In August 2020, after Duncan Lewis brought judicial review proceedings, new fixed fees for immigration tribunal appeals were dropped in a Ministry of Justice (MoJ) U-turn.

In May, the MoJ had announced a new legal aid fixed fee for appeals in the First-tier Tribunal (Immigration and Asylum Chamber). There was a change in the online procedure, which meant that practitioners would have to prepare an advance skeleton argument to set out the issues at an early stage. The change was intended to streamline the appeals process (Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 SI No 515).

It was an extraordinary decision to bring in an exceptionally low legal aid fee for this online procedure. The plan was to have this additional fee added on to the existing fees and then review it in a year’s time. The Law Society was very concerned about this, as the additional amount was only £60, yet practitioners predicted that it would take, on average, about eight additional hours of work.

As well as being interim director of LAG, I am chair of The Law Society’s Access to Justice Committee and, as such, I took part in frequent phone calls with the MoJ, the Legal Aid Agency, HM Courts & Tribunals Service and practitioners over the past few months, looking at what was happening in the courts and tribunals, what assistance could be given to practitioners and responses to lockdown generally, and this was one of the issues that immigration practitioners often raised. Representatives from the Immigration Law Practitioners’ Association (ILPA) frequently asked for the fee to be reconsidered but no changes were made.

In a press release on 11 August 2020, The Law Society’s president, Simon Davis, said: ‘There was a very real risk that fixed legal aid fees for the preparation of appeals would have made the immigration tribunal inaccessible, as they were utterly inadequate for the work required.’

Sonia Lenegan, the legal director of ILPA, told Legal Action: ‘We welcome the lord chancellor’s decision to concede this case at an early stage, but litigation should not have been necessary here. On the day the regulations were laid, ILPA published a detailed statement which contained points that we had been making to the Ministry of Justice for months. We were concerned about the evidential base for the new fixed fee and said that hourly rates should be implemented during the consultation to enable data collection. We find it very encouraging how effectively the sector worked together on this important issue, both before and during the litigation by Duncan Lewis.’

Duncan Lewis said the lord chancellor had decided to revoke the amendment regulations and will instead put in place a temporary fee regime that will allow providers to undertake work under the online procedure in the knowledge that they will be remunerated at hourly rates.