New immigration fixed fee opposed by the legal sector

On 8 June 2020, the UK government introduced revised immigration and asylum work fees. Known as a “stage 2c fee,” this scheme increases the fixed fee for appeals, and the amount of work a solicitor must complete before charging an hourly rate.

Many of those within the legal sector, including the Immigration Law Practitioners’ Association (ILPA) argue that these changes will have serious implications for those who work in the sector.

Lawyers argue that the increased fixed fee is no longer financially viable. They also outline that a serious consequence of these changes will be that vulnerable appellants will go unrepresented.

Rallying against the changes, the Labour Party has made a bid to annul the immigration fee reform. Meanwhile, one the country’s biggest legal aid firms, Duncan Lewis, has served the Lord Chancellor a letter before action, contesting the legality of the Amendment Regulations.

Fixed fee rises

The Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020, was laid in parliament on 18 May 2020. However, parliament is not required to approve a statutory instrument (SI) in order for it to transition into law. Consequently, it was enacted on 8 June.

The new stage 2c fee, which replaces the previous stage 2a and stage 2b fee, applies to  appeals made through HM Courts and Tribunal Service online process. It will be in place for one year, ending in June 2021.

In the UK, legal aid lawyers are only permitted to charge an hourly fee once they have worked three times the value of the fixed fee. Prior to the Amendment Regulations, this fixed fee was £227.

Under the new measures, the fixed fee for asylum appeals is £627, and for immigration appeals it is £527. On top of this, an appellant’s skeleton argument (the document outlining the “bare bones of a case before trial), must be prepared further in advance, and potentially for as little as £60.

Aware that this payment regime will result in significant cuts to solicitors in the legal aid sector, which is already at breaking point, the Labour Party is attempting to annul the immigration fee reform.

Seeking to defeat the Amendment Regulations that could debilitate the legal aid sector, Shadow Justice Secretary David Lammy, has tabled a ‘prayer’ against the SI. However, while the government usually debates an Early Day Motion (EDM) praying against an SI, if tabled by a shadow minister, debates are not compulsory. Moreover, few EDMs that are debated end up being annulled.

The Lord Chancellor, Robert Buckland, hit back at this resistance in a House of Commons debate on 9 June. While he admitted that the new fixed fee regime is a “significant fee increase,” he argued that it is merely an “interim measure”. He added that he would be taking “no lectures” from the Labour Party in relation to legal aid.

However, this response has not sat well with a number of legal aid firms and solicitors.

Not financially viable

Challenging the Ministry of Justice’s (MoJ) decision to increase the fixed fee, the ILPA has said that the changes will deal a significant blow to the legal aid sector.

Outlining what the new measures mean for the sector, the association said: “Previously, the appeal would be likely to go to a full hearing, and the firm would have received £567 for this work (for asylum), and the barrister £302 for the hearing. Now, where the solicitor has prepared the case in full and the barrister has drafted the skeleton argument at an early stage as required, the total fee available is £627”.

It added: “If that £627 was split to reflect the fact that the firm has done basically the same amount of work that would have been done for a full appeal hearing, that would leave an additional amount of just £60 for counsel to draft the appellant’s skeleton argument. This is an extremely low fee particularly when it is considered that in this scenario the skeleton argument would have been successful in persuading the [Home Office] to concede the appeal”. Furthermore, the association argues that this is just not financially viable for barristers.

The consequences of this are serious. Already, research from Refugee Action has shown that since 2005, there has been a 56% drop in asylum and immigration legal aid providers, resulting in “legal aid deserts”. Additionally, the charity’s data showed that by March 2018, across 26 local authority areas, there were over 100 individuals seeking asylum, but no local legal aid provision.

Now, many have raised concerns that the increased fixed fee will deter some solicitors from pursuing immigration and asylum cases that are more complex. This is due to the Amendment Regulations forcing solicitors to do more work for less money. Sonia Lenegan, Legal Director at the ILPA, commented that as a result, victims of trafficking, those seeking asylum and members of the LGBTQA+ community are likely to be hit hardest by these measures.

Adding to this, Adrian Seelhoff, Chair of the Law Society’s Immigration Law Committee, commented: “The consequence is that there will be insufficient funds to instruct counsel, and providers who do their own drafting would have to absorb the additional costs in circumstances where existing fee levels are barely viable”. Due to this, those most vulnerable will effectively be denied justice.

Lawfirm seeks judicial review

Seeking to overturn the Amendment Regulations, on 27 May, national firm Duncan Lewis, served a letter before action on the Lord Chancellor. The letter challenged the lawfulness of the changes. It argued that the Amendment Regulations under the new Online Tribunal Procedure do “not adequately reflect the additional work solicitors and barristers must undertake to properly represent their clients”.

Moreover, the firm has challenged the Lord Chancellor over the lack of consultation surrounding the implementation of the SI. In a statement the firm stated: “Without consultation, or any apparent evidence base, the amendment increases the likelihood that legal aid providers will be undercompensated for their work and places access to justice at risk. A wide cross section of leading barristers’ chambers have already stated that they will not take on cases under the new regime, and ILPA, the Law Society and the Bar Council have all raised serious concerns”.

The statement goes on to argue that the Amendment Regulations are “ultra vires” of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) as they place a “disproportionate restriction” on the right of access to justice.

A MoJ spokesperson said: “We will respond to the letter in due course”.