Draft First-Tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011
The Committee consisted of the following Members:
† Brake, Tom (Carshalton and Wallington) (LD)
† Brine, Mr Steve (Winchester) (Con)
† Crockart, Mike (Edinburgh West) (LD)
† Djanogly, Mr Jonathan (Parliamentary Under-Secretary of State for Justice)
† Field, Mr Mark (Cities of London and Westminster) (Con)
† Hopkins, Kris (Keighley) (Con)
† McCabe, Steve (Birmingham, Selly Oak) (Lab)
† Macleod, Mary (Brentford and Isleworth) (Con)
† Morris, James (Halesowen and Rowley Regis) (Con)
Robinson, Mr Geoffrey (Coventry North West) (Lab)
† Shannon, Jim (Strangford) (DUP)
† Sharma, Mr Virendra (Ealing, Southall) (Lab)
† Slaughter, Mr Andy (Hammersmith) (Lab)
† Smith, Angela (Penistone and Stocksbridge) (Lab)
† Sturdy, Julian (York Outer) (Con)
† Watson, Mr Tom (West Bromwich East) (Lab)
† Winnick, Mr David (Walsall North) (Lab)
† Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)
Lydia Menzies, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Wednesday 14 September 2011
[Philip Davies in the Chair]
Draft First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011
2.30 pm
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I beg to move,
That the Committee has considered the draft First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011.
The purpose of the order is to require a fee from those who use the immigration and asylum chamber of the first-tier tribunal when they give notice of an appeal. If Parliament agrees the order, minor amendments will also be required to the Asylum and Immigration Tribunal (Procedure) Rules 2005. Those changes will be made by a separate statutory instrument.
In 2010-11, the total cost of running the asylum and immigration appeals system was about £108 million. That cost was mostly met by the taxpayer through the Ministry of Justice vote and partly from fees charged to visa applicants by the UK Border Agency. The Government are committed to providing a fair and efficient system for those who wish to challenge the decisions of the UKBA and to have that challenge dealt with by an independent judicial tribunal. However, we also believe firmly that those who use the tribunal should contribute to its cost. After all, it is the appellant who stands to benefit most from a successful appeal. It is even harder to justify why the taxpayer should pick up almost the entire bill for unsuccessful appeals—appeals that fail in the attempt to challenge a decision of the UKBA.
We are not alone in that view. The previous Government consulted on introducing fees for immigration appeals, but no further action was taken. Charging for appeals was also one of the ideas submitted in response to the present Government’s spending challenge in 2010, and one of those singled out for further consideration by my right hon. Friend the Prime Minister in August 2010.
I have consulted widely about the introduction of fees into the immigration and asylum chamber. Relatively few stakeholders responded to the consultation, but I have considered their comments and made changes to my initial proposals, which I shall explain. However, I shall start by explaining which types of appeal will generally, subject to any exemption under the order, attract a fee. They are: family visit visa appeals from people who have been refused temporary entry to the UK for a family visit; managed migration appeals from people who are already in the UK and are seeking either to stay here permanently or to stay longer than they are currently allowed; entry clearance officer appeals from people who are not in the UK, but who want to come to live here permanently or who want to come here temporarily other than to visit family, and whose visa application has been refused because they did not have enough points; and asylum appeals from people who have been refused asylum.
There are certain appeals for which we do not propose to charge a fee, including cases in which action is initiated by the state, such as deportation, deprivation of citizenship or revocation of indefinite leave to remain, or in which the appellant is in the detained fast-track process.
The fees will be £80 if the appeal is decided on consideration of the papers alone and £140 if there is an oral hearing to decide the appeal. Although the fees are slightly higher than those we initially proposed, they will still recover only about 25% of the cost of running the system.
Most importantly, the system we propose will ensure that those who cannot afford to pay the fees can still bring an appeal and obtain justice. The order provides for a range of remissions and exemptions—perhaps most importantly, for anyone in receipt of legal aid or asylum support. There is also a power to waive fees in exceptional circumstances. In respect of asylum appeals, I should also say that we accept that many—perhaps most—asylum appellants will benefit from exemptions under the order, and in any event the intention is that asylum appeals will not be held up or prevented if someone cannot pay.
