Legal Update: The costs of immigration

Increasing application fees, proposed hikes to court and tribunal charges, and inaccessible legal aid all contribute towards the creation of a hostile environment for migrants in the UK.

Increases to application fees

Fees for immigration applications were changed on 18 March 2016, with increases of 25 per cent to family (such as partners, parents and adult dependant relatives), settlement, and nationality applications.

Children who are being assisted, maintained or accommodated by the local authority (such as under sections 17, 20 or 31 of the Children Act 1989 in England and Wales) are exempt from paying application fees.

For those who are not exempt, it is possible to apply for a fee waiver for some immigration applications. This can be used for applications for leave to remain outside the immigration rules or on the basis of the applicant's private and family life, but not for applications to settle in the UK or for British citizenship.

Even if families are in receipt of financial support from local authorities because they are destitute, that does not necessarily mean that their application fee will be waived. Such applicants still have to show that they would be rendered destitute by payment of the fee, or that there are exceptional circumstances relating to their ability to pay the fee.

It is often unrealistic to expect applicants to successfully submit this application without assistance. The process of applying for such a waiver is complicated. The application form is 19 pages long and the evidence required to support the application is extensive.

The Office of the Immigration Services Commissioner (OISC) - the body that regulates immigration advisers - has confirmed that fee waiver applications are not a "relevant matter". This means that you do not have to be a solicitor or OISC-qualified to help someone complete the fee-waiver application form. However, advice and assistance must not be given about the immigration application by an unregulated adviser.

Legal Aid and exceptional case funding

In April 2013, the legal aid system, designed to help those with legal problems who are unable to pay for a lawyer, was drastically reduced, with whole areas of civil law no longer covered. The only way to secure legal aid for most immigration cases is now to apply for funding on an exceptional basis.

The system of "exceptional case funding" is available where denying legal aid would breach someone's human rights or EU law rights and it would be practically impossible for them to bring their case or the proceedings would be unfair. It is only available to applicants whose case also meets the merits test and who are financially eligible for legal aid. The scheme was lauded as a safeguard against concerns about the denial of access to justice by children and vulnerable young people.

Since the advent of the system, significantly fewer applications for exceptional case funding were made than had been predicted. The overall percentage of applications between April 2013 and March 2015 that resulted in grants of funding was less than 5.4 per cent. This resulted in calls by the children's commissioner for the government to urgently review and reform the exceptional case funding system, as well as legal challenges against decisions of the Legal Aid Agency to refuse to grant funding.

In a judgment in December 2014, the Court of Appeal criticised the operation of the exceptional case funding system and ruled that the denial of legal aid in immigration cases can breach the procedural requirements of Article 8 of the European Convention on Human Rights (the right to respect for private and family life). However in May 2016, following a challenge to the whole scheme of exceptional case funding, the Court of Appeal found that while there are defects in the procedures for applying for exceptional case funding, these are not so systematic as to render them unlawful.

Limited success has been had in applications for exceptional case funding following the December 2014 judgment. The Coram Children's Legal Centre, the Public Law Project, other organisations, law firms and individuals have managed to secure exceptional case funding. However, as is characteristic of the Legal Aid Agency, decisions are not always appropriate or consistent and applicants are still having to challenge manifestly unfair refusals. This leads to unnecessary delays, as well as further time and resources being used before the legal process has even begun.

As the OISC has confirmed that applications for exceptional case funding are not a "relevant matter", you do not have to be a solicitor or OISC qualified to help someone with this application. It is important to continue to try to secure exceptional case funding as this is the only way to ensure that those who require and are entitled to legal representation on their immigration matter can obtain such advice without having to pay for it themselves.

Download "Legal Update: The costs of immigration" as a PDF

Legal Update is produced in association with experts at Coram Children's Legal Centre www.childrenslegalcentre.com

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