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Concrete Walls and Bureaucratic Barriers to Access to Justice for Migrants

Written by Justine Stefanelli, UK Human Rights Blog, 06 October 2016

Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.

The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants.

The Government claims these changes are necessary to preserve access to justice and the continued functioning of the Tribunals, and feels that taxpayers should not bear this burden. However, this motive is questionable, especially in light of the recent joint statement by the Government and the judiciary outlining plans to invest over £970 million to transform our justice system and make it more accessible. These plans are aimed at ensuring that the justice system is straightforward and capable of use by every citizen. The Tribunals in particular are cited as "an essential component of the rule of law" because they empower citizens to hold the state to account. Together, the Joint Statement and the fee changes illustrate a problematic dichotomy.

On one hand, the Government seeks to ensure that our justice system is fit for purpose, and remains a model of access to justice for other nations. On the other, it plans to implement highly restrictive fee changes for one category of individuals—non-citizens—despite significant opposition. In The Rule of Law, Lord Bingham wrote that the "denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law". Indeed, the rule of law is not served where access to justice is barred by virtue of its cost. If the Government truly believes that tribunals are a fundamental part of the rule of law, then it should also believe in equal access to justice for all people. As underscored by the President of the Law Society, the proposed fee increases are "a huge setback for justice in the UK" that will deter people from appealing adverse decisions. This is especially worrying in view of evidence that appeal success rates in the First-tier Tribunal are 43% – 49%, depending on the type of appeal. These figures indicate that immigration and asylum decisions by the Home Office are frequently flawed. However, the fee increases mean that people will be less likely to challenge initial decisions, and that poor decisions will go unchecked and uncorrected.

Moreover, it is likely that the increase will result in unlawful discrimination and give the state even more power over people who are often vulnerable and afraid from the start. The decision to increase fees so drastically in the immigration and asylum tribunals arguably reflects a general anti-immigration sentiment here in the UK demonstrated recently in relation to the influx of refugees in Europe and the UK's continued resistance against accepting more refugees. The UK has a history of implementing restrictive policies in the field of migration in times of perceived crisis. For example, following publication of a White Paper in 1998 ostensibly aimed at protecting the rights of immigrants and asylum-seekers, Parliament passed seven laws introducing 80 new immigration offences, and began automatically detaining asylum-seekers upon their arrival in the UK. This was in the wake of the Government's perception that the state was being inundated by fraudulent asylum applications.

It is therefore difficult to accept the Government's proffered justification for these fee increases, especially when one considers that the non-citizens are often at a financial disadvantage in comparison to citizen-users of other tribunals. If the UK wishes to remain a world leader in terms of its justice system, it should seek to ensure that access to justice remains a viable option for all people, regardless of their origin or financial position.

About the author: Justine Stefanelli is research fellow at the Bingham Centre for the Rule of Law, working on European law issues with a focus on migration
This post by Justine Stefanelli first appeared on the UK Human Rights Blog by 1 Crown Office Row chambers and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN