A heavyweight Presidential panel sitting in the First-tier Tribunal has made multiple awards of costs against the Home Office for unreasonable behaviour and given guidance on the proper approach to making such awards in future. Despite the decision being promulgated in December 2017, the Upper Tribunal’s Reporting Committee has elected not to report the decision and it has not yet been added even to the databases of unreported decisions.

The reasons for the apparent decision not to report such an important case are only to be guessed at. Having waited over six months for the decision to be reported, we have elected to write the case up anyway as we think it is a significant one and worthy of consideration, even if it does not match the unknown reporting criteria of the Reporting Committee.

Guidance on awards of costs against the Home Office

Sitting together, President Clements of the First-tier and then-President McCloskey of the Upper Tribunal (since replaced by President Lane) heard linked appeals in Awuah (No 2) (8 December 2017), a follow up to the previous related case of Awuah [2017] UKFTT 555 (IAC). In the earlier case the tribunal found that wasted costs could not be awarded against Home Office presenting officers for very poor conduct of litigation but could be awarded against representatives of appellants. The inequality of sanctions created by that decision is considerably mitigated by the newer decision.

In short, the Presidents outline circumstances where it might be appropriate for an immigration judge to award costs against the Home Office. These include:

• Defending an appeal which is, objectively assessed, irresistible or obviously meritorious and
• Where the Home Office fails to undertake an initial assessment of the viability of defending an appeal within a reasonable time of it being lodged, normally within six weeks, or
• Where the Home Office fails to reassess the merits of an appeal following material developments such as the service of important new evidence

Unreasonable costs can be awarded for limited periods or stages of the case. For example, if a party lodges evidence which is effectively determinative of an appeal, such as DNA evidence where the issue is parentage, the costs up to the lodging of that evidence might not be awarded, but the costs incurred after that evidence was lodged (perhaps also allowing for a reasonable period to assess the evidence) might be awarded. It is unlikely to be reasonable to defend an appeal where solid DNA evidence from a reputable laboratory has been served, after all.

On that note, it is instructive to look at each of the cases decided as potential precedents.

Awuah and section 55

The award of costs in the first of the appeals considered is the most obviously controversial. President McCloskey doubles down on his earlier determination in JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC). It concerns the best interests of children and reminds us that there are two statutory duties imposed on the Secretary of State by section 55 of the Borders, Immigration and Asylum Act 2009:

1. To have regard to the need to safeguard and promote the welfare of children and
2. To have regard to the Secretary of State’s own statutory policy, Every Child Matters (2009).

These two duties are generally ignored or at best given lip service by Home Office civil servants and, frankly, most immigration judges. This is largely because little usually comes of these “have regard” duties. Usually a paragraph in a decision or determination says regard has been had and that is that.

In Awuah, there was no such paragraph included in the decision letter. Most judges would barely notice the presence or absence of such a paragraph and would get on with their duty to decide the appeal for themselves. It is then a little surprising to see the Presidents decide that the absence of this standard but generally inconsequential paragraph was so critical:

On this ground alone the Secretary of State’s prospects of successfully defending the appeal were negligible… The resulting incurable frailty of the Secretary of State’s case should have been apparent to the reasonably competent civil servant upon first consideration of the appeal… The conclusion that the Secretary of State acted unreasonably in defending the appeal follows inexorably.

Furthermore, the logic of this conclusion “embraces the entirety of the lifetime of the appeal”. For good measure, the tribunal comments that the lip service paid to the first of the duties did not amount to “proper assessment.” The full legal costs claimed of £1,800 were therefore awarded.

Logically, the same faults are apparent in almost all human rights decisions made by the Home Office concerning children. This is recognised at paragraph 55:

It being the consistent experience of this Tribunal and, indeed, the Judges of both Chambers that the Secretary of State’s decision letters suffer routinely from the legal frailties diagnosed above.

Personally, I feel rather torn about the message to be taken away here. Proper, meaningful and reasoned consideration of the best interests of children is vital. I would like to see more of it by judges, not less. In this case the judge noted the failures by the Home Office and then seems to have gotten on with the job himself, as was right and proper, and went on to allow the appeal.

