Martin Partington: Spotlight on the Justice System

At present, an individual pays a fee when they apply for leave to enter or remain in the United Kingdom. There is currently no fee for any appeal against a decision to refuse leave. The Coalition Government is  seeking views on proposals to introduce a fee for the majority of individuals who wish to bring an appeal against:

• a decision to refuse them leave to enter the UK;
• leave to remain in the UK; or
• permission to vary their current leave to remain in the UK.

There is no intention that an individual who is bringing an appeal against a decision refusing to grant them asylum and who is in receipt of asylum support or who qualifies for Legal Aid will  pay a fee.

The Consultation Paper summarises the proposals as follows:
The Lord Chancellor has the power, under section 42(1)(c) of the Tribunals, Courts and Enforcement Act 2007, to introduce fees in both the First-tier Tribunal Immigration and Asylum Chamber (FTTIAC) and Upper Tribunal Immigration and Asylum Chamber (UTIAC). The underlying policy of recovering costs through introducing fees is therefore not in question in this consultation. However, the Government believes that there is a sound policy reason to introduce fee charges at the initial level, and that with the proposed exclusions, this will ensure that access to justice is properly available.

In more detail: there are proposals 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;

Appeals from individuals who are facing action initiated by the State (e.g. deportation; revocation of indefinite leave to remain; or deprivation of citizenship) will not have a fee charged;

Overseas appellants should generally be liable to pay a fee;

There should be a special power, to be used at the discretion of the Lord Chancellor, to waive fees in exceptional or compelling circumstances;

Payment of the fee can be made by someone other than the person bringing the appeal;

There sh0uld be no refund of the fee if an appeal is successful, withdrawn, invalid or out of time (as the Tribunal incurs costs in processing the appeal irrespective of the outcome);

Charging a two stage fee for some appeals to the Upper Tribunal;

Moving 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;

All individuals bringing an appeal (unless exempt), including dependents and children, must pay a fee.

It is not suggested that the fee should cover all the cost of the tribunal – but it is likely to be set at a percentage of the cost of the average case, perhaps 25%. The Consultation period on these proposals runs until 21  Jan 2011

The significance of these proposals – which have not been widely publicised – should not be underestimated. It seems quite possible that consideration will be given to charging fees in other tribunal contexts – Employment Tribunals would seem a possible candidate.

The consultation may be found at

http://www.justice.gov.uk/consultations/docs/tribs-fees-consultation-paper-cp10-10a.pdf