The Ministry of Justice (MoJ) published Immigration legal aid: a consultation on new fees for new services
on 13 June 2022 and has invited responses not later than 8 August 2022. A series of stakeholder meetings will be organised where views and comments ‘will be taken’, though whether that translates to changes remains to be seen.
The key changes include the following:
•Online appeals will be subject to revised fixed fee costs limits with a distinction drawn between cases that conclude before a final hearing (£669 for asylum appeals and £628 for non-asylum appeals) and cases that conclude at final hearing (£1,009 for asylum appeals and £855 for non-asylum appeals).
•In these online appeals, for a case to escape the fixed fee limit, a multiplier of two will be used, rather than three.
•In calculating whether the case has escaped the fixed fee threshold, it will no longer be necessary to include the legal help costs, ie, it is not the totality of legal aid costs but only the online appeal costs that need to be considered when determining whether a case will exceed the threshold.
•Appeals against decisions on age assessment will be heard by the First-tier Tribunal and are envisaged to be paid as licensed work. The consultation invites questions on whether such work should be conducted by those with a public law contract, a community care contract and/or an immigration contract.
•Work to rebut a presumption that a person is a group 2 refugee as opposed to group 1 (as defined under Nationality and Borders Act 2022 s12) is to be paid (for now) at hourly rates as a separate matter, though the intention is to collect data to consider fixing a fee in due course. There is to be a temporary contractual amendment from 28 June 2022 (the date on which the provision will be in force) while the consultation remains open.
There are a series of 16 questions posed within the consultation and most invite the contributor to agree with the proposals and if they don’t, to ‘explain why and suggest an alternative’ (see page 42). Although no doubt the consultation will be with the open-mindedness that practitioners have come to recognise in their dealings with the MoJ, the slant of the questions suggests a favoured view should a contributor be tempted to disagree.
It is also worth bearing in mind that what is not currently addressed is whether non-online appeals will continue to be remunerated on an hourly rates basis or whether remuneration will revert to the lower figures set out within the 2018 Standard Civil Contract Specification Category Specific Rules: Immigration and Asylum
. Further, although reducing the multiple in respect of the fixed fee from three to two would generally be advantageous (but for the fact that the fixed fee itself has been increased), that multiple reduction will only apply in online appeal cases and will certainly not apply to the multiplier for legal help cases. While work undertaken to rebut the group 2 refugee presumption is subject to hourly rates, there is no indication as to whether that will be subject to an initial extendable limit (as exists, for example, in the context of bail remuneration).