How much justice costs these days?
Immigration appeals to the First Tier tribunal will now cost £800 per appellant for an oral hearing or £490 for a paper hearing (as compared to the £140 and £80 fees introduced in December 2011). A family of four would have to pay a hefty amount of £3200 to bring their case to an Immigration tribunal with a vague hope of recovering the fee of the appeal succeeds. Fees amendment order can be seen here.
There are plans to make applications for permission to appeal to the Upper Tribunal as well as hearings in the Upper Tribunal also subject to fees, but this is still at the stage of preparation. Once the plans materialise, appeal to the Upper Tribunal along with the standard applications for permission will cost £1350 per appellant. More details can be found in our immigration news blog of April 2016.
What is the difference between an oral hearing and a paper hearing?
An oral hearing is a hearing in a court room where the appellant can present his case to the immigration judge. Normally, there will be the judge, a legal representative of the appellant, the appellant, his witnesses if necessary, and the Home Office presenting officer.
The representative, a solicitor or barrister acting for the appellant, makes legal submissions and explains the law to the judge. The judge can request clarifications of points of law or points of fact that are not quite clear from the papers. The Appellant and other witnesses are given a chance to speak. The Home Office presenting officer can also ask the Appellants questions and then put his case to the judge. The judge normally “reserves” the decision and sends the judgment to the parties in the post within a month of the hearing.
At a paper hearing the judge only reads the papers. There are no witness statements and no dialogue, only consideration of “objective” evidence, such as payslips, bank statements, employment contracts, and such like. The decision is made on the papers only.
In most immigration appeals human evidence is vital. And where it is the case, paper appeals are simply not adequate. Also, due to complexity of immigration law and the fact that not all immigration judges have background in immigration (there may be commercial lawyers working part time as immigration judges) paper hearings are a risky exercise.
Which immigration decisions are affected?
The increase in fees applies to appealable immigration decision dated from 10 October 2016.
There are only very few categories of immigration decisions that still bear the right of appeal. Most visa refusals simply cannot be appealed.
Those decisions which can still be appealed (although in certain circumstances only after the appellant has left the UK) concern EEA nationals and their family members in dispute over their rights in the UK; and decisions affecting those who argue that their expulsion would be an unlawful infringement of their private and family life (mostly families with children who have lived in the UK for a long period of time).
Is Brexit a factor in this turn of events?
Not surprisingly, both privileged categories are protected under UK’s international obligations – EU law and the European Convention on Human Rights.
There is no judicial control over the government officials dealing with other immigration matters and gradually it has become policy rather than law that determines immigration decisions.
Once international mechanisms protecting Human Rights and access to justice are lifted immigration appeals will end.
Is this a matter of concern beyond immigration?
It is a matter of concern for society as a whole. Immigration is only a telltale showing the general trend.
In societies governed by the rule of law access to courts ensures that administrative decisions are not made arbitrarily. The idea is that in situations where there is a political or other agenda, the law provides a firm and clear set of rules which have to be applied independently of any other considerations.
Immigration law is anything but clear. Immigration judges refer to the immigration rules as Byzantine, meaning that they are extremely complicated and mostly illogical.
Another important factor indicating erosion of the rule of law is precedence of politics over legal certainty. Where law is uncertain or simply cannot be enforced, political agenda dictates decision without much regard to the law.
The next thing that happens is that slogans substitute substance. The increase of immigration appeal fees is introduced under the slogan “justice for all”. This is despite a near unanimous protest from public organisations in Consultation response to the government’s initiative and a cry out that the proposed increase of fees would further limit access to justice for poorer people, marginalise minority groups and promote arbitrary and unfair decisions.
Advice of immigration lawyers
It is more important than ever that immigration decision is made right first time round. It is not enough to make the application in accordance with legal requirements. An application has to be made in line with the policies and expectations of the decision makers.
If you have any concerns, give us a call. We will do our best to help.