considered that it was unfair that appellants had to pay one arm of the state to rectify what was seen as an incorrect decision by another. Respondents noted that in all other courts a successful litigant could expect to recover at least the cost of the court fee from the other party, and that adding to the costs an applicant already faces in the immigration context could create access to justice issues. 12. Respondents also argued that cost awards would act as an incentive for UKBA to improve the quality of its initial decision-making something that many stakeholder groups perceived to be a major problem. 13. Success rates for appeals are approximately between 30 40% for the different appeal types. We recognise, however, that this is sometimes because appellants introduce new evidence which was not available to UKBA at the time their original decision was taken. We also recognise that there are instances where the issues involved in reaching a decision can be finely balanced. 14. Our intention is to introduce a discretionary power for the judge in a case to award costs to recover appeal fee charges against UKBA. The policy intention behind this is that costs would only be awarded, up to the level of the appeal fee, where the decision should clearly have been made in favour of the appellant in the first place on the information presented by the applicant at the time of the initial decision. We would not expect a cost award to be made in cases where an individual introduced new evidence at appeal or otherwise contributed to the need for an appeal by his/her actions. 15. Any decision taken by the FtTIAC to award costs will not be appealable to UTIAC in itself by virtue of the fact that such a decision will be an ancillary 6

13 decision. UTIAC will, however, be able to consider the issue of costs again if a substantive matter comes before it. In those circumstances UTIAC will be able to uphold, vary, or quash any award made by the FtTIAC, or indeed make an award where the FtTIAC did not if it considered it appropriate to do so. Fees in the Upper Tribunal 16. The consultation document proposed that we charge fees for appeals to the Upper Tribunal IAC at the rate of 50 for an application fee and 200 for the hearing of an appeal where permission is granted. Respondents were unanimous in their view that appellants should not pay a fee to access UTIAC. They argued that the function of UTIAC is to determine whether the First-tier Tribunal IAC has made an error of law and that therefore it is unreasonable to expect an appellant to pay the tribunal system to correct its own errors with no prospect of being reimbursed for the fee if successful. 17. Tribunals judiciary also suggested that fees in UTIAC may complicate and delay consideration of cases where a speedy throughput is a priority. Some respondents argued that, if fees are to be introduced, then a single payment allowing access to both tiers of the unified tribunal system would be preferable to multiple payments at different stages of the process. 18. Taking into account the views of respondents and the additional administrative burden that introducing fees in the UTIAC would bring, we have therefore decided to withdraw the proposal to charge a further fee for bringing an appeal to the UTIAC for the present. However, we may, as part of our annual review of fee levels, revisit that proposal again in the future. Proposed Appeal Fee Charges 19. The consultation paper argued that by introducing fees at a level that would raise around 25% of the full cost of administering the system we would maintain access to justice for individuals of limited means. 7

14 20. The consultation paper also suggested, for illustration, a cash figure of around 65 for a paper hearing and 125 for an oral hearing, and noted that we would decide on the final level of fees once the responses had been analysed. The majority of respondents said that any proposed fee level was too high, but a significant number commented that if fees were to be introduced then these should initially be limited to 25% of the full cost of an appeal. 21. We also made it clear in the consultation document that we would aim to increase fees over time beyond 25% of cost. Taking into account the intention to introduce a power to award costs up to the level of the fee paid to successful appellants we consider that the introduction of fees at a level higher than the 65/ 125 figure mentioned in the consultation paper would be appropriate. 22. We now intend to introduce fees at 80 for paper appeals and 140 for oral appeals. This remains below the 25% cost recovery level proposed in the consultation paper. 8

15 Responses to specific questions 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? of those who replied to the consultation paper commented on this question. 24. Most respondents were against the introduction of any form of fees. The majority of respondents were in agreement that people on asylum support, in the Detained Fast Track process or who qualify for legal aid should be exempt from the payment of fees. Several respondents raised concerns about the implications of changes to the qualification process for gaining legal aid support: these are summarised in relation to Q A significant number of respondents highlighted in relation to asylum support that only section 95 support was specifically mentioned in our consultation, and recommended that those on section 4 and section 98 support should also be exempt. 26. Section 4 support is normally provided to failed asylum applicants whose appeal rights have been exhausted. This support is considered to be a temporary measure for failed asylum seekers who would otherwise be destitute while they are taking steps to return to their country of origin or where they face a legitimate barrier to return. Section 98 support is normally provided to asylum applicants who have received removal directions from UKBA but still have an appeal being considered or are considered to be unable to meet their essential needs. 27. Many respondents argued that if all asylum appeals were not to be automatically exempt then a simple means test should be applied to assess ability to pay. 28. Respondents suggested a number of other categories for exemption including: all asylum/subsidiary protection appeals; asylum applicants on local authority support; family reunions for those with Refugee Status; ECHR cases including Article 8 appeals; dependants who are children; applicants who were/are 9

