(12 years, 7 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord McNally
That the draft order laid before the House on 12 July be approved.
Relevant Document: 27th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the draft order prescribes the fee to be paid by a person who appeals to the Immigration and Asylum Chamber of the First-tier Tribunal. The draft order also sets out the situations in which a person will be exempt from paying a fee and where a fee may be deferred, reduced, remitted or refunded. To facilitate the new fees regime, changes will be required to the Asylum and Immigration Tribunal (Procedure) Rules 2005. If the draft order is agreed, changes to those procedure rules will be made in another instrument.
At present, the cost of administering the asylum and immigration appeals system is met chiefly by the UK taxpayer via the Ministry of Justice vote, although a contribution is made from visa application fees charged by the UK Border Agency. In 2010-11 the total cost of the system was about £108 million. In that year the taxpayer paid approximately 87 per cent of that cost, with the contribution from visa fees amounting to £14 million. It is essential that we continue to provide effective access to an independent, cost-effective tribunal for those challenging decisions made by the UK Border Agency. However, 60 per cent of appeals to the tribunal are refused. The Government find it difficult to justify why the UK taxpayer should continue to fund almost the entirety of the cost of failed appeals, many of which are wholly without merit, and believe that where tribunal users can afford to make a contribution they should do so.
We are not the first to consider this. Noble Lords may be aware that a consultation paper in 2009 on immigration and visa applications by the previous Administration asked whether users of the tribunal ought to make a contribution to its costs; respondents agreed that they should. In addition, charging for immigration appeals was one of the ideas submitted in response to the Government’s spending challenge in 2010 and identified as one of the suggestions that would be taken forward by the Prime Minister in August 2010. We consulted on the proposals which form the basis of the order in October 2010 and we have made a number of important changes to them in light of the responses to that consultation. I shall explain what those changes are shortly, but before I do I will set out the types of appeal that will generally attract a fee and the range of exemptions that will apply.
Appeals which will, in principle, attract a fee are family visit visa appeals from people refused a visa to enter the UK on a temporary basis to visit a family member; managed migration or in-country immigration appeals from those already in the UK seeking to extend or change the terms of their stay in the UK; entry clearance officer appeals, which are a large range of different appeal types from individuals overseas who have applied for permission to come to the United Kingdom, either permanently or temporarily, but have had their applications refused because they did not meet the requirements of the Immigration Rules; and asylum appeals from people who have been refused asylum.
As for the actual fee levels, where an appellant indicates that they want an oral hearing, the fee will be £140. Where an appellant indicates that they do not require an oral hearing and an appeal can be decided on the basis of the papers alone, the appellant will be required to pay £80. The order includes provision for a wide array of remissions and exemptions. Appeals brought against decisions where action is initiated by the state should, in our view, be exempt from paying the fee. These will include appeals such as deportation, deprivation of citizenship or revocation of indefinite leave to remain. We will also not charge for appeals where the appellant is in the detained fast-track process. Anyone in receipt of legal aid or asylum support will also be exempt.
Some of your Lordships may be surprised that we are seeking to charge for asylum appeals at all. If so, I can reassure them that most of those refused asylum will benefit from exemptions under the order. Where they do not, the hearing of their appeals will go ahead anyway, whether or not a fee is received. Where such an appellant remains liable to pay a fee it is hoped that it will be paid in due course, and it will remain open to the Lord Chancellor to seek to enforce payment through the usual civil enforcement procedures should it not be paid. However, every appeal from a failed asylum seeker, whether rich or poor, will be heard whether or not the fee is paid. There is thus no question of disadvantaging asylum seekers by the implementation of these proposals. There is also a power for the Lord Chancellor to reduce or remit fees if someone does not fall into any of the proposed exemption categories and can demonstrate that there are exceptional circumstances why they cannot, or ought not, pay the fee. Overall, I am confident that the introduction of the fees should not prevent access to justice.
