In recent years the Government has taken steps whose effect is to prevent Home Office caseworkers' decisions being scrutinised by an independent body. The Government has reduced appeal rights so that the vast majority of immigration decisions no longer carry a right of appeal to the Tribunal. It has also introduced legislation meaning that some appeals can only be pursued once a person has left the UK. New legislation passed this year will have the effect of curtailing the rights of appeal that a person can exercise while still in the UK even further. These fee increases will have the same effect - even fewer people will be able to access an independent review of their immigration or asylum related application.
Home Office casework decisions are notoriously error-prone. For example, between October and December 2015, 41% of appeals against Home Office decisions were allowed in the First-tier Tribunal. The Parliamentary and Health Service Ombudsman revealed serious problems with Home Office decision-making, upholding 70% of complaints made. The Ombudsman commented that "delays, poor decision making and not doing enough to address the injustice caused to individuals and their families are key issues in complaints about the Home Office".
When the decision involves something as serious and irreversible as sending someone back to face potential torture or death, this is simply unacceptable. However, the gravity of the consequences don't seem to reduce errors. In 2015, the Refugee Council noted that 90% of Home Office refusals of refugee protection by Eritrean asylum seekers were being overturned by the Tribunals on appeal. Eritrea is a country that has been frequently described as Africa's North Korea, and is ruled by one of the most violently repressive regimes in the world. This month a tribunal ruled that the Home Office was wrong to treat Eritrea as safe. Without access to appeals, the Home Office would have been sending far more people back to face serious harm.
Key Areas of Concern for JCWI
- Out of Country Appeals
- Legal Aid
- Closure of Appeal routes
- Tribunal Fee increases
Our success on Immigration Tribunal fees
We are very pleased to be able to announce that following our pre-action correspondence with the Lord Chancellor, the Ministry of Justice has decided to roll back huge increases to appeal fees in the Immigration and Asylum tribunal. From Friday last week, all Immigration Tribunal fees are being charged at the old rates, and everyone who paid the higher fees will have them refunded.
It is fantastic that the Government has stepped back from an untenable position and has avoided unnecessary and costly litigation at the public expense. Raising appeal hearing fees to £800 was an unequivocal attack on the rule of law, and on the principle that justice is for all, not only for the rich.
In this instance, not only has a terrible policy been reversed, but we are now in a better position than we were before. The new exemptions regime, which is more generous than the old one as a consequence of our representations to the MOJ, will remain in place. During our pre-action correspondence with the Lord Chancellor we also received further assurances about the exemptions regime, and we will continue to press to make sure they are implemented.
However, this issue is far from settled. The Government intends to review its position on fee increases and to come out with new proposals to allow it to set higher fees and to recover more money from the Tribunal. While we can hope that the new measures will be less appalling, it is still very likely that they continue to reduce access to the courts for some of the most vulnerable in our society. Almost certainly they will be designed to be harder to challenge in the courts.
We at JCWI will continue to monitor this issue closely. We will work to prepare to respond to the next consultation on fees and, thanks to the support of our backers, we will be ready to challenge any unlawfulness in the next set of proposals.
These proposals will greatly reduce the ability that people have to hold the Home Office to account for incorrect decisions that ruin lives.
Changes to the fees guidance
As well as helping to secure the reversal of the fees policy, we have also managed to improve the guidance on fee exemptions.
We worked to prepare a judicial review claim in the High Court arguing that the proposed fees increase is unlawful and a disproportionate restriction on access to justice and the protection of human rights. We instructed Liberty to act as our solicitors in this matter and our barristers are Laura Dubinsky from Doughty Street Chambers, and Karon Monaghan QC from Matrix Chambers.
Through pre-litigation correspondence we were able to improve the guidance that the Lord Chancellor has issued on fee remissions. As a result of formal steps we took to launch our legal challenge against the fee increases, the Lord Chancellor has:
- Agreed to amend the wording of her guidance on remissions to remove words that wrongly suggested applicants for a fee remission would have to show that their case was ‘unusual’ in some respect;
- Confirmed that the application of the Lord Chancellor’s power to remit fees would not be discretionary: anyone who can show that they cannot realistically afford the fees must be granted a remission;
- Stated that that it is the practice of HMCTS to allow a further 14 days for new evidence, if an application for fee remission is made with insufficient evidence.