16 unaccompanied children seeking asylum, including those receiving support and/or services from a local authority; domestic violence victims; cases involving EC Treaty rights of free movement; cases in which legal aid is available; appeals made by people who do not have at least 8000 worth of savings; cases where it is deemed that it is inappropriate for an applicant to pay the fee on the basis of a means test carried out by the MoJ; those in receipt of passported benefits for the purpose of legal aid; appeals made by people who have a case under any of the UK's international obligations including under European Union law and the Council of Europe Convention on Action against Trafficking in Human Beings. Our consideration of these concerns: 29. Having reviewed the implications of exempting asylum applicants supported by section 4 and section 98 funding, we consider that it would be appropriate to exempt that group of applicants who have section 98 support from paying fees, as they may continue to have a right of appeal. Applicants who are in receipt of section 4 support will have exhausted their appeal rights and therefore an exemption from paying a fee is unnecessary. 30. We have considered the various other categories for exemption suggested by respondents against our original criteria that individuals who bring an immigration or asylum appeal, and who can afford to pay, should pay. However, we do not consider that any of the additional categories for exemption suggested by respondents represent people who: might wish to bring an immigration or asylum appeal and cannot afford to pay; and who will not already be eligible for legal aid, asylum support funding or otherwise covered by our original exemption policy. 31. For example, we recognise that a person may not be eligible for asylum support (on the basis that they would not be destitute without it) but may still have very small disposable resources. However, we anticipate that such a person would be eligible for legal aid, and thus exempted by our original exemption policy. 32. However as a result of this consultation, and in addition to clarifying that our exclusion of persons in receipt of asylum support will include those receiving 10

17 section 98 support, we will also exempt cases dealing with removal of illegal entrants and EU nationals; and humanitarian protection cases. 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. 33. The majority of responses to the consultation as a whole argued that any rate of fees would be too high. For example, one respondent commented that: there is no justification for charging. If a charging system must be implemented there are strong arguments for charging well below 25% of full costs recovery. 34. Only three respondents responded to this specific question, with 2 of them agreeing that a fee should be charged and that setting it at 25% of full cost recovery was reasonable. We have, however, considered all comments made by respondents on the issue of fee levels (even if they were not specifically made in response to this particular question). 35. A significant number of respondents considered that there had not been enough information and rationale provided in the consultation document as to why fees should be introduced at the levels proposed, and that further detail should be provided as to the costs incurred to the Tribunal to administer and consider immigration and asylum appeals. 36. A number of respondents also thought that we should commit to reviewing fee levels on an annual basis and agree the parameters of the review including criteria and methodology. 37. A signficant number of respondents commented that, if fees were to be introduced, then these should be limited to 25% of the full cost of an appeal. Others recommended introducing a tiered fee payment structure which would recognise that students and Tier 1 workers, for example, are likely to have less disposable income than a Tier 5 worker. However one respondent notably recommended that the fee structure should be reviewed annually and the possibility of a 50% fee should be considered within months of fee introduction. 11

18 Our consideration of these concerns: 38. We have determined that we will introduce fees of 80 for a paper application and 140 for an oral application. This is slightly higher than the illustrative fee levels originally consulted on, however, it is still below 25% of the full cost of an appeal. We consider that this is an appropriate balance between a low, affordable fee which enables access to justice, and a meaningful contribution towards the costs of the Tribunal. 39. The most recent statistics detailing unit cost breakdowns for the tribunal is at Annex A, which in order to provide a clearer picture of our envisaged operational processes, also includes a flow chart of the proposed fee payment process. 40. We also agree that fee levels should be reviewed regularly as the fee system settles in and policy requirements change and therefore will be setting appropriate review periods that are likely to coincide with UKBA review of visa application fees. 41. As noted in our original consultation paper, we also recognise that our current exemptions policy relies on the provision of legal aid, and that if provision were to alter significantly we would need to revisit our remissions and exemptions policy and would be likely to consult again on the proposed changes to our exemptions policy. 42. There are a number of exemptions to the payment of the fees and while appellants in asylum and humanitarian protection cases will be required to pay the fee if they can afford to, if they do not, the appeal will continue. We have also decided to exclude from paying a fee any individual provided with services by a local authority under section 17 of the Children Act 1989 due to the particularly vulnerable nature of that group of people. 43. Additionally, the Lord Chancellor will retain the power to waive the fee in exceptional and compelling circumstances. 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? 44. Respondents registered a number of concerns around this proposal. For example, one respondent commented that: 12