Rather than evaluating the strength of the case, though, the tribunal here obsesses on the missing standard paragraph. If anything, this approach seems more likely to encourage judges to allow appeals on a legal technicality rather than dealing with the substance of the case so that the Home Office can merely re-refuse in the same case with better and more complete reasons. That is a total waste of everyone’s time and the cause of unconscionable delay in the determination of a child’s case.

Momoh and exceptional circumstances

The facts of Momoh were unusual. A girl from Sierra Leone had entered the UK aged 12 in 2002. She had applied for permission to stay but the Home Office sat on her case for over ten years and then granted a short period of leave. The girl tried made a further application to stay but was destitute and could not afford the high application fee. She had to ask for a fee waiver. It took the Home Office a further year to decide that issue. While the girl had been eligible for leave when she first tried to appeal, she was too old by the time the fee waiver decision was made in her favour. She also had a young child of her own by this time.

The tribunal deciding the appeal was not impressed with the Home Office:

We are entirely satisfied that in defending the appeal which arose from an unfair decision and without advancing any meritorious reasons for doing so, the Respondent has demonstrated a prima facie case of having acted unreasonably.

According, the tribunal was minded to make an award of costs against the Home Office. The Presidential panel agrees:

The Secretary of State’s defence was truly hopeless, being advanced in the teeth of an unanswerable appeal. The hypothetical reasonably competent civil servant should have realised this at the earliest stage, namely upon receipt of the appeal. This, in our judgement, is a plain and obvious case of unreasonable conduct in defending an appeal.

The full costs of the appeal from its inception were therefore to be awarded.

SI and indemnity costs

It is rather hard to tell what happened in the case of SI. It was an asylum claim which was refused by the Home Office but which succeeded on appeal. The Presidents note that the evidence evolved during the lifetime of the appeal, the oral evidence of the appellant affected the end result and the judge was not especially critical of the Home Office. The appellant applied for costs on the basis that the Home Office had failed “to properly engage with the country and expert evidence assembled” The Home Office decided not to contest the application.

The amount of costs claimed was £25,840. A LOT of work had gone into the preparation and presentation of the appeal.

The tribunal searches for and recites the principles governing the award of costs on an indemnity basis, where the costs claimed do not have to be proportionate and the onus lies on the resisting party to prove claimed costs were unnecessary. Something over and above unreasonable conduct is required, but not so much as conduct that is vexatious, capricious or an abuse of process.

In this case, costs on the standard basis are awarded from seven days following receipt by the Secretary of State of what seems to have been highly significant evidence. Detailed assessment would follow, unusually, in the (likely) absence of agreement on costs.

TN and late withdrawal of appeal

This case turned on DNA evidence. The sole issue was whether the claimed mother of a child was truly the mother. It rather looks like the issue should not have been raised by the Home Office in the first place but once it was raised DNA evidence proving the relationship was duly procured.

The appellant waited 18 months for the appeal hearing and on the eve of the hearing the presenting officer withdrew the indefensible decision. The hearing therefore never took place and the appellant was granted indefinite leave to remain.

Again, the Presidents are unimpressed by the conduct of the Home Office in this case. It is described as “one of the starkest cases” and “truly irresistible” and the conduct of the Home Office as “manifestly and disturbingly inept” and “truly hopeless”. The Home Office was presented with multiple opportunities to reconsider but refused or failed to do so. As the tribunal points out

Meanwhile the Appellant was exposed to all of the anxiety and uncertainty inevitably arising in cases of this kind.

As well as legal costs, it might be added.

The appellant duly sought recovery of her costs and the application for costs was not resisted by the Home Office in principle. The amount of costs, £2,287.50, was disputed, however.

The tribunal awards costs on an indemnity basis for the full lifetime of the appeal to be summarily assessed.

A turning point in costs decisions

The determination in Awuah (No 2) could have marked a turning point in the willingness of the immigration tribunal to hold the Home Office to account for the very poor conduct of litigation of which it has long been guilty. Being as the Reporting Committee has decided not to report it, the turning point looks more like a “continue straight on” sign.

It remains to be seen whether individual judges will be willing to think more deeply about the possibility of awarding costs against the Home Office. The best outcome would be that this would improve the way that appeals are handled at the Home Office. If not, though, at least some litigants would in future be able to recover the costs of their appeals.

Claimant representatives should also beware. The willingness of the tribunal to award costs for unreasonable behaviour would be a sword with two edges.