Costs in Immigration Appeals

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
31 October 2018

We have represented an appellant and assisted him in seeking costs under Rule 9(2)(b) of the Tribunal Procedure (First Tier Tribunal) (Immigration & Asylum Chambers) Rule 2014 on the grounds that the Respondent, namely the Home Office, has acted unreasonably in defending and conducting the proceedings.

In the initial decision the Home Office argued that our client had used deception in the ETS/TOEIC test.  The decision was successfully appealed. Once we won the case the Home Office applied for permission to appeal this determination but the application was refused on 17th August 2017.  Therefore, our client expected to be granted leave to remain in the UK.  In a decision of 6th December 2017, the Respondent asserted that the points for appropriate salary in appendix A of the Immigration Rules had been wrongly awarded and that the appellant application of 15th May 2014 should have been refused.  We wrote to the Secretary of State on 19th December 2017 confirming to them that the relevant occupation code that they used was wrong and therefore their decision was unsustainable and wrong.  We asked the Home Office to withdraw their decision but they did not.

We warned the Home Office that they would have to pay our client’s costs in accordance with the cost provisions of the Procedure Rules, but we were ignored.  At the hearing in response to our argument that the Home Office decision was unsustainable, the Home Office representatives informed the Tribunal that they had no submissions at all to be made and the appeal was allowed on the spot.

In the circumstances we submitted that the Home Office acted unreasonably in defending these proceedings.  The decision of the first Judge ought to have been implemented as to the reasons for the decision of 6th December 2017 were clearly and demonstrably erroneous.   The Home Office was encouraged to review the decision in our letter of 19th December 2017 and was obliged to do so by virtue of their own withdrawal decision and conceding the appeals policy.   The Respondent failed to review the decision and to follow their own guidance.  At the hearing the Respondent was unable to make any submissions in support of their decision and therefore we asked that the Tribunal make a costs order in favour of the appellant.

The question is why the Home Office would defend or continue to defend an appeal which was objectively and obviously wrong and without merit.  Those reading this blog will be familiar with cases where the conduct of the Home Office leaves a lot to be desired.  The Home Office takes positions that have previously been considered, fail to consider evidence lodged and leave it to the day of the hearing to withdraw their appeal.  Such conduct is unnecessarily expensive.   It is important from now on to argue that the Presidential guidance no. 2 of 2018 which deals exclusively with wasted costs orders in IAC appeals, and which was published on 1st August 2018 should be followed.

Please follow the guidance note and make applications; the questions the Tribunal might need to answer in order to award the costs will be: has the appellant acted unreasonably in bringing an appeal?  Has the appellant acted unreasonably in its conduct of the appeal?  Has the respondent acted unreasonably in defending the appeal and has the respondent acted unreasonably in conducting its defence of the appeal?

The Rule clearly embraces the whole of the proceedings, thus the period potentially under scrutiny begins from the date that an appeal comes into existence and ends when the appeal is finally determined by the Tribunal in question.  It embraces all aspects of the appellant’s conduct in pursuing the appeal and all aspects of the respondent’s conduct in defending it. This clearly encompasses interlocutory applications, case management hearings, and Final hearings.