19 There are potential problems about differential fees for paper and oral hearings, particularly where the Upper Tribunal itself considers that there may be some important reason for an oral hearing or that the appeal can properly be disposed of with written submissions and without an oral hearing that the appellant has already paid for. 45. Respondents felt that further thought was required as to the policy of having a two-tier system of payment and the impact this may have on access to justice and judicial discretion. For example, Respondents highlighted the fact that current statistics indicate that appeal success rates are higher in oral hearings. A significant number of respondents thought that it would be dangerous to create the perception of access to justice being dependent on financial means by charging more for a form of appeal with greater likelihood of success. 46. Also, the ultimate decision on whether to hold an oral or a written hearing is currently taken by a tribunal judge. One respondent commented that: The proposed approach will stymie this judicial discretion. 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. 47. It was also argued by a significant number of respondents that many vulnerable children and families will only be able to afford a paper hearing. Respondents were concerned that, if such individuals were not able to find representation funded through legal aid, this would raise serious concerns about whether applicants can present their cases as effectively in writing as in person given that some of the most marginalised children and families will not have an effective grasp of written English, may be illiterate or have communication difficulties. 48. Overall, respondents considered that we should not be charging different fee levels for oral and paper hearings; that we should be looking at ways to reduce the cost of oral hearings; that we need to ensure that the system is still flexible enough to allow judicial discretion to direct an oral hearing if necessary; and finally, that given the increased chance of success at an oral hearing, we are creating an unfair divide in terms of access to justice between those who can afford an oral hearing and those who cannot. 13

20 Our consideration of these concerns: 49. The purpose of introducing fees is not to create new income, but to move some of the costs of administering justice from general taxation to the direct users of the service. As different users of the service generate significantly different costs, we consider that it remains reasonable to charge different users different amounts for the administration of their appeals in broad relation to the costs incurred. There are some fixed costs such as the provision of hearing rooms, judges and ushers which mean that an oral hearing is always likely to be more costly than a paper hearing regardless of potential improvements in administrative efficiency. 50. However, we accept that any fee charging system that is introduced should not stymie justice and we do not wish to introduce any policy that would be seen to be fettering judicial discretion to direct an oral appeal. For this reason, should a judge determine that an oral hearing is required (notwithstanding that the appellant has not asked for one and/or paid for one) the appellant shall be given an oral hearing at no extra charge to themselves. 51. If an oral hearing is requested and paid for at the outset of the process the Tribunal will list the appeal for an oral hearing even if no details of a UK based representative or sponsor are provided on the notice of appeal. In the event that the appellant is unable to attend the hearing (for example because they are out of country) and unable to find a UK representative and/or sponsor able to attend the hearing, in normal circumstances a judge will still decide the case in a hearing room rather than in chambers, and in the event a representative or sponsor is able to attend they will be able to access the hearing. 52. In certain circumstances a judge may direct that an oral appeal that has been requested and paid for by an appellant be determined on the basis of the filed papers without a hearing. In those circumstances the appellant will be given the opportunity to apply for a refund of the difference between hearing types because an oral hearing was paid for and a paper determination took place. 53. We accept that our statistics support our respondents view that a larger proportion of appellants who attend oral hearings are successful on appeal than those who appeal only on paper. However, we do not accept that this necessarily implies in any individual case that it is more likely to be successful if presented at oral hearing rather than considered on the papers and we do not accept that paper hearings do not provide just decisions or that they 14

