On 21 April 2016 the UK Government published a consultation on their proposal to increase fees for appeals to the First-tier Tribunal (Immigration & Asylum Chamber) and the Upper Tribunal (Immigration & Asylum Chamber). For an application for an oral hearing, the fee is set to increase from £140 to £800. For an application for permission to appeal a determination of the First-tier Tribunal, a fee of £455 is proposed for an application to the First-tier Tribunal, and a fee of £350 is proposed for an application to the Upper Tribunal. If permission is granted, a fee of £510 will be charged for a hearing at the Upper Tribunal. There is currently no fee for an application for permission to appeal or a hearing at the Upper Tribunal. The total fees for a case which is appealed to the Upper Tribunal would be £1,765, assuming the First-tier Tribunal grants permission to appeal, and £2,115 where it is necessary to submit a second application for permission to appeal to the Upper Tribunal. This is a staggering increase which would render an immigration appeal significantly more expensive than an action in the Sheriff Court and broadly comparable to an action in the Court of Session.
In the Sheriff court the fee for lodging an initial writ in an Ordinary Cause action is £96, there is a further fee of £96 for lodging a Notice of Intention to Defend and a fee of £54 for fixing a proof (evidential hearing). An appeal to the Sheriff Principal is £113.Total court fees are therefore likely to be in the region of £359. In the Court of Session the fee for lodging a petition or writ is £214, there is a further fee of £214 for lodging Answers/Defences and a fee of £96 per 30 minutes for a hearing. There is a fee of £214 for a reclaiming motion (appeal) and a fee of £239 per 30 minutes for a hearing before three judges in the Inner House. The total court fees (assuming a 2 hour hearing in both the Outer and Inner Houses) are therefore likely to be in the region of £1,982.
The increase in fees for the Immigration Tribunal is designed to ensure that the full cost of running the Tribunal service is borne by the users of the Tribunal. However, the increased fees are likely to discourage many migrants from appealing poor quality Home Office decisions, purely on the grounds of cost. If an appeal is successful, the Home Office is usually ordered to reimburse the Tribunal fee to the appellant. However, it is currently taking over 8 months for an appeal hearing to be listed at the First-tier Tribunal in Glasgow. Many people simply cannot afford to part with such a significant amount of money for such a long period of time, even if it is likely to be refunded after the appeal has been determined. Rather than facing an expensive and protracted appeals process, many people will simply allow unlawful and incompetent decisions to remain unchallenged. It will be a sad day for access to justice if these proposals become law. However, there is a glimmer of hope for immigration litigants in Scotland.
As part of the Smith Commission, convened after the Scottish Independence referendum in 2014, it was decided that “all powers over the management and operation of all reserved tribunals (which includes administrative, judicial and legislative powers) will be devolved to the Scottish Parliament” (see paragraph 63 of the Report of the Smith Commission, 27 November 2014).
This commitment has now been realised by paragraph 2A of Schedule 5 to the Scotland Act 1998, as inserted by section 39 of the Scotland Act 2016, which comes into force on 23 May 2016. This provision does not, in fact, devolve the management and operation of reserved tribunals, however provides a mechanism for doing so through Orders in Council (secondary legislation). Paragraph 264 of the Explanatory Notes accompanying the Bill explains:
“It is anticipated that the transfer of functions from the reserved tribunals to the specified tribunals in Scotland would take place through a two-stage process. First, an Order in Council would be made to specify the functions which could be transferred, along with any conditions or restrictions on the competence of the Scottish Parliament in legislating in relation to the transfer of those functions to the tribunals and the carrying out of those functions by the specified Scottish tribunal. This would give the Scottish Parliament competence to legislate to transfer the specified functions to the specified tribunal. The Scottish Parliament would then have to effect the transfer of the relevant functions to that Scottish tribunal”.
During the passage of the Scotland Act 2016 through Parliament, Lord Keen of Elie stated in the House of Lords that:
“The Order in Council will provide for the transfer of those functions, subject to conditions, that may be necessary to ensure the continuing effect of delivery of overarching national policy, and the underlying rights and duties that arise in areas of the law that continue to be reserved…. it is proposed that an Order in Council in respect of employment tribunals will allow for consideration by the Scottish Government of the matter of fees in respect of those tribunals. That is not to say that in every instance where there is a transfer by means of Order in Council the matter of fees will not be addressed, but in the case of employment tribunals and employment appeal tribunals, I can say to your Lordships that the matter of fees will be for the Scottish Government and will not be reserved in any respect.” (Hansard, HL Debate 19 January 2016, volume 768, column 680-681)
In January 2016, a Draft Order in Council was published by the Scottish Government for the transfer of specified functions of the Employment Tribunal. Paragraph 25 of the Scottish Government’s Consultation accompanying the Draft Order in Council states that: “The Scottish Government is committed to abolishing fees in the Employment Tribunal in order to ensure that all employees have a fair opportunity to have their cases heard”. To date no Draft Order in Council has been published in relation to the Immigration Tribunal.
It therefore remains to be seen whether the power to vary fees for applications to the Immigration Tribunal will be devolved. It is entirely possible that the UK Government will conclude that uniformity across the UK is necessary “to ensure the continuing effect of delivery of overarching national policy”. The Government made a specific commitment to devolve the matter of fees in the Employment Tribunal during the passage of the Scotland Act 2016. No such commitment has been made in relation to the Immigration Tribunal.
However, any Order in Council under paragraph 2A must be must be approved by both Houses of the UK Parliament and the Scottish Parliament before it becomes law (see Schedule 7 of the Scotland Act 1998). It is hoped that, given the Scottish Government’s position on fees in the Employment Tribunal, the Scottish Parliament will insist on devolution of the power to vary fees for applications to the Immigration Tribunal during the passage of any Order in Council relating to the transfer of administration and management of that Tribunal. This would allow the Scottish Parliament to reduce, or abolish, the staggering fees the UK Government is proposing to introduce. Therefore, the regrettable effects of the UK Government’s proposals to dramatically increase the fees payable when appealing to the Immigration Tribunal may be short-lived in Scotland.