Your Lordships will also be aware that the Legal Aid, Sentencing and Punishment of Offenders Bill, currently being considered in the other place, includes proposals to make changes to the availability of legal aid for those making appeals to the tribunal and others. We made clear in our consultation paper on fees and in the response to that consultation, and I do so now again, that it is our intention to bring forward in due course a revised remissions and exemptions scheme in respect of liability to pay fees in the tribunal to take account of the proposed changes to legal aid. The exemptions and remissions set out in the instrument before your Lordships tonight, therefore, in so far as they provide for the remission of fees by reference to the receipt of legal aid, are intended to apply only under the current legal aid arrangements and will not apply under any future legal aid regime, in respect of which we will bring forward alternative proposals for the remission and exemption of fees in due course.
As I have indicated, the Government carefully considered the views expressed by those who responded to the consultation, including the Administrative Justice and Tribunals Council. This has led to a number of significant changes to the draft order and the proposed changes to the procedure rules. Foremost of these is the power for the tribunal to make an award of costs against the UK Border Agency to successful appellants up to the amount of any fee paid. This will allow an appellant to recoup their appeal fee where a clear mistake has been made by the UK Border Agency. It is also envisaged that the prospect of costs being awarded where mistakes are made will encourage the UK Border Agency to improve the quality of its initial decision-making to minimise such a financial penalty. That power will be included in the procedure rules rather than the order before the House today.
The other main change to the proposals originally consulted on is the retraction of plans to charge a fee in the Upper Tribunal. We accept that further appraisal of that option is required and the Government do not plan to introduce fees for onward appeals to the Upper Tribunal at this time.
This Government are fully committed to ensuring that all tribunals remain accessible and provide a high-quality service for their users. Whether appellants are bringing appeals from within the UK or from overseas, the introduction of fees does not affect that commitment. The draft order and the consequent changes to the procedure rules seek to redress what the Government consider to be an imbalance in the way that the tribunal is funded. They make provision to require users of the tribunal to make a contribution towards the cost of the service they are using, and to reduce the financial burden on the UK taxpayer without restricting access to justice. I commend the draft order to the House and I beg to move.
Lord Thomas of Gresford
My Lords, my noble friend said in introducing this order that many of the appeals are “wholly without merit”. The question is, which? That is what the tribunal exists to determine. It is impossible to start off on the basis that an awful lot of these appeals are without merit. My noble friend said that this bright idea came forward as a response to the spending challenge that was put out by the coalition Government when they came into power. It is a terrible idea when it is examined. The Explanatory Memorandum makes that quite clear.
The first point that has to be made is that it is one thing to fund the civil courts of this country by fees where a person brings an action—that is, he takes a decision to start a case by the issue of a writ or a summons—but, as the Explanatory Memorandum makes clear, this is the first instance of fees being imposed in tribunals where there has been action by the state against the individual. This is not an individual who started things up himself, as happens in High Court or county court proceedings; this is where the state has taken some action against which the individual wishes to appeal. The power to impose fees in tribunals has previously been exercised only in the areas of gambling and land.
We move from gambling and land to an extremely sensitive area of policy, immigration and asylum. Why? Paragraph 3.1 of the Explanatory Memorandum says that,
“the Government considers that it is not reasonable for the state to continue to fund the remaining cost of the appeals system. The Government believes that it is appropriate that users of the Tribunal contribute towards the cost of their appeal where they can afford to do so”.
However, as I say, this is not a situation where the appellant in one of these tribunals has initiated things; it is a case where he is appealing against an action that the state has taken.
It is not surprising, as paragraph 8.2 of the memorandum reveals, that:
“Respondents to the consultation were generally opposed to the introduction of fees”.
Indeed, when it came to the suggestion of imposing fees for the Upper Tribunals, they were,
“unanimous in their view that appellants should not pay”.
The Government have indeed responded to that.