I have listened to and considered the views expressed by those who responded to the consultation, and the order before the Committee reflects a number of improvements to our original proposals. The most important of those is the discretionary power for the tribunal to award costs to successful appellants against the UKBA up to the amount of any fee paid. For instance, if a clear mistake has been made by the UKBA, the tribunal will be able to award costs to the appellant, so a successful appellant will not have to meet the cost of putting right a mistake that is not of their making. It is hoped that that will encourage the UKBA to improve its initial decision making in order to minimise costs awards against it.
The Government are committed to ensuring that the tribunal remains accessible and continues to provide a service that is fit for its users, whether they are already in the UK or want to enter. The measure seeks to provide for the users of the tribunal to make a contribution towards the provision of that service and to balance better the cost of providing access to justice between the user and the taxpayer, without restricting that access. I commend the order to the Committee and hope that hon. Members will agree with the measures I have proposed.
2.36 pm
Mr Andy Slaughter (Hammersmith) (Lab): It is a pleasure to see you here this afternoon, Mr Davies. It is also a pleasure to see the Minister, whom we meet every day at the moment. I think that people have to invent statutory instruments so that we do not miss each other.
As I understand it, the objectives of the order are first to raise money and secondly to discourage unmeritorious appeals. That being the case, we are not minded to oppose it. However, the matter the Minister has set out is fairly complicated, so there are quite a lot of issues on which I would like clarification today. Even if we get that clarification, the provision should continue to be reviewed, certainly in the first year of its operation.
Although there is no objection in principle to the provision, questions arise as to whether the objectives will be achieved and whether there will be unintended consequences, the most damaging of which could be to discourage meritorious appeals. I hope that is not the Government’s intention and that they will be alive to that possibility. I accept the way in which the Minister has introduced the order, including the amendments that have been made following the consultation, which has generally been helpful. He says that the order is designed to impose fees on certain groups of appellants, principally some asylum cases—that issue probably raises the most concern—and those involving family visits, managed migration, entry clearance officers and European application. There are some logical exemptions, involving serious and immediate factors such as deportation, which is initiated by the state. Such cases should be exempted. We also welcome the fact that there will not be additional fees for the upper-tier tribunal, which would seem oppressive.
The explanatory memorandum notes that the order will be the first instance of fees being imposed in cases involving an action by the state against an individual. It is a significant step, so I hope the Government will keep it under review. It may well be the beginning of a process, and we may see more such steps. If so, we will judge each one on its merits. It is correct to say that fees are charged for many court proceedings, with remissions and exemptions, but the order is a new departure for tribunals, so we should not be under any illusion about its significance. The exemptions must be right in relation to under-18s, children in need, asylum support funding recipients and people in detention. I will come on to those on legal aid in a moment.
The Minister says that if someone makes a successful appeal, their fee should be returned to them, which is clearly logical. However, the explanatory memorandum does not quite say that; it says there should be a discretion. I fail to see why this should not be done automatically; at the least, there should be a clearly stated presumption that it will happen. I say that because the Government’s figures show that about a third of appeals are successful, which is quite a high figure in any event and does not show sound decision making.
I hope that the Minister can clarify an answer that he gave to a parliamentary question I tabled earlier in the year, because the figures I have are different. The figures from 2009-10 show that there was a 52% success rate for managed migration without publicly funded assistance, and a 60% success rate where legal aid was available. For asylum the figures were 25% and 37% respectively; for entry clearance they were 36% and 65%, and for family visits they were 44% and 53%. That shows the substantial advantage of having representation, yet in many cases legal aid is being withdrawn. As the Minister knows, that is not an issue for today; it is for the Bill Committee of which we are both members. However, I am strongly concerned.
Mr David Winnick (Walsall North) (Lab): Until recently, sponsors were able, on behalf of their relatives, to use the services of the Immigration Advisory Service, which came into existence in 1970. That publicly funded organisation has gone into administration. To have a valid and well-argued case, people who are putting their
case to the tribunal, or their sponsors, will presumably instruct solicitors, so the Minister’s proposals will involve a high additional cost.Mr Slaughter: My hon. Friend is right. Let me repeat the figure on entry clearance: a 36% success rate for appeals not recorded as publicly funded, compared with 65% for those involving representation, so the difference is almost double. We see that pattern across all the areas from which legal aid is being withdrawn. That is one concern, although it is outwith today’s statutory instrument.
