Earlier this week, in R (on the application of UNISON) v Lord Chancellor, the Supreme Court ruled the employment Tribunals and the employment Appeal Tribunal Fees Order 2013, (the Fees Order), which came into force in 2013, was unlawful and discriminatory.
Unless “exceptional circumstances” applied, and the threshold for this was set extremely high, no waiver of the fees would be made.
This led to a drop of around 79% in the number of claims brought before the Employment Law Tribunal from 2013-2017.
Whist this case is an overwhelming victory for employees, and on a deeper lever, access to justice and the Rule of Law, a question keeps begging to be asked, namely, “when Immigration and judicial review fees suffer an increase, are arguments for unlawfulness and discrimination made?
No one would dispute that immigrants, a group which often includes children, women, LBTG people and those fleeing religious persecution and political instability, are vulnerable to discrimination. Granted, any rise in fees in Immigration or judicial review law do not generally apply to refugees and those seeking humanitarian protection, but not all vulnerable people fall into these criteria.
In September 2016, the British government attempted to increase Immigration Tribunal fees by up to 500% in some cases. Fees for an application to the First-Tier Tribunal dealing with Immigration and asylum cases were to rise from £80 to £490, while an oral hearing would have increased from £140 to £800. For the first time, appeals to the Upper Tribunal were to be charged at £350 for each application and £510 for an appeal hearing.
Two months later, amid howls of opposition from migrant lobby groups and the legal profession, the fee increase was dropped.
Fees for judicial review were also raised last year, albeit nowhere near so dramatically.
The Supreme Court decision – how the conclusion of unlawfulness and discrimination was reached
Much of the Supreme Court’s decision in Unison turned on the argument that the Fees Order prevented employees accessing justice.
In delivering his judgment, Lord Reed stated that Parliament had conferred certain statutory rights on employees. If employees were prevented by a government decision from enforcing those rights in the courts, then the rights conferred by Parliament become a farce.
Lord Reed stated it succinctly when he said:
“The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.”
Therefore, access to justice was being denied by the application of the fees.
In addition, the Fees Order was held to be unlawful under EU law.
The issue of discrimination was discussed by Lady Hale. She held that the Fees Order was potentially discriminatory under s.29 of the Equality Act 2010, which reads (as relevant to the case):
“(1) A person (a ‘service-provider’) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)-
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.”
She went on to say that the Fees Order provided for a higher fee to be paid for Type B employment claims, which generally cover unfair dismissal claims, equal pay claims and discrimination claims.
Figures from UNISON suggested that 54% of Type B claimants were women, whereas only 37% of Type A claimants were women. Therefore, the higher fees payable, either for Type B claims in general or for discrimination claims in particular, are indirectly discriminatory against women (and others with protected characteristics too).
She stated: “The alternative way in which the discrimination case is put is that charging higher fees for discrimination claims is indirectly discriminatory against women, who bring the majority of such claims, and others with protected characteristics who also bring them.”
The accusations of discrimination of the Immigration Tribunal fees increase
Johnathan Collinson, in an article, Immigration Tribunal fees as a barrier to access to justice and substantive Human Rights protection for children* stated that the proposed Immigration Tribunal fee increases undermined children’s access to justice, as a method of protection for their substantive Human Rights.
He stated: “children are not economically active and therefore large fees increase children’s dependence on their parent’s ability to fund litigation. This increased dependency further undermines children’s status as independent holders of Human Rights because fees act as a barrier to children bringing cases to protect their own Human Rights.”
He proposed children be made exempt from the increase in Immigration Tribunal fees.
Potentially denying migrants access to justice is not a new development, or even one confined to the UK. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 declared the end of legal aid in Immigration in England and Wales except for a few strictly specified exceptions. This had a huge effect on the ability of many migrants to bring claims before the Immigration Tribunal and challenge decisions by judicial review.
In Australia, it costs an estimated £1,052 to apply for review of a bridging visa decision, except in cases where severe financial hardship can be proven. This is likely to be well out of the reach of many migrants (although legal aid is available in some circumstances).
Paying for justice?
The government argued when bringing in the Fees Order that it was designed to relieve some of the financial burden of paying for the Employment Tribunal from the taxpayer. The same rationale was applied to the proposed Immigration Tribunal fees.
However, Lord Reed pointed out that the drastic drop in the number of cases brought before the Employment Tribunal and employment Appeal Tribunal following the introduction on the fees in 2013 meant that very little revenue was collected.
With regards to how the argument for recovery of costs in the Immigration Tribunal could be made through fees, the Law Society said, prior to the proposal being scrapped:
“The Law Society vigorously opposed the fee increases because equal access to justice is more important than income generation when it comes to setting court and tribunal fees.”
When any court fees are subject to a harsh and abrupt increase, groups and organisations who promote Human Rights and access to justice are quick to react negatively.
However, like a frog being slowly cooked in a gradually heating pan of water, small incrementations in the level of fees payable for bringing a case in the Immigration Tribunal and/or judicial review can quickly make the ability to access justice out of reach for vulnerable migrants and their families.
Therefore, it is not necessarily the big fee increases that should concern us, as these are usually swiftly quashed. It is the minor yearly lifts in fees that fly under the radar of the media that need to be monitored, to ensure everyone in the UK can benefit from access to justice and the rule of law.
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* P.L. 2017, Jan, 1-10
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Posted on: Monday, 31 July, 2017