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

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. Thirdly, there are huge problems with the asylum screening unit, to which attention has been drawn by the Immigration Law Practitioners’ Association and the Law Society. Telephone lines are permanently engaged, imposing delays which may jeopardise the credibility of the applicant through no fault of her own and extra costs are imposed on the lawyers which are not recoverable. The UKBA should not apply to pursue cases after it has lost at the First-tier Tribunal when its arguments are not sustainable in law. It should review all cases where an appeal has been lodged with this consideration in mind. Imposing fees on appellants adds to the inequality of arms in the system, where in all cases individuals are appealing against government decisions, as my noble friend has pointed out. Where the UKBA decides to revoke the decision that it has made before the appeal has been heard, presumably on the basis that it cannot justify the refusal, it would be manifestly unfair not to refund the fee that has been paid, and in any case the administrative costs in these cases must be even less than in the cases that are determined on paper alone. I am concerned by the statement in paragraph 8.4 of the Explanatory Memorandum—which has already been referred to—that, "““the Government decided to withdraw the proposal to charge a further fee for bringing an appeal to the UTIAC for the present””." I would like to know what change in circumstances might cause them to revive this proposal—which, as has been said, was unanimously opposed by all 27 respondents to the consultation—at some time in the future. As my noble friend said in his comments on the order, this decision not to impose fees for appeal to UTIAC was taken at this time. So obviously the Government have in mind some future change in the circumstances which would dispose them towards charging fees in the Upper Tribunal. I would like to know what those are. Appellants have already paid a large fee to make an application that has been refused—£900, for example, in the case of an application for indefinite leave to remain—and on top of that they are likely to have to pay for legal representation if the proposed changes in the legal aid system are implemented. As regards asylum seekers, I do not agree that the exemption from payment of these fees should be limited to those who are in receipt of asylum support. Many are not eligible for that support because they are staying with friends and therefore do not agree to be dispersed. Any asylum seeker who meets the financial and merits criteria for legal aid ought to be exempt, as should also victims of domestic violence, unaccompanied children and anyone who has a case under the ECHR, the refugee convention, any provision of EU law to which the UK is a party and the European Convention on Action against Trafficking in Human Beings. The impact analysis estimates that three-quarters of asylum applicants would be exempt already, as my noble friend has pointed out, under the government proposals, and of the remaining 25 per cent, another quarter have successful appeals and are awarded costs. The table in paragraph 4.30 of the analysis shows that in any of the four scenarios examined, the amount of money recovered less the cost of pursuing the asylum seeker for payment is not significant compared with the undermining of the spirit of our obligations under the refugee convention. I would like to ask my noble friend whether the Government have consulted the UNHCR about this aspect of the proposal, and, if so, what was their response. My noble friend pointed out that similar tribunals do not impose fees on appellants. Since the majority of immigration and asylum appellants are from minority ethnic groups, imposing fees for this part of the justice system only risks creating unlawful race discrimination. If, contrary to these arguments, fees are imposed, they should be paid by the UKBA if the appeal is successful. This would promote equality of arms and should discourage the UK Border Agency from making unwarrantable refusals of applications. This is not the first order that we have had on an immigration issue where the cost-benefit analysis—as my noble friend pointed out in detail—is based on pure guesswork. Two arbitrarily chosen scenarios as to the behavioural response to fee charging have been picked as the basis for the calculations: that a £100 fee would lead to a decrease in appeal volumes of 10 per cent and 5 per cent respectively. It is also assumed, without any reasoning, that 25 per cent of family visit visa appeals would switch to new applications costing £76, compared with £140 for an appeal determined at an oral hearing. It appears that no assumption has been made about the number of people who would have gone for an oral hearing but instead decide to accept a paper determination because it is cheaper. The chances of success on appeal are higher with an oral hearing, but no estimate is given of the number of appellants who will switch to a paper hearing and thereby lose an appeal that they would have won had they gone for an oral hearing. ““Justice”” is not a word that comes into the Explanatory Memorandum or the impact analysis; the objective is to save money, irrespective of whether the outcomes conform with the merit of the applications.