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Leading immigration law chambers say they will not accept instructions to prepare appeal skeleton arguments under new Immigration Tribunal fixed fee

Summary:

Fee changes made by Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 face widespread criticism

Date of Publication:
21 May 2020

Leading immigration law chambers say they will not accept instructions to prepare appeal skeleton arguments under new Immigration Tribunal fixed fee

21 May 2020
EIN

In a statement released today, twenty leading immigration law chambers have said that, failing exceptional circumstances, they will not accept instructions to prepare an appeal skeleton argument (ASA) under new legal aid fees introduced by the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020.

The new regulations, which come into force on 8 June, introduce a fixed fee for online appeals in the First-tier Tribunal (Immigration and Asylum Chamber). The Law Society notes it is an interim fee until June 2021, during which time the Ministry of Justice will gather views and data on whether the fee provides an appropriate level of remuneration.

Responding to the changes, immigration teams from twenty leading chambers said today:

"Other than in exceptional circumstances, each member of the immigration team of the chambers listed below will not accept instructions under the 'Reform Procedure' to prepare an 'Appeal Skeleton Argument', unless specific provision is made for that work to be adequately remunerated."

It was signed by the following chambers:

• 1 MCB Chambers Immigration Team
• 4 King's Bench Walk Immigration Team
• 10 King's Bench Walk Immigration Team
• 36 Public and Human Rights, The 36 Group
• Broadway House Immigration Team
• Doughty Street Chambers Immigration Team
• Garden Court Chambers Immigration Team
• Garden Court North Chambers Immigration Team
• Goldsmith Chambers Immigration Team
• Hirst Chambers
• Justitia Chambers
• KBW Chambers Leeds
• Kenworthy's Chambers
• Lamb Building Immigration Practice Group
• Landmark Chambers Immigration Group
• Matrix Chambers Immigration Team
• No. 5 Immigration Group
• No. 8 Immigration Team
• One Pump Court Immigration Team
• Trinity Chambers

One Pump Court has more on the statement here.

One Pump Court explains: "Under the new Regulations, a solicitors’ firm will now be paid £627 for an asylum appeal and £527 for an immigration appeal, whether or not there is a hearing. This is £400 more for an asylum appeal than was previously paid if there was no hearing. However, the Ministry of Justice accepts that the new system requires on average 8 hours of extra work for the solicitor at an early stage. It remains the case that where the final hearing does not take place, there is no provision for payment of the barrister for preparing the ASA. Preparing the ASA involves full preparation of the appeal and will involve many hours work. It is perverse that the more work the barrister puts into the ASA, and therefore the more likely the appeal will be successful without a hearing, the more likely it will result in the barrister not being paid at all. This creates a conflict of interest between the barrister and the lay client which is unacceptable."

The new fixed fee has faced strong and widespread criticism for being inadequate.

On Monday, Amanda Pinto QC, Chair of the Bar, said:

"Whilst we recognise that the Legal Aid Agency is working hard to address hardship in the legal profession for those doing publicly funded work, regrettably, for so many barristers working in the area of immigration, the announced plans will be insufficient. Many proposals that would make a real difference to the livelihoods of immigration practitioners have not been adopted, even, for example, hourly rates that mean counsel is paid fairly for work done. We are especially concerned by the lack of meaningful consultation with representative bodies on this new structure. The new fee structure will result in immigration practitioners continuing to be underpaid for their work. These measures ought not to be implemented. The LAA must properly hear and consider the views of those immigration practitioners actually doing the work. So far this obvious step has not been taken.

"Ongoing liaison between practitioners and the LAA which allows those affected by these changes to give their input on the operation of this system is crucial. The system cannot afford to wait a year until the sunset clause kicks in, only to find the financial damage to barristers' practices is irreparable and a cohort of experts has left the profession to the detriment of the public they serve. At the very least, the LAA must commit to regular reviews to understand the impact on the profession and whether it is able to withstand the changes, particularly in light of the additional challenges that Covid-19 presents to justice and those working for it."

The Immigration Law Practitioners' Association (ILPA) said in a detailed statement on Monday:

"ILPA is concerned that, in real terms, the new immigration and asylum legal aid fixed fee amounts to a reduction at a time when legal aid practitioners are least able to afford it. This should be seen in the context of a system that has faced very severe cuts over the last decade, the provision of legal aid is now severely limited and Law Centres face financial crises."

It added: "ILPA's position has been that hourly rates are the best option, and our position remains that this is the best way forward, however in the absence of that we had said that there should be a new bolt on fee for the appellant's skeleton argument, as there currently is for the appeal hearing. The reason this was our position was specifically to avoid the problems that have now arisen."

Read the full ILPA statement here for further details.

The Law Society said yesterday that it has serious concerns that the new fee will not provide sufficient remuneration for production of an ASA.

The Law Society said in a statement:

"Although the new fee has been set on an interim basis, this will not prevent providers from facing immediate difficulties in funding their own preparation of the ASA or instructing counsel.

"The likely consequences are that providers may not be able to take on appeals or may be forced to seek to vary tribunal directions, which itself involves more work and expense."