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Appeals, Children and young people, Human rights/equalities, Immigration and asylum, Initial decision-making, Judiciary, Tribunals

Pay to prove that you are a child: the government consults on fees for age assessment appeals to the Immigration and Asylum Chambers

By Jonathan Collinson (University of Huddersfield)

The government has launched a consultation on the fees payable by applicants who lodge certain kinds of appeals in the Immigration and Asylum Chambers (IAC): the administrative tribunals responsible for hearing appeals against decisions of the Home Office in immigration and asylum matters.

The consultation proposes fees – payable by the appellant – for appeals against an age assessment decision taken by the Home Office or local authority: £80 is to be payable if the applicant consents to a decision being made on the papers, and £140 if they wish to have an oral hearing. The consultation is launched in the same week that the Home Office has come under significant criticism for the way in which it has conducted age assessments, which the Refugee Council has said amounts to “a misuse of power by the government.”

This post criticises the government’s conduct of its consultation, challenges the validity of its reasoning, and argues that there ought to be no fees for age assessment appeals.

Age assessment decisions

Whether an asylum applicant is a child or an adult is of considerable legal and practical importance for the individual. The rights afforded to those in the immigration and asylum system under the age of 18 years is substantially greater than those who are adults, particularly where the child arrives without a parent or guardian.

Victims of trafficking are entitled to additional, specific rights when they are children, including the right to representation by a legal guardian, have necessary steps taken to identify their identity and locate their family, and additional assistance, support and protective measures.

‘Unaccompanied asylum seeking children’ (UASC) are also afforded specific legal rights not extended to adult asylum applicants. UASC cannot be held in immigration detention for more than 24 hours (Immigration Act 2014, s5). UASC come under the care of local authority children’s services, rather than the asylum support system (Children Act, s17). And they are entitled to ‘UASC leave’ in many circumstances, meaning that they cannot be removed until they are adults, regardless of the outcome of their asylum application.

These are not just legal rights, but practical rights too. Children who are wrongly classed as adults have been held at the notorious Manston processing centre where some have said that they were subjected to violence by adults. Others have been placed in mixed-gender hotels with adults, including instances where adults have shared a room with unrelated children.

The risks of trafficking and sexual exploitation of vulnerable children are obvious. ECPAT found that 45 known UASC went missing from hotels designated solely for housing UASC, between June 2021 and March 2022. Because a UASC who has been incorrectly determined to be an adult is recorded in Home Office statistic as an adult rather than a child, it is impossible to know how many actual children might have disappeared from adult asylum accommodation.

The fees consultation

In proposing fees for age assessment appeals in the immigration tribunals, the government consultation relies on a general justification that tribunals users should contribute “to the cost of the services they apply for” and that there is no “convincing reason” why age assessment appeals ought to be exempt from fees.

The government do reasonably point out that the proposed appeals fees are lower than the fees currently payable for the existing route for legally challenging age assessments. Currently, an age assessment decision can only be challenged by way of Judicial Review, with fees of £154 for an application for permission and £770 for a full hearing. However, that the proposed fees are lower than at present is not in itself an answer to arguments that there ought not be any fees on principled grounds. The change of avenue of remedies from judicial review to appeals provides the perfect opportunity to renew an assessment of the appropriateness of such fees in their entirety.

Finally, the government also rely on existing exemptions to immigration tribunals fees. The consultation relies on a general description of the existing exemptions for IAC fees. There is no specific consideration of how – and whether – the fees exemptions would apply to the case of individuals appealing an age assessment. Instead, the consultation bundles together the consultation (and equalities assessment) on fees for age assessment appeals with consultation on two other, unrelated, changes to IAC fees.

As such, the consultation is arguably unlawful on procedural grounds as it fails to demonstrate that it has engaged with the government’s international legal obligations to treat the best interests of the child as a primary consideration (UN Convention on the Rights of the Child, Article 3) or the Secretary of State’s domestic law obligations to have regard to the need to safeguard and promote the welfare of children in the immigration and asylum system (Borders, Citizenship and Immigration Act 2009, s55).