21 provide a poorer standard of justice than oral hearings. Ultimately it is matter of choice for the appellant as to whether they wish to have an oral or paper hearing. 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)? 54. Respondents were universally against charging more for managed migration (settlement) cases, and entry clearance officer (settlement) cases. Many felt that it was unfair to charge a higher fee especially for those appellants on low income and that it would lead to unjust and inconsistent outcomes. One respondent commented that: For many people this will hinder them from applying to bring their family over either in the first place or to appeal what they consider an erroneous decision, which could be a breach of their Human Rights 55. Another respondent asserted that if a migrant meets the Rules in order to qualify for settlement, they should not incur further obstacles in seeking to appeal a decision taken against them. Our consideration of these concerns: 56. While acknowledging respondents concerns, we remain of the view that as different users of the service generate significantly different costs in the administration of their appeals, it is reasonable to charge different users different amounts. We also remain of the view that it would be fair and proportionate to charge a higher rate of fee for managed migration (settlement) cases and entry clearance (settlement) cases which typically involve a greater duration of Tribunal proceedings and therefore can cost more to provide as well as generate wider benefits for the successful appellant. 57. However, in acknowledgement of respondents concerns we will not introduce differential fees immediately. Rather, we may seek to do so once the broader fees system has been established, taking into account our experience of operating the new system. The potential impacts of differential fees - on individuals, the business sector and academic institutions - will be considered 15

22 in detail prior to the introduction of such differential fees and we would consult on any such proposals as part of the annual review of fee levels. Q5 What other factors do you think we should take into account when setting a fee? 58. Respondents detailed a number of factors in support of, and against, the introduction of fees. 59. For example, some respondents considered that the current economic climate told against the introduction of fees, with one respondent highlighting: The recession: Many people will have, or will lose their jobs and cannot afford for this. This will be an extra stressful factor. And will only add to people experiencing negative mental health and be irritated with Britain, and who then may be more open to extremeism and possibly terrorist acts. 60. However, other respondents considered that the current economic climate necessitated the introduction of fees, with one respondent commenting that: In the present financial climate it is desirable and inevitable. Present situation is not fair or tenable. 61. Other respondents were critical of the UKBA s quality of initial decision making, and considered that the appeals system should be free to the user because it corrected wrong decisions made by the UK Government in the first place. One respondent commented that the: 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 Our consideration of these concerns: 62. We recognise respondents concerns that the current economic climate makes it more difficult both for the UK taxpayer, and for direct users of the appeals system, to meet the costs of the appeals system. We believe it would be unfair for either the UK taxpayer or direct users of the appeals system to shoulder these costs alone, and consider that our proposals will more fairly spread such costs. 16

23 63. We also acknowledge respondents concerns about the perceived quality of the UK Border Agency s decision-making. As explained in relation to question 10, as a result of this consultation we will make provision for the award of costs to successful appellants in certain circumstances up to the level of the fee paid, with these costs to be met by UKBA. 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. 64. Respondents universally agreed that appeals against decisions with regard to deportation, revoking a person s leave to remain, deprivation of citizenship or right to abode should not attract a fee. For example, one respondent commented that: The decisions of the Secretary of State cited above are of fundamental importance to the individuals to whom they apply. They should not attract a fee. We include in this those subject to administrative removal. Our consideration of these concerns: 65. We agree with respondents views on this issue. Decisions with regard to deportation, removal, revoking a person s leave to remain, or deprivation of citizenship or right to abode will not attract a fee. For a more detail explanation please see our response to question 1. 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? 66. As noted in response to question 1, respondents suggested a number of additional possible groups of people that could be exempt from paying fees. For example, some respondents recommended exempting anyone in destitution, on section 4, or eligible for legal aid, while others advocated exempting anyone receiving section 98 support. 67. Several respondents also recommended introducing a simple means test whereby those on a certain level of income or below are entitled to a free appeal. 17