Another concern is that one of the main criteria for a remission of fees is the availability of legal aid. How does the Minister square that with the withdrawal of legal aid from many areas? Will the Government consider continuing with the purpose of that remission for people on low incomes? It is said that there will be a remission of fees for people in receipt of legal aid, which will apply to some asylum cases, for example, but not to other types of immigration cases. What about a benefits requirement—in other words, for those on low incomes or on specified benefits who, in the ordinary way, would generally be granted remissions? That is our principal concern.
We are generally talking about people who are on low incomes or, sometimes, are in extremis. Either they will not be able to make an application, because they cannot afford it without a remission of fees, or they will be discouraged from doing so, because £80 and £140 are significant sums for people who do not have much money. Will the Minister clarify why the remissions are so tightly drawn?
Why is a simple judicial discretion being given? It would be useful if the Minister stated whether the Government intend that in all cases, unless there are exceptional circumstances—for example, relating to the conduct of the appellant—successful claimants will get their fee back. If I am right in saying that a high proportion of appeals are successful, that will substantially dent the Government’s income; but so be it. If the Government are true to what the Minister has said today, they should not cavil at that. They should simply say that if people successfully appeal against what is effectively a mistake on the part of the UKBA, there should be no question but that the fee is returned.
In the past 18 months in particular, my surgery has been full of people challenging on their own behalf or that of their family decisions made by the UKBA, and I am sure other Committee members have had the same experience. Whether because of cuts at the UKBA or because of Government policy, which is heavily directed at controlling migration and the movement of people at all costs, many bad decisions are being made. The figures I cited earlier speak for themselves. If they are right, the last thing we should do is to cut off rights of appeal that reveal the extent of bad decision making.
The Minister cannot possibly want such bad decision making to stand. Indeed—he may have indicated this—we should be giving the UKBA incentives to make better decisions. Perhaps the money that it must pay towards the tribunal service should be in direct proportion to the efficiency of its work; I am sure that a formula for that could be worked out. We discussed the matter in the Bill Committee at the end of last week, and both
sides supported the idea—which is rare—that, where costs are thrown away because of poor quality decision making or administration, state agencies should be made to bear that cost, rather than those whose mistake it is not.When a case is refused at first instance or refused by the UKBA, there is often an option either to make a fresh application or to appeal. Sometimes, a fee is attached to a fresh application, but not to an appeal. Is the perverse incentive to appeal, rather than to make a fresh application, something the Government have in mind? I do not have a problem if that is the Government’s wish, save that the other reason why people tend to use the appeal process over a fresh application is that the application process is poor and slow. If the Minister would rather see defective applications for family visit visas, for example, corrected by a fresh application, the Government need to ensure that those applications are dealt with properly and efficiently. Frankly, that is not being done well at the moment.
Depending on what the Minister says in his response, we will not oppose the measure today, but we would be interested to see how much money the Government think they are going to raise. I think it is a quarter of the sum involved, so, given that the net cost to the Ministry of Justice at the moment is some £100 million, does that mean they are looking to raise about £25 million? If it is right that the measure discourages unmeritorious applications, presumably that figure will fall, and in a year’s time we should see the figure for successful appeals actually increasing, because unmeritorious appeals will have been withdrawn. Therefore, that sum of money may actually be lower than the Minister says. He must have some idea of what the figure is. Moreover, will he clarify the situation regarding remissions? How is he going to ensure, in the round, that people are not prevented from applying simply because of their impecuniousness?
Finally, will the Minister also explain what types of asylum cases will be exempt? This is an issue that gives us some pause. Some 78% of asylum cases will be exempted from the fee, but 22% will not. What is the logic of that? Would it not be simpler to exempt all asylum cases? What is the reason for not exempting them?
2.49 pm
Kris Hopkins (Keighley) (Con): I want to make a few comments about the process. First, I welcome it, and, secondly, I want to acknowledge the number of people who come to my constituency offices, rather than other agencies, to access information. Immigration and public confidence is a huge issue, and being able to demonstrate that people who come into the country seeking to use a service will make some form of contribution is important.
