Posted on July 31st 2017
Last Wednesday the Supreme Court handed down a landmark judgment in UK constitutional law. In response to a legal challenge by the trade union Unison, the judges found that the level of fees charged to bring a case in the employment tribunals is unlawful. This is because it interferes unlawfully with the fundamental constitutional right for individuals to access the courts and tribunals. There is an excellent overview of the constitutional issues raised by this judgment at the UCL Constitutional Unit Blog (the Supreme Court’s own press summary also provides a good overview of the main points).
Here we focus on what this judgment might mean for the future of fees in the Immigration and Asylum Tribunals. You may remember that last year we helped successfully head off a 500% increase to fees. We notified the Lord Chancellor of our intention to bring a legal challenge against the dramatic increase in fees, after which she backed down, reversed the increase and refunded fees to those who had already paid. However, that was only ever a reprieve and not a pardon: the Government promised further fee reform for immigration appeals, part of their intention to recover the full costs of running the tribunals from those who use them.
This judgment does not entirely remove that threat, but the Supreme Court’s principled stand on the rule of law and access to justice in this case gives us hope that the Government will see sense. The judgment restricts the Government in how far it can go in future without getting the support of Parliament. We now look at the approach the Court took in this case, the rules it set out, and consider how they might apply to Immigration Tribunal fees.
The powers given to the Lord Chancellor to set fees in the employment tribunals come from the same law that gives the power for fees to be set in the immigration tribunals. While these two sets of tribunals have very different users and engage different issues, ultimately the legal bases of any challenge to an increase in fees will be similar.
The rules set out by the court
The Supreme Court found that in order for fees to be lawful they must be set at a ‘level that everyone can afford taking into account the availability of a full or partial remission’. The Court said that it was not lawful to expect households to sacrifice ‘ordinary and reasonable expenditure for substantial periods of time’ in order to save for a fee.
The judges found that a significant number of people who would have brought claims have found the current fees to be unaffordable. They reminded themselves that people don’t choose to be fired from jobs or to be discriminated against by an employer.
They also said that the fees could not be justified as a necessary intrusion on the right to access the tribunals. The Lord Chancellor had argued that the higher the fee, the more money would be recovered. The court failed to find that setting the fees so high could be justified in terms of increasing revenue as there was no evidence that this worked, nor was there any evidence that raising the fees had deterred weak or vexatious claims. Lord Reed patiently pointed out that ‘it is elementary economics, and plain common sense that the revenue derived from the supply of services is not maximised by maximising the price’.
Similar issues arise in immigration cases. People don’t choose to be denied leave to remain in the UK. In addition, raising access fees will not necessarily increase the income of the tribunals. Nor does the ability to afford a fee say anything about whether or not a case has merit. As the Court suggested in this case, it may even encourage vexatious claimants who do not understand the weakness of their case. JCWI made these very points in our consultation response to the last set of fee increases.
This is a robust test. As a result of this landmark ruling, the Government will have to work hard to justify radically higher immigration tribunal fees in future. However, if the Government can put together evidence to justify its claims that higher fees are necessary and proportionate, it may still happen.
Reliance on common law rights
The Supreme Court decided the case based on common law rights and ideas fundamental to the British, or even more accurately English and Welsh, legal constitution. They will therefore survive any future departure from the European Union and they will survive even in the event that we withdraw from the European Convention on Human Rights at any point in the future. This means that we can be reasonably confident that we can rely on the same principles to challenge any future unreasonable rise in fees in the immigration tribunals.
The main English law principle used by the judges is the constitutional right of access to justice.
The rule of law & public benefits of accessible courts and tribunals
Lord Reed, giving the unanimous judgment of the Court, reiterated in stirring language the fundamental principle of the rule of law, placing it at the heart of our democracy. The courts exist to ensure that the laws made by Parliament (which is chosen by the people) are applied and enforced. In order for that to work people must have ‘unimpeded access to them’. Without such access the law is worthless, rights cannot be enforced, and the work done by our elected representatives in Parliament becomes a ‘meaningless charade’.
This wasn’t just a rhetorical flourish. It wasn’t even just a stern reminder to successive ministers who tend to forget that the rule of law should apply to them as well. It was a point fundamental to undermining the dubious approach of the Lord Chancellor in setting tribunal fees across the board, and which arose in the last attempt to raise fees in the immigration tribunals.
The Lord Chancellor and the Government have suggested time and time again that tribunals and court should in principle be funded solely by those who use them. They think it wrong that the taxpayer provides what they call a ‘subsidy’ to users of tribunal services which benefit only those who are using them. That is their main justification for increasing fees with the aim of having a fully ‘self-funded’ tribunals system.
While the Court recognised there was nothing wrong with expecting tribunal users to pay something towards the cost of the system, it made it very clear that access to the tribunals and courts benefits everyone. Not only does it preserve the rule of law, but cases that are brought and decided can help clarify ambiguous rules and establish new principles that others can rely on in future. In a rather prickly paragraph, Lord Reed noted that the Lord Chancellor, who was arguing that only litigants in individual cases benefited from the courts system, was citing over 60 cases as precedent to support his own self-refuting argument.
Any future proposal by the Government to raise Immigration Tribunal fees must therefore recognise the broader benefits of a functioning and accessible tribunals system to the public as a whole in calculating how fees are to be charged.
Careful scrutiny of the evidence, statistics, and hypothetical scenarios
The Supreme Court was willing to take a holistic view of all the evidence about whether these fee increases were restricting access to the employment tribunals. Even though they had no individual case before them of a person who had themselves been unable to afford to bring a case, they considered the evidence of the drop in appeal numbers and success rates, surveys of employees, and hypothetical calculations of affordability.
This is really important for any future case about immigration tribunal fees. Individuals who are put off from appealing due to high fees will often be those without legal representation. As a result of being unable to bring an appeal, they will either leave the country or fall beneath the radar. The bulk of evidence that will exist to demonstrate the effects of future fees will therefore be statistical and based on a sensible approach to what is going to be affordable for ordinary people. This judgment gives us hope that in future the courts will follow the example of the Supreme Court by accepting such evidence.
Insufficiency of fee remissions
Importantly, the Court agreed that the fee remission and waiver scheme was insufficient to help people who cannot afford the fees. Importantly, the waiver scheme in the employment tribunals is better and more generous than that in the immigration tribunals. It will be even harder for the Government to raise fees in the immigration tribunals without substantial and much needed reform of the fee remissions and waiver process.
This case is a welcome sign that the highest court in the land takes the issue of access to justice seriously. The robustness with which the Court dealt with some of the weak and illogical arguments that we have been hearing from the Government in recent years was heartening. It will substantially restrict the Government’s ability to arbitrarily impose massive increases to immigration tribunal fees in future. However, that is not to say that the Government will not try to come up with a new system for charging tribunal users, while trying to address some of the Court’s concerns.