To fee or not to fee?
The Ministry of Justice’s abandonment of the new fee system for immigration appeals is a welcome climb-down, but we should be wary of assuming that increased fees are now ‘off the table.’ Whilst not a new policy, when Conservative Ministers first took office back in 2010 we started to see a much more aggressive approach to achieving “full cost recovery” through charging users for the costs of running courts and tribunals by extending fee regimes in tribunals and increased fees in civil and family proceedings. Since 2010 we have seen the introduction of fees for employment tribunals; new fee regimes of fees for civil and family proceedings including some so-called “enhanced” fees set at a level in excess of the cost of the proceedings to which they apply; and proposals (subsequently abandoned by Michael Gove) of mandatory charges imposed on anyone convicted of a criminal offence (the “criminal courts charge”).
For immigration cases fees were first introduced in the first-tier tribunal in 2011 – £80 for an application on paper and £140 for an oral hearing. Earlier this year the MoJ proposed that the fees in the first-tier tribunal should rise from £80 to £490 for an application for a decision on the papers, and from £140 to £800 for an application for an oral hearing. The Ministry of Justice also proposed the introduction of new £455 fee for applications to the first-tier tribunal for permission to appeal to the upper tribunal, and the new package included an £350 application fee for permission to appeal, where permission is refused by the first-tier tribunal, and £510 for an appeal hearing where permission is granted.
Despite having partially implemented these changes in October, the MoJ is now reverting to the previous system and “has decided to take stock and review the immigration and asylum fees, to balance the interests of all tribunal users and the taxpayer and to look at them again alongside other tribunal fees and in the wider context of funding for the system overall.” The Government’s statement goes on to say “The role of fees in the Upper Tribunal will also form part of the review. The focus of our work is now on carrying out that review. We will bring forward any new plans for Tribunal fees, including in the Immigration and Asylum Chambers of the First-tier and Upper Tribunals, for consultation in due course.”
So it is clear that new policy is being developed, especially in the context of the MoJ’s ambitious plans outlined in Transforming Justice. However, the full cost recovery drum is still beating and the digitisation of application procedures provides further opportunities to introduce pay as you go schemes for moving applications through the system. In the case of Immigration tribunal fees it seems that the MoJ’s modelling that the new fee scheme could bring in £37m annually was way out, so there was little to be lost by going back to the drawing board. The problem though of accurately modelling full cost recovery in practice though has been there from the beginning. When large fees were introduced for claims to employment tribunals, applications plummeted by 70% plus, so all of the MoJ’s estimates on fee income proved to be grossly optimistic – indeed the MoJ were scarcely able to produce an assessment of the impact of fees as their baseline assumptions were so wide of the mark. As the Justice Select Committee said in their report of June this year “There is a troubling contrast between the speed with which the Government has brought forward successive proposals for higher fees, and its tardiness in completing an assessment of the impact of the most controversial change it has made. Such assessments are crucial in enabling judgements to be reached on similar proposals, such as those issued in April 2016 on greatly increased fee levels in the Immigration and Asylum Chamber. The Committee went on to conclude-
“The evidence which we received in our inquiry on the likely impact of the proposed doubling of fees in the Immigration and Asylum Chamber caused us considerable concern. That concern has been magnified by the more recent publication of the Government’s proposals to set fees at a cost-recovery level, involving a six-fold increase in the fees currently charged. Neither do we believe that significant cost-recovery is ever likely to be realistic given the circumstances of most people who come through the immigration and asylum system. If these proposals are proceeded with, there is a danger that they will deny vulnerable people the means to challenge the lawfulness of decisions taken by the state about their immigration and asylum status. Given the experience with employment tribunal fees, we think it is unwise for the Government to have brought forward proposals for fees set at a level to achieve full-cost recovery in the Immigration and Asylum Chamber before having published its review of the implementation of employment tribunal fees.”
So far as LAG’s position goes, we think that the whole underlying logic of full cost recovery needs to be challenged and that courts and tribunals should be operated as efficiently as possible but not as profit or revenue generators for Government – fees are effectively a bespoke tax on justice, and a deliberate deterrent to seeking redress through the legal system. Of course some subsidy remains under the FCR principle for fee remission schemes for those on the very lowest incomes, but fee remission has proven to be a pretty ineffective way to help the poorest and involves significant bureaucracy. As far as the current Government goes they keep on trying to go even beyond the full cost recovery principle in charging users, and then appear to be surprised when users can’t afford it. Moreover access to justice is a right not a service, and it often seems unclear what the Government are really trying to achieve – higher fee income or lower numbers using courts and tribunals.
Even if there is a case for charging court fees, it doesn’t follow that the principle should be extended to tribunals which are designed precisely to be less expensive fora for adjudicating and delivering redress. Its especially important to maintain affordable access to legal redress in immigration cases as the quality of Home Office immigration decision-making is abysmally poor; the MoJ increases would have prevented even those with right of appeal from exercising that right especially as many immigration and asylum cases involve whole families. Under the MoJ’s abandoned fee scheme it would cost at least £4,000 for a family of five to appeal, clearly preventing the vast majority of immigrants from challenging unlawful decisions. Whilst the Government proposed to exempt those on legal aid from paying; however, most immigration cases are out of scope, therefore only a small minority would benefit from this.
So let’s be clear though when responding to consultations that those who most need the help of the justice system to protect their rights – especially vulnerable groups like refugees, should not be expected to bear disproportionate costs in getting those outcomes delivered. Yes by all means make the polluter pay, include court costs as a recoverable legal aid disbursement, and consider other cost-shifting mechanisms – but don’t create unnecessary and artificial financial barriers to accessing justice in the immigration and asylum tribunal.