Mr Winnick: Presumably the hon. Gentleman is referring to the organisation that I mentioned to my hon. Friend the Member for Hammersmith, the Immigration Advisory Service. People are coming to his office, but what his office presumably cannot do any more than mine is represent the sponsor on behalf of the appellant. That is not possible, so presumably the hon. Gentleman accepts that it is more than likely, if it is to be an oral
appeal and stand any chance of success, that solicitors will be involved or they will instruct barristers accordingly, and the sums will also grow accordingly.Kris Hopkins: I recognise that, but, as I said, it is about giving confidence to the public. There is a huge cost to the state, which needs to be addressed. It has been suggested that the order addresses only 25% of that cost, but it is important to send out that message.
The bit that really concerns me is how my office will use the information. At the moment, I have a hotline. I have someone who is competent and capable of addressing such matters, but they are now dealing with immigration issues virtually full-time. It is a significant burden on the state that I have to have somebody on the end of a hotline to address the matter.
Although the statutory instrument comes to only four pages of content, the explanation is 27 pages long. There will be a huge burden on the time of my staff and the public who attempt to understand the consequences of the order. Generating and interpreting law has a huge cost, which concerns me. I agree that we need to create a levy to give the public some confidence, but 27 pages of explanation for four pages of statutory instrument means that there will again be a huge burden on my office and other agencies attempting to understand the order.
2.51 pm
Jim Shannon (Strangford) (DUP): The hon. Gentleman referred to his office being inundated with extra immigration work. The same applies to me. I was dealing with this before I became an MP, but over the past 12 months the immigration issues coming into my office are much more difficult and detailed. I am fortunate to have a contact versed in immigration, so I refer most of the matters to him. He happens to be a British citizen of Chinese extraction, and he knows it all well. It is good to have someone to call upon, but not everybody has that.
I have two questions on which I seek clarification. I understand the Government’s reasons for tabling the order, which are well outlined. Some two thirds of appeal cases are dismissed each year, which is perhaps a driver for the changes. I want to understand in my own mind what the order means. It says here that the fee levels are to be set at no more than 25% of the average cost of an appeal tribunal. Is there any indication of what that 25% will mean to those people who appeal? I am conscious that we are talking about a percentage, but I do not know what it costs to appeal. It is important for us to have an idea of what the fees will be.
The Minister outlined some of the exemptions. I am conscious that we live in a troubled world in which a great many more people seek asylum in the United Kingdom than ever happened in the past. Many cases are based on fear of being attacked, injured or killed. Will such cases be exempted? I tried to follow the exemptions to which the Minister referred, and I apologise for not catching all the detail.
2.54 pm
Tom Brake (Carshalton and Wallington) (LD): As a Government we have quite rightly been reluctant to adopt a wide range of targets on a wide range of issues. Given that we are cutting back on legal aid for the
financial reasons that we all understand, the Government should have some sort of measure to which different Departments, and in this case the UK Border Agency, should respond, thereby driving up the quality of first-time decision making. As we restrict legal aid, people have to rely on private legal advice, and the need to do that is clearly reduced if decisions are taken correctly the first time. We need measures in place to drive that process.2.55 pm
Mr Djanogly: I thank hon. Members for a stimulating but short debate, which has been helpful for exposing and expressing the concerns of various hon. Members. I shall go into the individual points made, but I would first like to confirm to the hon. Member for Hammersmith that, yes, we will keep the policy under review and look at the impact on applicants on a continuing basis.
Various hon. Members mentioned various statistics, so let me give a little statistical background. Our records show that there were 42,400 appeals outstanding in the first-tier tribunal at 31 March 2011. That is 15,600 fewer than a year earlier. In the last financial year, the tribunal received some 136,800 appeals and determined 154,700. The average length of time from receipt by the tribunal to final disposal is just under 20 weeks. To answer the question from the hon. Member for Hammersmith, overall, about 41% of appeals on asylum and immigration matters were successful in the financial year 2010-11, but success varies significantly by case type. Appeals against refusal to issue a family visit visa were allowed about 38% of the time, while the rate for asylum appeals was lower at 28%.
