Appeal Fees: A Necessary Measure or Unnecessarily Unfair?

December 14, 2011

This week, we reported that the United Kingdom’s Ministry of Justice are introducing appeal fee charges for some asylum and immigration appeals from 19 December 2011.  We are still awaiting full guidance from the Ministry concerning the new charges, including any exemptions, which will not be made available until 19 December.  It is rather inconvenient that the Ministry has not seen fit to release this guidance before the rule change comes into force, since this would give those expecting a decision notice dated the 19 December or later, a chance to anticipate any potential fees should the case not be resolved in their favour.

UKBA have never previously charged fees for appeals, and it is clear that this change comes in light of the UK Government’s austerity measures, aimed at reducing the nation’s deficit.  Plans to introduce fees for employment tribunals have also been unveiled this week, which are designed “to relieve pressure on the tax payer by ensuring that those who use the service pay towards it.”  We certainly understand the need to eradicate any misuse of the appeals system, and appreciate that free appeals cost taxpayers millions of pounds each year.

However in terms of asylum and immigration appeals, we feel that frequently these types of cases are refused at first instance on what may be a ‘technical’ error or failure to comply with confusing immigration requirements, although the applicant may in fact meet the overall criteria for the visa he or she is seeking .  In these circumstances, people often lodge an appeal when they are at their most vulnerable and desperate and usually with little or no financial means.  There may indeed be strong grounds to appeal against a decision and therefore charging a fee could prevent a valid appeal being heard simply due to the applicant’s lack of funds.

We also observe that the Ministry of Justice has not indicated how they intend to handle situations where there an invalid appeal payment is made due to a credit card or bank error.  Could this lead to an invalid appeal and the loss of appeal rights for those who want to preserve them?

Whilst the introduction of appeal fees is being promoted as an attempt to make things fairer for the tax payer, it is surely having the opposite effect on those for whom the right to appeal depends upon it being a free service.  Furthermore, we have had no assurances that with the imposition of fees, the service delivered by UKBA and the courts system will be improved or enhanced in any way.

It is also important to note that from 19 December people will need to lodge their appeals at the tribunal in the UK.  Appeals will no longer be accepted overseas visa application centres.  However, the option of faxing appeal forms directly to the relevant Embassy has previously been a useful tool for speed and for practical reasons. Often the Entry Clearance Manager will review the faxed information.  Now that everything needs to be sent to the Tribunal (who are already inundated with paperwork) there will certainly be a lapse between those papers reaching the Embassy abroad to be reviewed by the Entry Clearance Manager.  Delays will only serve to make the situation more fraught for those who are anxiously awaiting a decision as to whether they can remain in the UK.

We await the full guidance from the Ministry of Justice, with not a little interest, and hope that it will make provision for those who cannot afford this important service.  We hope that they will not be “left out in the cold.”