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Sunday, 29 May 2011

In UK, do new immigration appeal fees cover asylum?

Arms of the United Kingdom with Crown and GarterImage via Wikipedia
Source: Free Movement

The Ministry of Justice has confirmed that fees will be charged for lodging appeals in the immigration tribunal from October 2011. There is no summary and the important details are spread out all over the place, meaning the document requires careful and close reading to comprehend. Frankly, it is not well written or set out, and there is at least one odd contradiction.

As ever at your service, I’ve saved you the bother:
  • Fees to be set at £80 for paper hearings and £140 for oral hearings to begin with, but with increases likely, starting with the managed migration and settlement appeals
  • No fees to be charged in the Upper Tribunal, although this may be revisited in future
  • A discretionary power is to be given to Immigration Judges to award the cost of the appeal fee against UKBA:
The policy intention behind this is that costs would only be awarded, up to the level of the appeal fee, where the decision should clearly have been made in favour of the appellant in the first place on the information presented by the applicant at the time of the initial decision. We would not expect a cost award to be made in cases where an individual introduced new evidence at appeal or otherwise contributed to the need for an appeal by his/her actions.
  • Costs orders against UKBA cannot be appealed to the UT but the UT will be able to revisit a costs order if an appeal reaches the UT on another basis
  • Certain appellants will be exempt from paying the fees, including:
  • Those in receipt of s.95 and s.98 1999 Act support
  • Those in receipt of s.17 Children Act 1989 support from a local authority (but not unaccompanied children in receipt of s.20 support)
  • Those who qualify for legal aid (not just those who receive it, it would seem)
  • Decisions with regard to deportation, removal, revoking a person’s leave to remain, or deprivation of citizenship or right to abodE
  • Humanitarian protection cases (but not asylum cases, very strangely – see further below)
  • Detained Fast Track cases
  • No refunds for out of time, invalid or withdrawn appeals
  • Although fees will be payable in humanitarian protection and asylum cases unless one of the other exemptions applies, where the person does not do so the appeal will continue anyway. The statement at para 42 that fees will be be payable in HP cases contradicts the statement in para 32 that fees will not be payable in such cases.
  • Where an appellant asks for a paper hearing but a judge directs that an oral hearing is necessary, there will be no additional charge for the oral hearing (para 50). Conversely, where an oral hearing has been requested and paid for but a judge decides the case can be disposed of in a paper hearing the appellant can apply for a refund (para 52).
  • If legal aid is withdrawn for immigration cases then the exemptions policy will be re-examined
  • It will no longer be possible to lodge appeals at entry clearance posts, they will have to be lodged with the tribunal directly (para 111)
  • Fees will have to be paid by dependents, including children, even where the appeals are linked
  • It will be possible for one person to pay for another person’s appeal fees, the fee will not need to be paid by the appellant personally
  • The only means of making the fee payment will be by debit/credit card, bank or wire transfer and by on-line payment
It remains to be seen whether the fee must be paid before the appeal is considered lodged, which could cause appeals to be out of time where there is a problem with payment, or whether an appeal will be struck out at some later stage if it transpires that the fee has not been paid. The courts certainly require fees to be paid up front, so I imagine it will be that way around – but the courts have public facing offices where the payments can be made in person, unlike the tribunal.

This is a major change and will take some digesting. As with UKBA application fees, it would not be surprising if appeals fees increased very substantially once they have been introduced in principle. I would guess that fees awards against UKBA are most likely in entry clearance and some asylum cases, which can be shockingly awful decisions. UKBA will no doubt just increase application fees commensurately, but it does seem likely that certain entry clearance posts will have to start setting aside substantial sums for repayment of appeal fees.
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