One looks at the impact assessment to see how viable this scheme is. It really is very interesting. Under “Key assumptions” it says:
“It is unknown how prospective appellants will respond to fee-charging. A number of assumptions have therefore been made to produce illustrative estimates”—
it is a guess, in other words. It goes on to say:
“The Home Office is implementing significant changes to the UK’s immigration regime in 2011, which may affect the volume of appeals in future years and thus the costs and benefits of this proposal”.
The Government’s own proposals for changing the immigration regime will have an unknown impact. One would have thought that where there are changes to the regime, appeals will follow as people who are subject to orders made by the state test the boundaries of those changes as they have been made. It then says:
“The future success rate of appeals is unknown in which a cost award is made against UKBA”.
We are still in the realms of complete ignorance as to the effects of these proposals.
Paragraph 2.19 of the impact assessment, which refers to the principal groups impacted by the final proposal, says, under “Appellants”:
“Fees for Family Visit Visas were introduced in 2000 and subsequently reduced and then abolished in 2002. Research published by the Home Office in 2003 did not find conclusive evidence that these fees were a significant deterrent to legitimate FVV appeals. However, it is accepted that some individuals may currently choose to appeal because it is free but would not do so if a fee is payable”.
That assertion does not follow from the research that was done in 2003.
Paragraph 3.4 in the “Economic rationale” section says:
“The absence of fees means that the service is ‘over-consumed’”—
in other words, too many people appeal. It goes on to say that the users,
“are not exposed to any of the costs that the Tribunal incurs as a result of the appeal. A possible indicator of this ‘over-consumption’ is the failure rate of appeals, which represented a majority in each of the four main appeal types … disposed of in recent years”—
because there is a failure rate of appeals representing the majority, that shows that too many people apply. I go back to my original point that if many of the appeals are wholly without merit, the purpose of the tribunal is to determine which do have merit and which do not. You have to have a system that can come to that conclusion.
Paragraph 4.2, under “Cost Benefit Analysis”, says:
“We have no information on the scale of”,
fees for appeals that,
“will be paid by people living outside of the UK”.
Paragraph 4.3 says:
“We cannot predict how appellants will respond to the introduction of fee-charging”.
It goes on to say:
“For those appellants who will pay the fee, we assume that some of these appellants will decide not to appeal, but we cannot predict the size of this effect”.
Paragraph 4.6 points out that,
“there are no rules precluding individuals from submitting a new visa application rather than appealing an existing one”,
and it is cheaper to put in a new application under these rules than to appeal an adverse decision that has already been made. This means that instead of appealing, you pay a lesser fee and start an application all over again. That seems to me to be absolute nonsense.
When we look at ongoing costs, paragraph 4.27 says:
“These costs are likely to involve dealing with an increased volume of customer enquiries … and with the operation of a contract to collect, bank and administer the fee”.
There is a cost of administration there because you have to decide who is exempt and who is not. Someone has to make a decision: that is a person who is employed and paid a salary. Having done that, you then have all the business of collecting the fees. Paragraph 4.28 says:
“We expect that around three-quarters of asylum appellants would be exempt from paying fees, so debt recovery would never arise in any of these cases”—
that is regarded as a saving. In addition it says in paragraph 4.31 that,
“it has been agreed that HMCTS would pay any judge-ordered cost award to successful appellants and then recoup this sum of money monthly in arrears from UKBA. … However, it has not been possible to estimate these financial impacts at this time”.
Then, in paragraph 4.32, it says:
“UKBA would incur extra costs if some FVV appellants decide to re-apply for a visa instead of appealing because the visa fee would be less than the paper and oral appeal fee”.
Then, in paragraph 4.37, we see what the fee is to go towards. It is not going towards fixed costs, the buildings, but to variable costs, the fee paid judiciary. It says:
“In the short term only the variable cost element can be saved when the volume of appeals decreases, compared to the status quo. The Tribunal’s operating cost savings are based on”—
various estimates. I will not go into the detail of it. The point is that the whole purpose of these fees is to reduce applications and then some savings will be made in judge time.
