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New First-tier Tribunal guidance on awarding costs for unreasonable behaviour
1st August 2018 By wesleygryk
On 31 July 2018, the President of the First-tier Tribunal published a new Presidential Guidance Note setting out when the Home Office may be required to reimburse successful Appellants for their legal costs. This firm played a key role in helping develop this guidance. We hope it may eventually encourage the Home Office to make and defend fewer poor and unfair decisions, and in the meantime provide some compensation to migrants and their families when they do.
The Tribunal's power to award costs when one party behaves unreasonably
When the Home Office wrongly refuses a migrant leave to enter or remain in the United Kingdom, the consequences for the individual and their family can be devastating. At the very least, they face months of stress and anxiety. In many cases, families are divided, and individuals face eviction, unemployment or denial of necessary medical care. In addition, forcing the Home Office to acknowledge and correct their mistake almost always requires specialised legal advice at a time when the migrant and their family can least afford it.
In most other kinds of litigation, the party who wins is normally entitled to be reimbursed for their reasonable legal costs by the other side. In appeals to the Immigration and Asylum Tribunal, however, costs can only be awarded when one party or their representative has behaved "unreasonably".
The key question is: what does "unreasonable" mean? Many migrants, their families and their legal representatives will have had the experience of receiving deeply unfair or simply factually or legally incorrect refusal decisions. Is it unreasonable for the Home Office to make decisions that are clearly wrong? Is it unreasonable for them to defend those decision on appeal?
The test cases of Awuah and Others
In June 2017, a joint presidential panel of the presidents of the First-Tier and Upper Tribunals (Immigration and Asylum Chamber) selected four test cases in which the Appellants had won their appeals and then applied for an order that the Home Office pay their legal costs. The Presidential Panel listed the appeals to be heard jointly and invited the Appellants to make submissions not only about why they should be reimbursed for their own legal costs, but also about the more general principles that Immigration Judges should apply when deciding future costs applications. I represented two of the four appellants in the costs proceedings, TN and SJ (TN had been represented by Amy Bennett, now of Teacher Stern Solicitors, with regard to the substantive appeal). The other two, Awuah and Momoh, were represented by Paul Keeley of Sutovic and Hartigan and Kola Akomolede of Nathan Aaron Solicitors, respectively. The Appellants instructed Rebecca Chapman and Helen Foot of Garden Court Chambers.
The Joint Presidential Panel's decisions in these appeals have now been incorporated into an official Presidential Guidance Note for Tribunal Judges, published on the Tribunal's website.
The guidance does not establish a general principle that Appellants should always be compensated for their legal costs if they win an appeal. What it does do is set out unambiguously that the Home Office should concede appeals it is clearly going to lose, and do so at an early stage. Given that the Home Office now loses 50% of appeals that go to a full hearing, this guidance has the potential to benefit a large number of Appellants and their families.
Who should costs orders be made against?
The guidance has two parts, reflecting the two different hearings held in the test cases. The first part considers whether an application for costs could be made against individual representatives of the Home Office (Home Office Presenting Officers), or only against the Home Office as a department. The decision of the Presidential panel was that it was inappropriate to make an Order against an individual HOPO. Although this issue was naturally of great importance to HOPOs, it was of less significance for Appellants. If a HOPO has acted unreasonably in the course of an appeal, the important thing for Appellants is that there is some sanction to discourage such conduct in future and that they are compensated for any additional legal expenses they incur as a result. Whether that sanction and compensation technically takes the form of an application for costs against the individual HOPO or against the Home Office more generally may make little practical difference.
When is it unreasonable for the Home Office to defend a wrong decision?
The second part of the guidance considers the wider question of the factors a Judge should consider when deciding if conduct has been unreasonable enough to justify an award of costs. It briefly addresses issues such as the period the costs award might cover, the latitude to be afforded to unrepresented litigants, and the need for Judges to give reasons for their decisions.
The most significant part of the guidance sets out when it is unreasonable for the Home Office to defend an appeal at all. The Home Office's published policy is to refuse to reconsider a decision, no matter how flawed, if there is a right of appeal to the Tribunal. During the appeal proceedings, Home Office practice has been not to consider the merits of their refusal decision until, at the very earliest, 24 to 48 hours before the full hearing, when the is file assigned to a Home Office Presenting Officer to prepare for the hearing. In some cases, it is only at this point that a conscientious HOPO would recognise that the decision was simply wrong and could not be defended – although even in many such cases, individual HOPOs were unable to get permission to withdraw the decision prior to the hearing and had to appear in court to defend what they knew was an indefensible decision. In cases where the Home Office did not send a representative to court, or where they instructed outside Counsel, there was simply no opportunity for the Home Office to withdraw even those most egregiously incorrect decisions.
The decision of the Presidential Panel on this issue was that this behaviour was unlawful. The new Presidential Guidance makes it clear that it is unreasonable and may be grounds for an Appellant to be awarded their costs. The guidance sets out the following general principles:
1. It will "as a strong general rule, be unreasonable to defend – or continue to defend – an appeal which is, objectively assessed, irresistible or obviously meritorious."
2. The Home Office should assess every refusal decision within six weeks of being notified that the appeal has been lodged. If the appeal is obviously meritorious, it is unreasonable for the Home Office not to make appropriate concessions or even withdraw the appeal at that point.
3. The Home Office should assess the decision again whenever there is any significant development in the law or the evidence. This means that Appellants whose applications may have been refused because of inadequate or missing evidence have a right to expect that the Home Office will review the refusal decision and withdraw it if appropriate after new evidence has been served. This could be shortly before the hearing, but it could be many months earlier.
4. These assessments must be carried out by a "reasonably competent civil servant", presumed to be "properly qualified and sufficiently trained so as to adequately discharge the important function of representing a high-profile Government Minister in the self-evidently important sphere of immigration and asylum legal proceedings in a society governed by the rule of law." This may give some encouragement to the many Home Office employees who work hard to do the right thing, but sometimes without the training or support they need. It also means that Appellants do have the right to expect that refusal decisions will be reviewed carefully, fairly, and in accordance with the law and the evidence, which has not always been the case in the past.
This guidance is essential reading for anyone who feels that their application to the Home Office has been unfairly refused. As long as they have a right of appeal, they can now point to this guidance and urge the Home Office to reconsider the decisions that are clearly wrong, even long before the hearing.
If the Home Office fails to respond, maintains the refusal decision for inadequate reasons, or only withdraws the decision at a very late stage, the Appellant should consider applying to the Tribunal for an order that the Home Office pay their costs in the appeal.
The full case on which the guidance is based is unreported, but Appellants can nonetheless apply to the Tribunal to be allowed to rely on it. It contains helpful discussions of the reasoning behind the principles set out above, as well as applying these principles to the facts of the four individual cases. It can be accessed and downloaded here.
How is a costs application made?
Applications for costs must be made to the Tribunal that heard the appeal and served on the Home Office. They must be made within 28 days of when an appeal is concluded. This could be within 28 days of when the Tribunal decides that the appeal should be treated as withdrawn (because the Home Office has withdrawn its refusal decision), or 28 days after the decision allowing the appeal is sent to the Appellant. There is no specific form or fee for this application. Because the law on when Appellants should be awarded their costs is new and still developing, it may be advisable for Appellants to seek legal advice and assistance before making a costs application.
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