Empowering tribunal judges

For the first time since statutory immigration appeals were introduced in the early 1970s, first instance immigration judges have acquired powers to make awards of costs, ironically at the same time as part 2 of the Immigration Act 2014 strips away rights of appeal in many types of case.

When the provisions of the 2014 Act come fully into force, rights of appeal will be limited to cases raising asylum/wider human rights issues. Where appeal rights are preserved, the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2014 No 2604 (L. 31) contain new powers to award costs in proceedings before the First-tier Tribunal.

For cases that go further, the provisions also allow the Upper Tribunal to award costs where the First-tier Tribunal has the power to do so: see rule 10(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 SI 2008 No 2698 (L. 15),
as amended.

Disregarding directions

The Home Office is renowned for its brazen disregard of directions issued by the tribunal, as well as for the tactical withdrawal of underlying decisions (and hence the appeal) at the door of the court, a practice so deprecated by the immigration judiciary that it resulted in the introduction of rule 17(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to put
a stop to the practice.

This requires the tribunal’s consent for a withdrawal to take place, but only in Upper Tribunal cases. A provision covering similar ground can be found at, again, rule 17(2) of the new First-tier Tribunal Procedure Rules. However, this states the First-tier Tribunal ‘...must (save for good reason) treat an appeal as withdrawn...’ where the respondent withdraws the underlying decision, informs the other parties of and provides reasons for this. In other words, the tribunal is more likely to accept the withdrawal, which, in turn, must mean that a costs penalty is now a real possibility in such situations.

Appellants’ representatives can hardly be said to have escaped censure by immigration judges either. A recent, and arguably unfair, example can be found in VHR (unmeritorious grounds) Jamaica [2014] UKUT 000367 (IAC) where a High Court judge, sitting in the Upper Tribunal, criticised the bringing of what they saw as a ‘manufactured appeal’, one of an increasing number said to have been made.

Rule 9(1) in the new First-tier Tribunal rules continues to provide for the making of an order for the respondent Home Office to repay any fees paid to bring the proceedings in the first place. Such powers were introduced in tandem with the introduction of tribunal fees back in 2011, so there is nothing new in this.

In general, these fees have tended to be refunded where an appeal has been allowed, unless reasons are identified why the general rule should not apply. Cases where fees have not been refunded have been where appellants failed to provide evidence at the application stage which, if provided, could have avoided the need for the appeal.

Sea change

The sea change arises out of rule 9(2) of the new rules, which states:

(2) The Tribunal may otherwise make an order in respect of costs only –

(a) under section 29(4) of the [Tribunals, Courts and Enforcement Act 2007] (wasted costs) and costs incurred in applying for such
costs; or

(b) if a person has acted unreasonably in bringing, defending or conducting proceedings.

An order for wasted costs can thus be made against a party’s representative and costs can be awarded against either party in cases where a person can be said to have acted unreasonably.

Further provisions go on to provide for the tribunal to award costs of its own volition or on the basis of an application by a party (rule 9(3)) and provide the opportunity for the party said to be at fault to make representations (rule 9(4)).

Rule 9(5) provides that an application for
such an order can be made at any time during proceedings, but no later than 28 days after the sending out by the tribunal of a notice of decision that disposes of the proceedings or a notice of withdrawal as the case may be.

Rule 9(7) provides that the amount of costs can be determined through summary assessment by the tribunal, agreement between the parties or by way of detailed assessment if not agreed. Under rule 9(9), where an order for detailed assessment has been made, a party may apply to the county court for a detailed assessment on either the standard or, if envisaged in the order, an indemnity basis.

Clearly, these provisions do not provide for
a costs ‘follow the event’ regime; it is far more discretionary than that. This will come as a disappointment to privately funded litigants faced with having to challenge obviously inept Home Office decisions that have interfered with their livelihoods and/or studies or caused uncertainty for families – all the more given the limited availability of legal aid in the jurisdiction.

These appeals are often conceded by the Home Office or quickly allowed by tribunal judges only to be ‘remitted’ to the Home Office to reconsider – with a further ride around the roundabout should the refusal be maintained, albeit for
more cogent reasons.

Judges’ powers

On the other hand, tribunal judges will use this power with some alacrity in cases where the Home Office withdraws decisions at the door
of court, as it has a habit of doing in order to
avoid a defeat adversely affecting performance
targets, and also in cases where there has
been repeated failure to comply with case management directions, which has resulted
in delay.

Judges have, until now, often remarked in court that they cannot ‘force’ Home Office compliance; now they have a sanction that will help them to do so. The difference between the two rule 17(2)s in the First-tier and Upper Tribunal procedure rules has already been noted; the difference means that the Home Office remains largely
at liberty to withdraw decisions in First-tier appeals, albeit now with the threat of a
financial sanction.

By the same token, those representing appellants must be alert to the need to seek adjournments, when these are unavoidable, at the earliest possible juncture, to file documentary evidence in a timely manner and to be wary of bringing cases that obviously lack merit (a tactic often used to stave off inevitable removal) in order to keep the threat of costs at bay.

The attention of clients must be drawn to these provisions before an appeal is lodged as the situation on the ground is going to change. Both First-tier and Upper Tribunals now have the power to follow up criticism, which they have never been shy of giving, with a costs penalty. Both tribunals will make use of their new powers in appropriate cases; until now, immigration judges have had to make do with issuing a judicial rebuke, either in court or in the course of a written, and usually unreported, determination.

A more heavy handed approach to costs on the part of the judiciary would certainly be preferable to other provisions contained in the newly enacted rules, notably 2(1)-(3) (the overriding objective) and 2(4) (the duty to ‘help’ and ‘co-operate with’ the tribunal). SJ

Richard Young is a consultant solicitor specialising in immigration law and procedure at Sentinel Solicitors 

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