Immigration tribunal fees as a barrier to access to justice and substantive human rights protection for children

This article argues that children’s access to justice, as a method of protection for their substantive human rights, is undermined by the government’s recent and substantial increases to tribunal fees. In the context of the UK government’s ongoing commitment to reducing public spending, it has engaged in a process of shifting the financial cost of maintaining the justice system from the state to individual litigants. Although court fees for criminal defendants were withdrawn,2 in the civil justice system fees for courts and tribunals have been either introduced or increased. It is in this context that the government has increased appellant’s fees for access to the Immigration and Asylum Chambers (IAC) of the Tribunal, including an increase of 471% for oral hearings at the First-tier Tribunal. Part one of this article provides a short background to the government’s increases in tribunal fees and argues that the government’s justifications for fees increases rely on a narrative of personal choice engaged in by rational economic agents. Part two locates children within the UK’s immigration appeals scheme and identifies them as independent holders of substantive human rights; rights which are explicitly at stake in immigration appeals, particularly art.8 of the European Convention on Human Rights (ECHR). Part three discusses court and tribunal fees as recognised barriers to justice and identifies again a persistent narrative of choice underpinning the law in this area. However, it is a narrative which fails to take into account children’s situation as being economically inactive. The effect is that neither the case law nor the government consultation on tribunal fees sufficiently takes into account how fees are a particular barrier to access to justice affecting children, and therefore fails to adequately protect their independent human rights. This article is concerned only with non-asylum appeals of non-British children. Most asylum appeals are covered by existing fee exemptions for those in receipt of asylum support and/or legal aid. British children are also affected by the result of immigration appeals of their parents because either the child will also have to leave the UK (constructive removal) or they will lose physical contact with that parent.3 The issues discussed in this article therefore also apply to British children *P.L. 2 but because their rights are affected at one step removed from an adult’s immigration appeal, for the sake of clarity they are not considered in this article. However, if one accepts the premise presented in this article, it is one that applies not only to other child applicants within the IAC, but to any arena—public and private law alike—in which the human rights of children are determined. This article argues that children should always be exempt from court and tribunal fees when their human rights are at stake.