Fees exemptions

The most significant fee exemption for IAC appeals is for those receiving asylum support. This exemption is likely to cover the vast majority of individuals applying for asylum – both UASC and those arriving accompanied by family – who are age-disputed. However, not all child victims of trafficking may claim asylum: those trafficked for labour or sexual exploitation may not be at risk of persecution for a Refugee Convention reason, or they may be one of the “increasing number of children…trafficked from countries within the EU.” This is a potentially significant lacunae in the patchwork of fee exemptions.

Even if the vast majority of age-disputed asylum-seeking children could claim an IAC fee exemption under asylum support, it is worth commenting on how blasé the government’s consultation is about the practical effectiveness of some of the other fees exemptions. This is particularly striking given that the equality impact assessment in the consultation amounts to seven lines of text and a statement of justification amounting to no more than “we do not believe that individuals with protected characteristics would be particularly disadvantaged by these plans”. The consultation asks respondents to comment on whether the “proposals will have a disproportionate impact on individuals with protected characteristics? Are there any potential modifications we should consider to mitigate this impact?” This rather has the feeling of the consultation drafters asking those responding to the consultation to do their homework for them.

Two fee exemptions relied on in the consultation stand out because they lack practical effectiveness: the provision of legal aid and exceptional circumstances remission.

Firstly, according to Law Society research into legal aid deserts, 65% of people in England and Wales “do not have access to a immigration and asylum legal aid provider”. Even in areas of apparent legal aid coverage, research by Refugee Action shows that legal aid “Provision in England and Wales is not even adequate for first-time adult asylum applications”. This means that not all age-disputed asylum-seeking children will be able to access legally aided legal representation by which to appeal their age assessment as there is simply not enough legal aid to meet even basic demand, let alone complex ancillary litigation. Furthermore, the same research found that “the number of non-UK nationals referred into the National Referral Mechanism (NRM) as possible victims of human trafficking far outstrips the availability of specialist trafficking and immigration legal advice”. This means that inevitably some possible victims of trafficking who are age-disputed are also unable to obtain legal aid to appeal their age assessment, and thereby claim a fee exemption on the basis of their legal aid entitlement.

Secondly, the complexity of the exceptional circumstances remission of appeal fees to the IAC has long been subject to critique. Liberty endorsed ILPA’s critique of the fees remissions system as “difficult to navigate [and] opaque to the unrepresented.” ILPA itself argue that “appellants and their sponsors may face the barriers of disability and in some cases age, language or the impact of trauma they have experienced on top of the challenge of presenting the case without the assistance of a legal representative.” ILPA point to the fact that information on fees remission may be inaccessible without the aid of an interpreter. These problems are enhanced when a child is required to navigate the system alone: children cannot be expected to have the same level of education or experience of navigating bureaucracies as possessed by adults.

These examples highlight the disconnect between the picture presented by the consultation and the reality individuals face when attempting to navigate the UK’s asylum and immigration system. The exemptions used in the consultation to justify the imposition of fees as a default are not practically effective in all cases. This means that some children will be practically barred from accessing appeals against age assessments which incorrectly label them adults, with significant consequences for the protection of their human rights.

Start from a different place: age assessment appeals as about children protecting their human rights

I argue that the reasoning behind the consultation on IAC fees for age assessment appeals is flawed because it begins from a flawed premise: that this is an appeal being brought by an adult on an immigration and asylum matter. Instead, age assessment appeals should be viewed as appeals brought by children in protection of their human rights.

Firstly, the consultation seems to view age assessment appellants to be adults. The absence of consideration of the s55 duty or Article 3 UNCRC reinforce this view. But government’s justifications for introducing fees for age assessment appeals are much more tenuous when the appellants are viewed as children.

The general justification for appeal fees is “to seek a contribution from users of courts and tribunals to the cost of the services they apply for.” I have previously critiqued this narrative which positions IAC appeals as a “service” which individuals make a rational, economic choice to make use of, first by the decision to migrate, and second by deciding whether or not to appeal negative immigration decisions. Even in contrast to other forms of migration, this narrative is much less applicable to the context of trafficking and asylum – paradigmatic cases of forced migration – and also less applicable to the situation of child migrants. As Bhabha notes, “Children generally migrate because of decisions made by others”.