On whether the change signals that the Government will charge fees in all tribunals, the answer is no. We may need to continue funding some tribunals from taxation due to their subject matter or the appellant’s lack of means to contribute. However, fees are nothing new in tribunals or the civil courts, and we will certainly consider where there is scope for further shifting the financial burden of providing the service from the general taxpayer to the service user.
The hon. Member for Hammersmith asked why we do not automatically refund the costs of successful appeals. We are giving the tribunal power to award costs up to the value of the fee paid against UKBA, but that will not be automatic because in some cases there would have been no need for an appeal. The applicant could produce evidence on appeal that could have been produced at the time of the original decision. Yes, in the end he may win, but the fees are for court and judge time. If that time has been wasted, it might be right in those circumstances that the fee is not returned.
Mr Slaughter: I see the logic of that. However, to save everybody’s time, and three quarters of the cost to the tribunal, the logical thing would be to vary the application process, for example, if it were a question of a document not being submitted. In many cases, the applications are not straightforward, particularly if someone speaks English as a second language, which is very common. My experience is that whoever makes the assessment for UKBA will look for some excuse to refuse an application. They will reject it and the person will often be under time pressure. I am afraid that is deliberate in many cases—it is Government policy. If a document
was missing or it was something as straightforward as that, it would be much better for all concerned, including in terms of cost, if the person was asked to supply it. It seems wrong then to say that that person has to go through the appeals process to supply it, and because they had not supplied the document, they will be punished financially.Mr Djanogly: We propose a flexible system that will allow the judge to make a decision based on the facts presented to him. That decision could go any way and vary hugely, depending on the circumstances.
Mr Winnick: Perhaps the Minister would like to comment on my earlier interventions on the position of the Immigration Advisory Service. As I understand it, the funding came from his Department and the organisation is in administration. Do the Government intend to provide a replacement? If not, does the Minister accept that, for the case of the appellant or the sponsor to be well argued—it is important that cases are well argued where there is merit—solicitors or barristers will have to be involved, which will increase the cost?
Mr Djanogly: The hon. Gentleman makes a good point, which is relevant to large parts of the public sector. Early intervention and early good advice is important; my hon. Friend the Member for Keighley made the same basic point. Full guidance will be provided with the appeal form to individuals who want access to a tribunal, and a customer service helpline will also be available in the initial stages to answer any questions that the public have about how to pay the fee, with the exact intention of achieving that early intervention that the hon. Gentleman suggests.
Mr Winnick: I should declare an interest, because I argued the first or second case before an adjudicator, as immigration judges were called at the time, in the middle of July 1970. I had some sort of history in this matter until I returned to the House in 1979. Do the Government intend to have another such organisation?
Mr Djanogly: I am not sure whether that is for the Ministry of Justice to answer; it may be for another Department. I will write to the hon. Gentleman to clarify that point.
The hon. Member for Hammersmith asked who will not have to pay. Those who appeal against removal, deportation, deprivation of citizenship, or other action initiated by the state, and asylum applicants who are in the detained fast-track process will not be required to pay a fee. The hon. Gentleman also asked about legal aid, and individuals who are in receipt of legal aid, asylum support or local authority support under the Children Act 1989 will not have to pay. The Lord Chancellor will also have the power to exempt an appellant from paying a fee if he considers there to be exceptional circumstances.
The hon. Members for Hammersmith and for Strangford asked why asylum seekers would pay a fee, and whether they should be automatically excluded because of the UK’s international obligations. Most refused asylum seekers will not have to pay a fee to appeal under our exemptions and remissions policy. If they do not qualify
for an exemption, they will have to pay the fee. It is right that those who can afford to make a contribution to the hearing of their appeal should do so; the proverbial Russian oligarch springs to mind. The tribunal will not hold up the processing of asylum appeals, however, while we wait for a fee to be paid or qualification for exemption to be demonstrated. If a fee is not paid, the Lord Chancellor may defer its payment until a later date, and the asylum appeal would proceed to its conclusion. We are, therefore, in no danger of transgressing either the spirit or the letter of our international obligations on asylum, because no asylum appeal will be rejected on the ground of non-payment of a fee.Mr Slaughter: On the legal aid point, there is some irony in using legal aid eligibility as a test at a time when the Government are removing most immigration legal aid from scope. I am not talking about eligibility criteria; I am talking about scope. If the spirit of the proposal is to say that those who are on income levels that qualify for legal aid should have a remission of fees, surely that should go for those who are not. Legal aid is a much bigger issue, but let us leave that aside for today. Will the Minister look at the eligibility criteria to see that people who are currently entitled to legal aid for asylum matters, but will not be in future, will still be exempted on the ground that they may be in receipt of other benefits?
