Posted on November 25th 2016
We at JCWI were overjoyed to see Sir Oliver Heald’s unexpected announcement that the Government is backtracking on the huge fee increases imposed on the Immigration and Asylum Tribunal in October this year. JCWI has been, and will continue to be active in fighting against any future proposals that will affect access to the Tribunals. We and our legal team at Liberty were in the process of bringing a legal challenge against the fee increases, and were in pre-action correspondence with the Lord Chancellor on the matter. We are pleased that the Government has receded from its untenable position, though we are concerned that the intention is to bring back these proposals in future.
From today everyone pursuing immigration and asylum appeals in the First-tier Tribunal will pay the old fees which are far lower (£140 instead of £800 for a full hearing in court and £80 instead of £490 for a paper hearing). Everyone who has had to pay higher fees will be able to have the difference refunded.
The new, slightly more generous, system of fee exemptions and remissions in place from 13 October will remain in place. In the course of negotiating with the Lord Chancellor prior to bringing a legal challenge against the fee hikes, we obtained concessions and clarification on how the exemptions should be applied by court staff. We will continue to press to make sure that these are implemented.
Sadly it is not all good news. Commenting in the Guardian a Ministry of Justice spokesperson stated, “Our commitment to fee reform is unchanged, and we will bring forward new plans in due course”.
This intent stems from a fundamental problem with the Ministry of Justice’s approach to court fees. They want to make the courts and tribunals system financially self-sufficient, so that the users of the justice system pay the full cost, and there is no additional cost to the taxpayer. Taking a broad view, this is antithetical to the most basic functions of a democratic state. One of the primary purposes of having a nation state, civilisation, and the rule of law is that everyone is able to settle disputes or challenge unlawful actions before an independent systems of courts and tribunals. All of us are ‘users’ of the justice system, whether we happen to be involved in court proceedings at the moment or not. All of us have an interest in a society governed by laws that protecting everyone rather than just those who can afford to pay for them.
More narrowly, the desire to make immigration appeals pay for themselves is financially incoherent. In the Immigration Act 2014 most appeals against immigration decisions were scrapped and replaced with 'administrative review' by the Home Office. The only cases in which people can appeal to the Tribunal now are human rights cases, asylum and refugee protection cases, and cases involving fundamental EU rights. If, as the Lord Chancellor claims, those who can’t afford the fees won’t have to pay them, it leaves very few people left who are going to be contributing to the system.
From the beginning we have suspected that these measures were more about reducing scrutiny of poor Home Office decision making, rather than raising funds. We hope that in undertaking a review of these measures, the Government can show us that they take access to justice seriously.
We still urgently need to gather evidence of how fee increases in the Immigration and Asylum Tribunals will affect those who are unable to pay. If you have any information about how you or others were affected in the period of the fee hikes please let us know. Please also get in touch if you or your clients won your appeal, but would be unable to pay the increased fees or to get an exemption. You can contact us at firstname.lastname@example.org.
Jan Doerfel wrote on November 25th 2016
The scrapping of these fees is very welcome and somewhat overdue given the consistent and overwhelming opposition from the spectrum of users and professionals alike.
Going forward, and reflecting on the current hike, exorbitantly charging the most vulnerable for access to justice is not a 'saving' and should not be characterised as such because it was never, nor should it be, vulnerable court users' reaponsibility to plug the gap in MoJ funding particularly with such disproportionality and prohibitive effect.
The hike also arguably breaches international law.
Access to justice is a right to enable enforcement of human rights and hence is a state's duty to provide - it is not a commodity.
Commoditising or taking steps which effectively commoditises access to justice erodes the rule of law.
The key issue will be to see and dialogue, as with the recent consultation, that if there must be fees at all, they should be proportionate, not prohibitive.