I support my Government, of course, but I find it extraordinary that this tribunal order should have been brought forward in the way that it has. I think I have said all that I need to say on the topic.
Lord Newton of Braintree
My Lords, perhaps I may intervene briefly with a few things that will not surprise my noble friend on the Front Bench at all. The first is that, having made a speech in support of the Government in a rather different atmosphere in the House earlier on, I now wish to revert to type. The second is that I was around in 2009 when there was consultation on some earlier proposals. I think that I may even have spoken against them. I certainly did not like them then and I do not like these now. The third is that I pricked up my ears when he mentioned the body that I used to chair, the Administrative Justice and Tribunals Council, which, not to my surprise, has expressed some reservations about these issues. I have got them somewhere but, having been preoccupied on other matters, I have not studied them as carefully as I should. The last thing, as I have already indicated, is that I am not very happy with them, particularly in respect of the family matters to which he referred and asylum seekers.
That said, and bearing in mind that it would be rash of me to call a vote against these proposals, which I would not want to do, I acknowledge that significant efforts seem to have been made to meet some of the concerns expressed, in terms of exemptions, the removal of the Upper Tier from these proposals, and the statement that appeals will be heard, presumably even if the money is not found up front. However, that does give rise to the question of the expense of collection after the event which was implied, or indeed explicit, in my noble friend’s speech just now.
I draw some comfort from all that, and also from the fact—which I probably have in common with the noble Lord on the opposition Front Bench—that there was an indication that some of these matters will be stirred up again by the legal aid Bill, on which I plan to stir up a bit of trouble myself if I get the opportunity. So I shall rest at this moment and wait for future occasions before pressing the matter any further.
Lord Avebury
My Lords, I look forward to hearing from the noble Lord, Lord Newton, on the legal aid Bill. Stirring up trouble on that front will be music to my ears. My noble friend has demonstrated just now that imposing fees on appellants in the immigration and asylum appellate system is neither fair nor sensible. As we all know, the Government have to make economies in every area of their work, but the right way to proceed in this area would have been to reduce the need for appeals and hence the cost of the system, which has spiralled because of defects in the UKBA's own procedures.
First, the UKBA should conform to the law by changing its practice immediately when it has been found to be illegal. For an example of a case where it failed to do so, see the reaction to the decision of the European Court of Justice in Metock, a case which involved the rights of non-EU spouses of EU citizens.
Secondly, the UKBA should address those sectors of its decision-making which are manifestly not fit for purpose. My noble friend will have seen the report Unsustainable by Asylum Aid, showing that the UKBA consistently makes the wrong decisions on claims for asylum by women. There is a particular problem with cases where the applicant has suffered gender-based persecution. We dealt with this at Questions just now. This may satisfy the requirements of the refugee convention because the victims are members of a particular social group, an aspect of the law of which, astonishingly, many case owners appear to be ignorant.
Lord Bach
My Lords, I start by thanking the Minister for explaining the order in his opening remarks so clearly and succinctly. I also thank the other speakers in the debate. It could be argued that between them they pretty well demolished the entire point of the order. Of course, when we were in government, we too thought of this—but we did not implement it. It now falls to the Minister to justify why we should take the steps that he intends us to take.
Clearly, this is an important and controversial order. Many points that I wanted to make have been very well made already by the three Back-Bench speakers. It is an important moment not least because—as the noble Lord, Lord Thomas of Gresford, said, and as paragraph 4.1 of the Explanatory Memorandum states—this is the first instance of fees being imposed in an action by the state against an individual.
Secondly, perhaps a little less importantly—this point was made by the noble Lord, Lord Avebury—it would also be on top of the fee already paid for making the application that is being appealed against. This point was very well made by the Immigration Law Practitioners’ Association in its briefing to noble Lords.
