Legal aid fee for First-tier Immigration Tribunal appeals following CCD process

The Ministry of Justice (MoJ) has announced a new legal aid fixed fee for appeals using the new HM Courts and Tribunal Service online procedure via the Core Case Data (CCD) platform.

Any current or future appeals directed by the tribunal are to follow the process of the new online procedure, which is intended to streamline the appeals process.

The procedure introduces the requirement to produce an advance skeleton argument (ASA) to clarify issues at an early stake in the appeals process.

This is with a view to increasing the number of appeals withdrawn before the substantive hearing takes place.

Stage 2c fee

New regulations will provide for a Controlled Work Stage 2c fee. This will replace the current Stage 2a and Stage 2b fees for qualifying cases.

The new fee is intended cover the additional cost of preparing the ASA and is calculated on the basis that this will require on average an additional eight hours of work at £50 per hour.

The new Stage 2c fee will be:

  • £627 for asylum appeals
  • £527 for immigration appeals

The fee will come into force on Monday 8 June.

The MoJ has stated that the fee will also apply to concluded cases where bills have not yet been paid at that date.

This is an interim fee until June 2021, during which time the MoJ will gather views and data on whether the fee provides an appropriate level of remuneration.

The Legal Aid Agency will make the necessary amendments to the immigration contract specification to reflect the new fee.

Our view

We’ve considered the new fee with input from members of our Immigration Law Committee.

We have serious concerns that the Stage 2c fee will not provide sufficient remuneration for production of an ASA.

We’ve written to the MoJ making the following points.

For cases that conclude with a hearing, the Stage 2c fee is only £60 more than the current Stage 2b fee.

This is difficult to understand when the MoJ has acknowledged that there’ll be on average an additional eight hours of work involved in the new procedure.

We think it unlikely that there’ll be significant decrease in the number of appeals going to a final hearing.

The modest increase in withdrawals under the pilot is unlikely to be sustained under the pressure of case volumes as the new procedure is fully implemented.

For cases that conclude before a hearing, the Stage 2a fee of £227 is inadequate as there’s often a similar amount of preparation required as for cases that go to hearing. This often enables the ‘escape fee’ to be claimed.

Although the new Stage 2c appears to be an increase of £400, it will not be in practice because far fewer cases are likely to reach the new escape fee limit.

Much of the increase will be needed to cover existing work rather than all the additional work demanded by the ASA.

The MoJ appears to have seriously underestimated the number of appeals that reach the ‘escape fee’ level and thus underestimated the significance of ‘escape fees’ in funding appeals.

What this means for solicitors

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.

Next steps

We have called upon the MoJ to introduce (at least on an interim basis) a fee for the ASA based on hourly rates.

This would enable data to be gathered on the actual costs of undertaking this work.

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