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One Pump Court unable to accept most fixed-fee cases in the First-tier Tribunal due to legal aid changes
21 May 2020
One Pump Court’s core value is commitment to access to justice for the most vulnerable people in society. It is therefore with a heavy heart that members of the immigration team* along with members of 19 other chambers’ immigration teams*, have issued this statement.
Other than in exceptional circumstances, each member of the immigration team of the chambers listed below will not accept instructions under the ‘Reform Procedure’ to prepare an ‘Appeal Skeleton Argument’, unless specific provision is made for that work to be adequately remunerated.”
The chambers that have jointly issued the statement above are listed below.
One Pump Court’s reasons for issuing the statement
The ‘Reform Procedure’, also known as the ‘Online Procedure’ is a new, digital procedure which was being rolled out by the First-tier Tribunal (Immigration and Asylum Chamber) in stages from January 2019, but which now applies to nearly all appeals due to the Covid-19 emergency. We previously set out our concerns regarding the scheme here.
The Online Procedure requires that an ‘Appeal Skeleton Argument’ (‘ASA’) is prepared well in advance of the hearing in order for the Home Office to review the case and to decide whether to defend the appeal or not. Whilst we very much welcome a system that allows such review, One Pump Court, as well as ILPA, the Bar Council, the Law Society, other barristers chambers and law firms, had expressed concern that in publicly funded cases there are no funds available for preparation of the ASA. In appeals that are conceded, the barrister who drafted the skeleton argument would not receive any fee at all.
In response to the above concerns the Ministry of Justice has amended the Civil Legal Aid (Remuneration) Regulations 2013, with effect from 8 June 2020. Unfortunately, the amendments do not resolve the issue.
Under the new Regulations, a solicitors’ firm will now be paid £627 for an asylum appeal and £527 for an immigration appeal, whether or not there is a hearing. This is £400 more for an asylum appeal than was previously paid if there was no hearing. However, the Ministry of Justice accepts that the new system requires on average 8 hours of extra work for the solicitor at an early stage. It remains the case that where the final hearing does not take place, there is no provision for payment of the barrister for preparing the ASA. Preparing the ASA involves full preparation of the appeal and will involve many hours work. It is perverse that the more work the barrister puts into the ASA, and therefore the more likely the appeal will be successful without a hearing, the more likely it will result in the barrister not being paid at all. This creates a conflict of interest between the barrister and the lay client which is unacceptable.
It has been suggested that the £627 fee can be ‘shared’ by the solicitor and barrister. However, immigration legal aid rates are already extremely low and reducing them further will make it impossible for firms to be able to prepare them properly. The new figure reflects the fact that the solicitor will have to do an average 8 hours more work under the procedure. Nearly all of that work will be necessary whether or not the final hearing goes ahead. In any event, asking solicitors and barristers to make such financial arrangements is unlikely to be workable, and risks the creation of new conflicts of interest.
Even if the appeal is not conceded by the Home Office, in many cases the barrister who drafted the ASA will not be able to represent the appeal due to other diary commitments. In such a case the new barrister, although assisted by the ASA, would be required to fully prepare the appeal afresh and only one hearing fee would be available, meaning there would be no funds for the barrister who prepared the ASA. Further, even if the same barrister is able to represent at the appeal, the ASA is required so early in the procedure that many more hours work are required before the hearing in re-reading the papers and in most cases preparing an amended skeleton argument to reflect events, evidence and jurisprudence which did not exist at the time of drafting the original ASA.
A further problem with the amended Regulations is that it is now much harder for cases to reach the ‘escape’ point at which hourly rates are billable. ‘Escape’ occurs if the total work done on a case is three times more than the fixed fee allows for. If twice the work is done, only the fixed fee is paid. Due to the higher rate paid to solicitors in the Online Procedure, it will be far more difficult to reach the escape fee and that will result in members of chambers doing well in excess of three times the work provided for in the Regulations, without any additional pay.
It is therefore, as stated, with a very heavy heart, that One Pump Court barristers will not accept instructions, save in exceptional cases, where there is no specific provision of funding for the preparation of the ASA.
If you would like clarification of our policy or for press enquiries, please contact Ian Burrow via email@example.com
The chambers which have issued the joint statement are:
1 MCB Chambers Immigration Team
4 King’s Bench Walk Immigration Team
10 King’s Bench Walk Immigration Team
36 Public and Human Rights, The 36 Group
Broadway House Immigration Team
Doughty Street Chambers Immigration Team
Garden Court Chambers Immigration Team
Garden Court North Chambers Immigration Team
Goldsmith Chambers Immigration Team
KBW Chambers Leeds
Lamb Building Immigration Practice Group
Landmark Chambers Immigration Group
Matrix Chambers Immigration Team
No. 5 Immigration Group
No. 8 Immigration Team
One Pump Court Immigration Team
* Barristers in chambers are self-employed and are free to take work as they please within their professional obligations.
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