24 Our consideration of these concerns: 68. As detailed in response to question 1, we agree that any appellants receiving section 95 or section 98 asylum support should be exempt from paying tribunal fees. 69. We also recognise the suggestions made by respondents that we could introduce a means test, along similar lines to the existing test to determine whether a person is eligible for legal aid, to determine whether they are able to afford the cost of fees for making an appeal. We consider that the existing tests for determining whether a person is eligible for legal aid currently fulfil this function. 70. However, as explained in response to question 9 the MoJ is currently undertaking a review of legal aid, which proposes that legal aid is removed for immigration cases (but not asylum). We indicated in our consultation paper that if this proposal is implemented and as a result affects the availaibilty of legal aid in immigration appeals and consequently our assumptions about the impact of charging appeal fees to appellants of limited means we would consult again on an alternative remissions and exemptions policy to ensure that access to justice in immigration appeals is appropriately maintanied. This remains our intention. 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? 71. Consultation respondents universally agreed with this proposal. Our consideration of these concerns: 72. We agree with respondents views on this proposal. Asylum appellants in the UK Border Agency s Detained Fast Track process will be exempt from paying a fee. 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? 73. In the original consultation paper we stated that we had carefully considered the possibility that introducing fees would cause some potential appellants to forego an appeal because they could not afford the fee. We had therefore decided that those appellants who qualify for legal aid should not have to pay the fee themselves. It was our intention that in respect of appellants who 18

25 qualify for legal aid, the legal representative who had determined that they met the means and merits test and would represent them, would pay the appeal fee on behalf of the appellant and claim the fee back from the Legal Services Commission (LSC) or equivalent bodies in Scotland and Northern Ireland as a disbursement. We also indicated that the Tribunal will reimburse the Legal Aid budget for the cost of an appeal fee. 74. Most respondents agreed with the proposal that appellants who qualify for legal aid should not have to pay the fee themselves and that instead this should be funded by the legal aid budget. 75. However, there were concerns that appellants could qualify for legal aid, but be unable to get it, because some solicitors did not have the capacity to take on any new cases. They advocated that the MoJ should have a system which entitles those who are entitled to legal aid, including those who represent themselves, or who cannot find a solicitor, to access the exemption. 76. Other respondents were concerned with the practical implementation of our proposal as it meant that solicitors would have to pay the fee to the Tribunal, then for the fee to be paid to LSC, which would then have to reimburse the solicitor. Such a situation would only lead to a further layer of bureaucracy and wastage of already scarce public funds. 77. Most respondents were concerned that the likely reduction of provision of legal aid would make it more difficult for those wishing to make an appeal to be able to afford to do so. For example, one respondent observed that : the consultation is conducted before the evaluation of the ongoing legal aid reform consultation from the Ministry of Justice which would have a further enormous implication on immigrants and asylum seekers and their access to justice. 78. Several respondents suggested that the Ministry of Justice (MoJ) should establish and either administer a means test themselves or allow representatives to do it. Our consideration of these concerns: 79. As noted in the consultation paper, the MoJ is currently undertaking a review of legal aid, which proposes that legal aid is removed for immigration cases (but not asylum). However, we understand that implementation of any legal aid scope would not take place until October

26 80. We indicated in our consultation paper that if this proposal is implemented - and as a result affects the availaibilty of legal aid in immigration appeals and consequently our assumptions about the impact of charging appeal fees to appellants of limited means - we would consult again on an alternative remissions and exemptions policy to ensure that access to justice in immigration appeals is appropriately maintanied. This may take the form of a means test. 81. We have also noted the concerns raised by respondents about the practical implications of reimbursing the LSC for payment of the tribunal fee. We have no intention of creating a system that could become overly bureaucratic and risky. For this reason we have decided to change our original proposal to charge legal representatives of appellants who are in receipt of legal aid upfront and instead will exempt them altogether from paying a fee. 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? 82. There was a significant weight of opinion in the consultation responses against the introduction of a charging regime with no prospect of a successful appellant being able to recover their fee by way of a refund from the Tribunal or the award of costs to the level of the fee against the UKBA. Many respondents considered that the Secretary of State for the Home Department should pay the appeal fee if the appeal were successful as it would be unfair to require an applicant to pay one arm of the state in order to correct an error made by another. It was also argued that our proposal provided no incentive for UKBA to get their initial decisions right as the financial impact of correcting their erroneous decisions was borne not by UKBA but by the appellant. 83. By way of example, it was argued that a refund was appropriate in cases where documents included in an application failed to be considered (or were misunderstood) by UKBA caseworkers and the applicant chose to appeal (this being their only opportunity to explain that there had been a mistake by a caseworker). It was argued that these appellants should not have to pay more for the correct decision than someone who had been fortunate enough to get a correct decision first time round. 20