The first application for leave to remain in the United Kingdom—the noble Lord, Lord Avebury, used this example—costs £900 per person. If it is made at the UKBA, the cost will be £1,250 per person. The fee is not for the appeal but for the original application. It costs £70 to apply for a visitor's visa from abroad. An application for a student visa costs £220, and there are other costs as well. The fee is not refunded if the application is refused. I suppose that some unmeritorious appeals might not be heard as a consequence of the order but I wonder, particularly after the analysis of the impact assessment made by noble Lords, how much the Government really expect to save from the order before us.
I pay tribute to the Government because they have conceded on more points following the consultation. This point was made by the noble Lord, Lord Newton of Braintree. They have made genuine concessions, particularly in the exemptions under Article 5 of the order in the areas of under-18s, children in need, asylum support, people in detention, appeals and decisions to remove. That is a more generous list than before the consultation began. However, the House would like to ask—noble Lords already have, in so many words—whether the exemptions are wide enough. In particular, Article 5(2) states:
“No fee is payable where, at the time the fee would otherwise become payable, the appellant is, under the 1999 Act”,
in receipt of legal aid. How can this provision be squared with the proposed withdrawal of legal aid for many areas? To put it mildly, there is an irony in its appearance in the order that we are being asked to pass tonight when the legal aid Bill is well on its way to this House.
Article 5(3) in a number of cases will become an irrelevance. Asylum cases will generally stay in scope, but much immigration law will be removed from scope if the Government get their way. I hope the noble Lord will not object if I repeat a question that was asked by my honourable friend Mr Andrew Slaughter MP, who spoke from the opposition Front Bench when the order was debated in another place on 14 September last. He asked why, if legal aid becomes no longer a criteria simply because it does not exist, an exemption should not be made for those on low incomes or specified benefits who would have been eligible for legal aid if it had still existed.
The Minister drew back the curtain a little on this when he said that the Government would come forward to make allowance for legal aid going out of scope. However, I would like him in his reply to tell us a little more about what the Government plan. Surely the criteria should remain the same whether legal aid exists or not. The Minister in another place did not answer that question in his summing up. I hope that the noble Lord will tonight.
Nor did the Minister in another place answer when he was asked to clarify figures from 2009-10 for success rates when public funding was available in these cases, and for when it was not. The noble Lord, Lord Avebury, told us about the difference between oral and paper hearings. These questions are about when legal aid was available. I ask whether the following figures are correct. As far as concerns migration, there was a 52 per cent success rate on appeal without legal aid but a 60 per cent success rate with legal aid. On asylum cases, there was a 25 per cent success rate on appeal without legal aid and a 37 per cent success rate with legal aid. For entry clearance cases, there was a 36 per cent success rate without legal aid and a 65 per cent success rate with legal aid. Lastly, for family visits, there was a 44 per cent success rate without representation under legal aid and 53 per cent success with legal aid. The Minister in another place was not able to confirm whether the figures were correct. It may be that the Minister tonight cannot answer the question, either. If he cannot, I would be very grateful if he would write a letter with the answers to the questions, which will appear in Hansard, and send a copy both to me and to other noble Lords who spoke in the debate. Those figures seem to imply, and in fact go further than that to prove, that representation is of enormous benefit to appellants. This is hardly a surprising conclusion but it is of course a very important one in the arguments about legal aid that we will no doubt enjoy in a few weeks.
Lord McNally
My Lords, I am grateful for the contributions to this debate. They do not entirely surprise me. What the Government are trying to do is difficult, and it is always easier to spend taxpayers’ money. I understand what colleagues are saying, but I think that they are putting slightly too much burden on their fears and on warnings. We are talking about asking people to pay 25 per cent of the charge for a process which—as has been acknowledged—will have already carried a fee of some £900. This is not a case of the state casually dropping on innocent citizens and prosecuting them. This is about people who are applying to enter our country, who are paying a fee for a process and where, at a second stage of that process—the tribunal level—we are suggesting a very modest fee.