Because the consultation presumes the appellant to be an adult, the question as to where the appellant might find the money to pay for an appeal simply does not occur. Yet if we take as the starting point that the appellant is a child, then the question is acute. Children are not, generally, economically independent, and so rely on the decisions of others as to what money is made available for what purposes. They are unable to work in the UK to fund legal action, both for lack of leave to remain and because they are children. To independently seek financial means to pay for an appeal, the child becomes susceptible to myriad forms of exploitation.

Here the government might point to the fee exemptions: a child without independent financial means would pass the destitution test necessary for access to asylum support, and thus exempt from appeal fees. However, I argue that a precautionary principle ought to be invoked. If the argument is, in effect, that the fee exemptions are sufficiently comprehensive so that no child would in practice have to pay an age assessment appeal fee, then the simpler – and only absolutely comprehensive means of ensuring this – is to exempt age assessment appeals from fees at all.

The continued insistence of a fee which children be exempt from because of their likely financial circumstances reinforces that the consultation’s starting point is that age assessment appellants are adults seeking to obtain the benefits of being found to be a child, rather than children who have been mistakenly labelled adults seeking to establish the rights that they are entitled to as children. Not all age assessment appeals will find in favour of the appellant, some may really be adults seeking to “abuse” the system. Again, however, a precautionary principle suggests that it is better to treat age assessment appellants as children until the outcome of their appeal – which may result in a finding that they are indeed an adult – rather than treating them as adults until proven to be a child. More serious harm to individuals is directly foreseeable from treating children as adults and imposing a fee on that basis, than by exempting some “undeserving” adults from the fee.

Secondly, the consultation treats age assessment appeals as the application for a benefit, rather than a question of access to human rights. This is evident in the way that the consultation refers to fee remittances in “a small number of instances [which] typically related to the protection of the individual’s Convention rights”. These instances are treated as a distinct category from age assessment appeals as both a function of law (it strictly applies as a remittance of fees in leave to remain cases only) and rhetorically.

However, if we change our perspective, it is evident that the immigration and asylum “benefits” of being recognised as a child rather than an adult are issues of access to human rights. Many of the “benefits” of being housed in child-specific accommodations derived from the enhanced protections and safeguarding from possible violence and exploitation. Under this perspective, age assessment appeals are therefore inherently about access to human rights as enhanced respect and protection of human rights flows directly from being recognised as a child.

This is particularly the case for those rights which are most explicitly laid out in the UN Convention on the Rights of the Child (CRC): e.g. the right to be free from sexual, economic, and other exploitations (articles 32-5); right to education (article 28); an adequate standard of living (article 27); health (article 24); and “special care and assistance” whilst separated from family (article 20). Although the s55 duty does not impose the same level of domestic legal obligation to give effect to the rights of the CRC as s6 Human Rights Act 1998 imposes vis-à-vis the European Convention on Human Rights, the UK’s international obligations under the CRC are as compelling.

Therefore, there is a strong argument for exempting all age assessment appeals from fees because they are appeals about determining access to human rights protections. Placing such appeals behind a paywall may render the rights illusory, rather than real and effective.

Conclusion

The government’s consultation on fees for age assessment appeals is implicitly predicated on these appeals being brought by adults seeking an asylum and immigration benefit. From this starting point flows justifications for fees based on appellants paying for a service that they use, with fees exemptions for the most vulnerable.

In contrast, I argue that age assessment appeals ought to be viewed first and foremost as being brought by children seeking protection for their fundamental human rights. This change of perspective fundamentally undermines the rationales contained in the consultation for having fees for these kinds of appeals.

This change of perspective also inextricably leads to a conclusion that age assessment appellants ought to be generally exempt from fees, rather than reliant on ad hoc exceptions. This is because of both the nature of the appellant (a child) and the kind of appeal (about securing the respect and protection of human rights). The application of a precautionary principle so that there is no risk of any child being denied access to their human rights ought to outweigh concerns of providing a free right of appeal to some “undeserving” adult migrants.

Academic Bibliography

Jacqueline Bhabha, ‘“Not a Sack of Potatoes”: Moving and Removing Children Across Borders’ [2006] Boston University Public Interest Law Journal 197.

Jonathan Collinson, ‘Immigration Tribunal fees as a barrier to access to justice and substantive human rights protection for children’ [2007] Public Law 1

This blog is cross-posted at the Refugee Law Initiative Blog, available here.

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