27 84. Concerns were also raised about the legality of our proposals with the point raised that under EU law it is generally unlawful to charge a fee for a residence document (Article 25 of the Free Movement Directive 2004/38/EC). For example, one respondent commented that: It is highly arguable that to have to pay a non refundable court fee to demonstrate that you were after all entitled to a document issued free of charge contravenes this principle those who establish that the immigration decision is contrary to Art 8 ECHR are entitled to an effective remedy to challenge a flawed decision and obtain compensation if s/he is the victim of an unlawful decision in this respect. Imposing a non refundable fee as a precondition for overturning a flawed First-tier assessment may contravene Art 8 and Art 13 of the ECHR and /or significantly increase costs to the public purse if the only remedy to recover the fee after a successful appeal is the institution of civil proceedings against the MOJ to get the money back. 85. The majority of respondents also disagreed with the proposal that the Tribunal itself should make a refund only if a payment was made by mistake. The fact that in the Upper Tribunal an appellant is seeking redress on the basis that the First-tier Tribunal has made an error it was argued was particularly unfair, as we would be charging to correct our own decisions. Our consideration of these concerns: 86. As a result of the responses to this consultation we intend to introduce a discretionary power for the judge in a case to award costs to recover appeal fee charges against UKBA. The policy intention behind this is that costs would only be awarded, up to the level of the appeal fee, where the decision should clearly have been made in favour of the appellant in the first place on the information presented by the applicant at the time of the initial decision. We would not expect a cost award to be made in cases where an individual introduced new evidence at appeal or otherwise contributed to the need for an appeal by his/her actions 87. UTIAC will be able to revisit any ruling made by the FtTIAC on costs, but only when considering the substantive matter of the appeal. There is no right of 21

28 appeal to the UTIAC purely on the issue of costs. In considering the substantive matter, UTIAC may uphold, vary, or quash any award made by the FtTIAC, or indeed where appropriate make an award where the FtTIAC did not. 88. We have also accepted respondents views that administrative refunds should be given where it is appropriate and fair i.e. where someone has mistakenly paid for an appeal or has overpaid. 89. However, we consider that where there is a claim under the ECHR, an appellant will not be denied access to justice because they are unable to pay a fee for the following reasons: For those who cannot pay, legal aid may be available. We understand that there is nothing preventing those appealing from outside the UK from applying for legal aid. All applicants for legal aid will be subject to a means test. If they have insufficient means and pass the merits test, they will receive legal aid and be exempt. Under regulation 4 of the Community Legal Service (Financial) Regulations 2000, as amended, persons on certain benefits including income support and incomebased jobseeker's allowance, will be passported through the financial eligibility test for legal aid. In so far as there are a group of persons who will be unable to pay, do not benefit from the exemptions, and wish to challenge a decision on Convention grounds the power to reduce or remit in exceptional circumstances will also remain. On application for the exercise of the Lord Chancellor s discretion a certificate of fee satisfaction would be issued. If discretion is exercised in the appellant s favour the appeal will continue. If the Lord Chancellor is not convinced that the appellant could not pay then the discretion would not be exercised in the appellants favour and he or she would be asked to pay. 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? 90. A significant number of consultation respondents indicated opposition to this proposal, with one respondent commenting that: 22

29 There are many reasons for an appeal being out of time. Quite often there are credible circumstances for putting an appeal in out of time. Refunds should be available for these cases too. 91. Another respondent commented that invalid or out of time appeals could be the result of the Notice of Decision being unclear in stating either how, or the date by which, the appellant has to respond. Also, it is not clear to appellants whether Notice to Appeal has to have reached the tribunal by this date or just be sent by this date. The Notice of Decision needs to give clearer instructions and instead of instructing appellants how to calculate deadlines, should identify the deadline as a particular date. 92. It was also argued that if the UKBA withdrew its original decision, on the basis that it could not justify the refusal in court, it was unfair to expect the appellant to pay a fee. Our consideration of these concerns: 93. As noted in response to question 10, we intend to make provision for judges to award costs (up to the value of a fee) to successful appellants. While we appreciate the other concerns raised by respondents, and that there can be a range of circumstances for appellants making out of time, invalid or withdrawn appeals, we do not consider these provide sufficient grounds for making refunds for such appeals. 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? 94. As noted in relation to questions 1 and 7, respondents suggested a range of additional categories that could be exempted from having to pay a fee for making an appeal. Consultation respondents suggested that tribunal judges should be empowered with the discretionary power to waive fees, rather than this being limited to the Lord Chancellor. 95. Respondents also commented that the system for utilising this discretionary power would need to be effective, with one respondent commenting that: Care must be taken when designing the system to ensure that appeals do not become out of time purely on the basis of a delay in considering whether to exercise discretion. Indeed, we would caution against any system that would involve two 23

