First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

Lord Newton of Braintree Excerpts

Wednesday 12th October 2011 Lords Chamber

[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.