I fully accept that we are going to have a much more fundamental debate when the Legal Aid, Sentencing and Punishment of Offenders Bill reaches us, and I will be very happy to take on that debate. We are suggesting that there are certain areas of legal aid, which have been covered, where my right honourable friend the Lord Chancellor and I believe that it is not the business of the taxpayer to finance the legal profession to participate in these activities. Indeed, at the tribunal level we believe that the emphasis should be put on a much less legalistic approach, but that may be a debate for another day.
I do not think that this is a horrendous charge. It will benefit the taxpayer because we expect the savings and receipts to benefit the budget by £16 million to £20 million a year. Again, this must be seen in the context of dealing with almost 200,000 appeals. Whether the charges will have an impact on a falling-off of appeals will have to be seen, but I suspect that it will; it certainly may have a small deterrent effect on non-meritorious appeals. But if one looks at how my right honourable friend the Lord Chancellor has gone out of his way to create as broad as possible a range of exemptions and inclusions—the noble Lord, Lord Bach, was good enough to acknowledge that—I do not think that this is the harsh and unfeeling policy that has been suggested.
The noble Lord, Lord Avebury, asked whether we had consulted the UNHCR. Yes, we did, as part of the full consultation. Perhaps not surprisingly the commission did express concerns about the charging of refugees and others, but there was no suggestion that in so doing we were breaking any of our international obligations. I am sure that we will have a debate on other matters because we are looking to reduce the amount of money that the taxpayer contributes to a range of legal activities, and in this case we are asking those who apply to enter our country—it has been conceded that they will have already paid a considerable fee up front—if they have to appeal against a decision, to pay a modest fee in response. I do not think that that is the kind of horrible policy suggested by my noble friend Lord Thomas of Gresford. It is one of those necessary activities we are undertaking partly to reset the system that we inherited and partly to ask those who make use of the system to make a modest contribution.
Future changes will be affected in part by the decisions of the Bill before the House, and I have already explained how that will make a further impact on tribunal work. The noble Lord, Lord Bach, asked about the discrepancies in the success rate of appeals supported by legal aid versus those that are not. I understand that the figures are not published by the Ministry of Justice, but we will investigate them and write to the noble Lord. On our plans for future fee levels, the Government have committed themselves to regular reviews, the first of which will take place in 2012. I think that I have covered most of the questions that were raised by noble Lords, but if I have not, I will certainly write in clarification.
We are not looking at this as a draconian hurdle that makes it impossible for people to appeal; quite the contrary. How we have set up the structure and the exemptions we give show that our principal aim is to retain the concept of access to justice. People wishing to challenge a decision of the UK Border Agency will continue to have access to an independent tribunal which is part of a justice system that is respected throughout the world. However, the system costs money and the Government believe that taxpayers should not have to shoulder the entire burden. A proportion of the costs is already raised from visa fees, but we are reluctant to increase these further for fear of discouraging applications from essential workers, students and others, most of whom will never make use of the appeal system. In order to ensure that no one is denied access to justice, we are putting in place a system of exemptions and remissions, and setting the fees at very modest levels. We have also undertaken to keep the impact of introducing fees under review, and to consult on and bring forward revised exemptions and remissions proposals to replace the pegging of remissions to legal aid, should its availability be reduced.
Finally, in response to the representations made about consultation, the order provides that the tribunal may instruct UKBA to refund the fees of successful appellants, thus ensuring that they do not have to pay to correct the errors of the agency. That in itself will incentivise the agency to improve its initial decision-making—I take the point made by my noble friend Lord Avebury about that—and will reduce the rate of successful appeals to the tribunal. I note what has been said and that we will be returning with vigour to some of these issues when the LASPO Bill comes before the House. But, overall, I believe that this is a carefully measured proposal that will reduce government expenditure at a time when this is vital to our economic well-being, while maintaining access to an important means of challenging the decisions of the Executive in the immigration field. In that spirit, I commend this draft order to the House.