Immigration Appeals - Massive Fee Increases Coming

22 September 2016

In times gone by many or most visa applicants had the right of appeal to the immigration tribunal - the First-Tier Tribunal (Immigration and Asylum Chamber) as it is currently and formally known - if their application was unsuccessful, and there were no government fees to be paid for the appeal. The FTT is - like other tribunals - an independent entity which has no allegiance to government decision-makers, and the Immigration Judges who sit in the Tribunal are qualified lawyers, charged with the duty of making fair and impartial decisions.

It would be right to say that historically the system thus provided a reasonable level of justice for visa applicants should their application be refused.

But this relatively happy state of affairs has unravelled somewhat over the last few years. The Government has progressively abolished full appeal rights for visitor visa, working visa and study visa applicants. In some cases the right to appeal has been replaced with the right to "administrative review": a rather less rigorous process, carried out by UK Visas and Immigration officials, not by judges or lawyers.

And in 2011 the Ministry of Justice introduced fees for immigration appeals. The fee for a hearing conducted "on the papers" (ie with no live oral hearing) is £80 and the fee for a live oral hearing is £140, and applicants whose appeal is successful have their fee refunded. If the case is further appealed to the Upper Tribunal (the higher tier of the immigration tribunal system) there is no extra fee.

These fees do not reflect the real cost of appeal hearings. Judges and court staff have to be paid salaries, tribunal buildings need to be maintained, bureaucracy costs money, and the real cost is far higher. Bearing in mind that the Home Office has been strongly increasing visa fees and creating new additional fees for visa applicants over the last few years, on the basis that migrants have to fully "pay their way", it was predictable that appeal fees were going to go up at some point.

The Ministry of Justice has indeed decided to raise the fees, on an imminent basis, but on a scale that can fairly be described as massive. Fees for hearings conducted on the papers will be increased from £80 to £490 and for oral hearings from £140 to £800, and fees are now being introduced for the first time in cases before the Upper Tribunal. These fees have apparently been set to reflect the real cost of appeal hearings.

The Ministry of Justice argues that this measure is designed to protect the public purse and the interests of taxpayers. This sounds laudable as far as it goes, but of course there are also arguments about denial of justice. It hardly needs to be said that this measure is likely to discourage many applicants from appealing refusal decisions, however strong their case might be.

The Ministry of Justice might also like to point out that the immigration field is not being discriminated against. Similar sharp increases have also been recently imposed in the employment tribunal sector. It is part of a general trend of cutting costs in the legal system and making it more self-financing.

We have to live with things the way they are, and the best advice to visa applicants is - and as it always has been - to submit the best possible application, prepared in the clearest way. Immigration rules have in many areas become progressively more and more complex over the last few years, and it is important to achieve clarity in the way the application is presented. This will at least reduce as far as possible the risk of refusal and thus the necessity of challenging the decision.

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