15 June 2022

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Government sets out new fee regime for online immigration and asylum appeals

Consultation says system encourages front-loading amid concerns that firms only do as much work as the fee covers, at risk to justice

The Ministry of Justice (MoJ) has set out reforms to legal aid payments in immigration and asylum work, including a new fixed-fee regime for online appeals at the First-tier Tribunal (FTT).

The Immigration Law Practitioners Association argued strongly against the use of fixed fees for immigration appeals in its response to the MoJ’s call for evidence on the issue at the end of last year.

In a consultation paper published this week, the MoJ proposed a fixed fee of £669 for asylum cases and £628 for non-asylum cases using the online system for appeals at the FTT and not going to a hearing. Where they do reach a hearing, the MoJ put forward a fixed fee of £1,009 for asylum cases and £855 for non-asylum cases.

There would be a new escape threshold for online appeals, set at twice the value of the relevant fixed fee. This is the point at which cases can be paid by hourly rates. For legal help, the three times multiplier would remain.

The MoJ said it intended to pay hourly rates for advice provided to people being prioritised for removal from the UK who receive the new priority removal notice (PRN), age assessment appeals work and work relating to the new rebuttal mechanism.

Meanwhile there would be a new bolt-on fixed fee of £75 for advice on referral into the national referral mechanism, the modern slavery identification system.

Along with its call for evidence, the MoJ said it conducted a survey in October 2021 of immigration legal aid practitioners who had completed appeals using the online system.

“All respondents highlighted that the key difference between the new online system and the old process, was the ‘front loading’ of much of the work on a case, with the online system requiring more work at the beginning of the process before an appeal can progress.”

The MoJ went on: “Many respondents set out their view that fixed fees encourage representatives to work within the fee, rather than do all that is required to prepare the case, and raised concerns about the financial viability of firms, the sustainability of the market and access to justice.

“When asked for additional views on the new process, many respondents set out their preference that hourly rates should be paid rather than fixed fees and raised concerns about the quality of the Home Office’s initial decision making in immigration and asylum cases.”

The MoJ said the results of its survey of 17 immigration firms “clearly show an increase in the amount of work required under the online system, particularly in the time taken to lodge an appeal”.

The total application and tribunal preparation time for asylum cases rose from 12.5 hours to 20.2 hours under the online system, and 9.3 to 16.5 hours for non-asylum cases.

The MoJ said that, to calculate its new fixed fees, it used current fixed fees as a baseline, an average of the hourly rates that it was currently paying, and the additional total case time providers reported through the survey.

The hourly rates for PRN and rebuttal mechanism work are proposed at £51.62 for preparation, attendance and advocacy in London, and £47.30 outside the capital For age assessments appeals, it would be £55.08 per hour in London, £51.53 outside.

Tom Pursglove MP, minister for justice and tackling illegal migration, said the proposals aimed to ensure legal aid lawyers were “adequately remunerated” for the work they did, ensuring continued access to this “important service”.

He added: “This is the latest step in our wider civil legal aid strategy to ensure a sustainable system of provision where people can get the right advice at the right time, leading to better outcomes for all.”