30 separate applications, i.e. one to the Lord Chancellor for discretion and one to the Tribunal for the appeal. Such a system would double the amount of administrative work required and will place additional burdens on legal representatives. Our consideration of these concerns: 96. As noted in our response to questions 1 and 7, we do not consider that the additional categories of exemptions suggested by respondents represent people who: might wish to bring an immigration or asylum appeal and cannot afford to pay; and who will not already be eligible for legal aid, asylum support funding or otherwise covered by our extended exemption policy. 97. We have considered respondents suggestions that tribunal judges should be enabled to waive fees, but consider that this function can most effectively be performed by administrative staff on behalf of the Lord Chancellor. 98. We have also noted respondents concerns that the system for utilising this discretionary power must not inadvertently cause appeals to become out of time, and will ensure that the processes are designed effectively to avoid this outcome. 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? 99. All respondents were in agreement that appellants should not have to pay an additional fee to make an onward appeal to the Upper Tribunal. Many respondents commented that, as the function of the Upper Tribunal is to determine whether the First-Tribunal has made an error of law, it is not reasonable that an appellant should have to pay to correct that error Some respondents commented that, if appeal charges are to be introduced, then the fee should be a one-off fee payable at lodgement of an appeal to the First-tier Tribunal which then allows access to both the First-tier Tribunal and the Upper Tribunal irrespective of whether the route to the Upper Tribunal is via a First-tier Permission Application or, (FTPA having been refused) an 24

31 application for permission to the Upper Tribunal. For example, one respondent commented that: If appeal charges are introduced then the fee should be a oneoff fee for the Tribunal system to include the First-tier Tribunal, Upper Tribunal Permission Application and Upper-tier Tribunal. We wholly oppose the proposals detailed in the Impact Assessment of introducing a 50 charge for the Permission Application and an additional 200 for the resulting Upper-tier Tribunal hearing Concerns were also raised that fees in the Upper Tribunal may complicate and delay consideration of cases where speedy throughput has been a priority. Our consideration of these concerns: 102. We believe there is considerable merit in respondents argument that it is not fair to charge an appellant an additional fee to correct an error of law made by the First-tier Tribunal. We also recognise that it would be administratively simpler for us to require appellants to provide only one fee for using the Tribunal Against this argument, we have weighed concerns that the First-tier Tribunal has already considered whether it may have made an error of law in respect of a failed First-tier Permission Application, and that this second permission application is to a separate appellate body, will incur further administrative costs, and therefore could be considered to warrant a separate fee. We have also considered the argument that more people may make onward appeals to the Upper Tribunal, if an additional fee is not required Taking into account respondent s views, together with the additional administrative burden this would cause, we have decided to withdraw the proposal to charge a fee in the Upper Tribunal for the present, but may revisit the possibility of doing so in the future. 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 25

32 105. Those respondents who responded to this question were universally in agreement that they were opposed to fees being charged for an onward appeal to the Upper Tribunal at all, but that if such fees were introduced, they should be at a lower level than previously charged by the Administrative Court. Our consideration of these concerns: 106. As explained in respect of Question 13, we no longer intend to charge fees for an onward appeal to the Upper Tribunal. 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? 107. Many respondents were concerned that this proposal could lead to more appeals being late, particularly as postal services across the world have varying degrees of accessibility, and some applicants would not have a sponsor or access to a fax machine The reliability of a single-lodgement system was also questioned, with one respondent commenting that safeguards would need to be in place to prove applications and documents had been lodged It was also suggested that this proposal: will add to the administrative work of the Tribunals Service it is not clear what work has been done to quantify that potential cost, and whether the proposal will actually produce the savings claimed for it. Our consideration of these concerns: 110. We agree with our respondents concerns that postal services around the world do vary in accessibility. However, we note that it can reasonably be argued that it will often actually be easier to access a particular country s postal service rather than to travel to the UK Embassy or High Commission post in that particular country. We note that our proposals also offer the opportunity to pay on-line which will provide other widespread points of access to appellants. 26