UPDATE: The First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016 has been laid and brings the fee changes into effect on 10 October 2016.
The Government has announced its intention dramatically to increase fees for immigration tribunal hearings. The announcement is made in response to a consultation in which 147 out of 142 responses opposed the increases. The press release says:
The response announces our intention to:
- increasing the fee payable for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for a decision on the papers from £80 to £490
- increasing the fee payable for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for an oral hearing from £140 to £800
- introducing a fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal
- introducing a fee of £350 for an application to the Upper Tribunal for permission to appeal in that Tribunal (where the application to the First-tier Tribunal has been refused)
- introducing an appeal fee in the Upper Tribunal of £510
- extensions to the existing exemptions and remissions scheme that applies in the First-tier Tribunal and on whether the same scheme should apply in the Upper Tribunal.
The new fees will come into effect on 10 October 2016. The date for introducing fees for permission to appeal and in the Upper Tribunal is unknown at the date of writing.
So, the fees will shortly be as follows:
|Appeal type||Current fee||New fee|
|Application for a decision on the papers||£80||£490|
|Application for an oral hearing||£140||£800|
|Application to the FTT for permission to appeal to the UT||Nil||£455|
|Application to the UT for permission to appeal to UT||Nil||£350|
The percentage increase is over 500%. The immigration tribunal is thought to be the only part of the court and tribunal system in which full cost recovery is being sought from litigants. It is axiomatic that the impact will mainly be felt by ethnic minority communities.
The proposed exceptions to appeal fees have been very slightly widened to include the following:
- those in possession of a Home Office fee waiver
- those who qualify for legal aid or asylum support;
- those who are appealing against a decision to deprive them of their citizenship; and
- those children bringing appeals to the tribunal who are being supported by a local authority.
- those people appealing decisions to revoke their refugee or humanitarian protected status;
- those with parental responsibility for, children receiving support from local authorities under section 17 of the Children Act 1989 (or any equivalent legislation in Scotland, Wales or Northern Ireland);
- children who are being housed by a Local Authority under section 20 of the Children Act 1989 (or any equivalent legislation in Scotland, Wales or Northern Ireland).
It is also possible to apply for fee remission or reduction under paragraph 7 of the original First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011:
A fee specified in this Order may be reduced or remitted where the Lord Chancellor is satisfied that there are exceptional circumstances which justify doing so
The impact is likely to be a sharp reduction in the number of appeals. Potential litigants, many of whom might well have won their cases, will simply not bother and will instead reapply or go underground. There will no doubt continue to be plenty of work for immigration lawyers in a general sense, but far, far less for immigration barristers and judges.
When the Immigration Act 2016 is implemented and immigration appeals almost all become exercisable only on departure from the UK, the number of appeals would be likely to reduce even further. Paying a huge fee for an appeal at which one is not even permitted to be present seems particularly unlikely.
EU migrants are those most likely to be affected by this change; many appeal rights have already disappeared with the Immigration Act 2014 and there is likely to be a huge surge in the number of EU migrant tribunal appeals as some European nationals struggle to establish their right to remain in the UK in their aftermath of Brexit.