From 20 October 2014 Immigration tribunals have the power to make an award of costs against either party in immigration appeals proceedings.
The new powers derive from rule 9(2) of the Tribunal Procedure (First Tier Tribunals) (Immigration and Asylum Chamber) Rules 2014 enacted under s. 29 of the Tribunals, Courts and Enforcement Act 2007.
Proceedings in immigration tribunals, as in most specialist tribunals, do not lead to costs shifting, or an order that the costs of the winning party be paid by the other side. In other words, legal costs traditionally could not be recovered in immigration tribunals.
The new rule for the first time allows recovery of costs in certain limited circumstances in immigration appeal proceedings.
From 20 October 2014 a costs order can be made against either party if it has acted unreasonably in bringing, defending or conducting proceedings (Rule 9(2)(b)).
There is no presumption that the losing party acts unreasonably in bringing or defending proceedings. Yet, there is hope that the appellants challenging at least the most glaringly unreasonable decisions of the authorities may be able to recover the costs of legal representation.
An application for costs can be made at any time during the proceedings or within 28 days from the date on which the Tribunal sends a notice of its decision or a notice that the appeal has been withdrawn.
Also, an order to pay “wasted costs” may now be made against a representative of either side similarly to wasted costs in civil and criminal proceedings in higher courts.
The definition of “wasted costs” can be found in s.51(7) of the Senior Courts Act 1981: “‘wasted costs’ means any costs incurred by a party – (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.”
Wasted costs orders can only be made against a representative, not against a party to the proceedings. Thus, in the context of the First Tier tribunal I would assume that Home Office Presenting Officers (HOPOs) will be generally exempt (being employees rather than representatives of the party to the proceedings). However, legal representatives of the appellants may need to acquaint themselves with the concept.
Upper Tribunal (Immigration and Asylum Chamber) will have similar powers by force of Rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008. However, this power will not be of practical implication as of Monday, as the Upper Tribunal has the power to award costs only in appeals where the lower tribunal had been vested with the same powers, i.e. disposed of the case on or after 20 October 2014.