Mr Djanogly: As I have said, there are several grounds, and legal aid is one. The individual concerned may come into the net through another. The hon. Gentleman asked whether the Government should concentrate on improving the quality of UKBA’s decision making. Ministry of Justice and UKBA officials are working together to improve the end-to-end quality, speed and cost of the appeals system, and UKBA decision making is being looked at as part of that. It should not be assumed, however, that the majority of UKBA decisions are incorrect—actually, the contrary is true—or that all successful appeals are the result of poor decision making. In a number of cases, appeals succeed or are conceded because of the late addition of new evidence.
Several hon. Members asked what had been done to improve the quality of UKBA decision making. UKBA is committed to increasing its success at immigration and asylum appeals. As a key part of that, it is committed to embedding a “right first time, every time” approach to decision making to ensure that no unnecessary appeals go through the system, and that we can successfully defend the appeals that do. UKBA has rolled out a national approach to analysing and improving its success in asylum appeals. The introduction of entry clearance manager reviews after appeals are lodged has also increased the withdrawal of visa decisions over the past year where the grounds for appeal have satisfactorily addressed the reasons for refusal, thereby preventing unnecessary appeals.
However, the primary reason for immigration allowed appeals is further evidence that is submitted at appeal, which was not submitted to UKBA on first application. That is why the Government commenced section 19 of the UK Borders Act 2007, which restricts submission of further evidence at appeal in points-based system cases, in May. We have already seen positive results, and we expect the power significantly to improve UKBA’s success at appeal in the coming months.
Tom Brake: I thank the Minister for saying that UKBA is adopting a “right first time” approach. I do not want to give his officials more work, but I wonder whether they or he might be willing to write to the Committee to set out in a little more detail what that means, so that we can judge whether sufficient progress is being made.
Mr Djanogly: I am happy to write to my right hon. Friend and to copy in members of the Committee.
We anticipate that the system will cost some £250,000 per annum to run. We do not think that this is simply more costly bureaucracy; the introduction of fees is not expected to have any significant impact on the time that is taken to determine appeals, as long as appellants pay any fee that is due promptly. Our modelling shows that revenue generated by fees is expected to be between £10 million and £13 million. Including cost savings from the reduction in demand for appeals, the total benefit to the tribunal is forecast to amount to between £15.9 million and £19.9 million. Those figures have been calculated from a range of scenarios, taking into account several variables, and each assumes different levels of demand depending on the price of an appeal. I cannot rule out that the introduction of fees will result in revenue or benefit outside those ranges, but they are our most confident forecasts.
The right hon. Member for Carshalton and Wallington asked whether, given cuts in legal aid, we should impose targets for UKBA to improve decision making. That is not one for me as a Justice Minister, but I agree that UKBA needs to improve its decision making.
To sum up, people who wish to challenge a UKBA decision have access to an independent tribunal, which is part of a justice system that is respected throughout the world. However, appeals cost money, and the Government believe that it is unfair for taxpayers to shoulder most of that cost. It was good to see that recognised by my hon. Friend the Member for Keighley.
Jim Shannon: The Minister has not replied to one of my questions. Perhaps it is an oversight on my part, or on his. It related to the potential cost for the 25% that he mentioned; it would be useful to have an idea of the cost to the taxpayer for each applicant.
Mr Djanogly: I do not have those figures to hand, but I will write to the hon. Gentleman with them.
To share the burden, we propose to charge fees to cover about a quarter of the cost of the tribunal. We believe that that is reasonable and right. Those who can afford it will pay a fee dependent on the type of hearing that they have chosen. Because of the exemptions that we have put in place, no one should be denied access to the tribunal because they cannot pay. The fees and the safeguards that we have built in represent a fairer way to share the cost of the tribunal without undermining access to justice in any way. I commend the order to the Committee.
That the Committee has considered the draft First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011.