The Right to Recover Immigration Appeal Costs

Until recently the First-tier Tribunal was unable to award costs. Following on from 20th October 2014, the Immigration Tribunal Procedure Rules 2014 came into operation, enabling the Tribunal to exercise its power of Rule 9 (on its own; it doesn’t  require to make an application) to grant Immigration Appeal Costs. By the statutory definition, these are the costs incurred by a party as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative OR costs incurred by a party which the Tribunal considers it unreasonable to expect that party to pay. In addition to the Tribunal Procedure Rules 2014, the Cancino judgement has provided further guidance on the meaning of unreasonable conduct and has provided emphasis on the jurisdiction to make a wasted costs order.

What is the Immigration Appeal Costs?

Following the introduction of the Immigration Tribunal Procedure Rules in October 2014 and the subsequent Cancino judgement, Appellants may now be able to make an application to recover their Immigration Appeal Costs.

Procedure for applying for Immigration Appeal Costs

The mechanisms for applying for Immigration Appeal Costs is either an oral application at a hearing or a written application has to be made. An Immigration Appeal Costs application can be made at any time during the proceedings but must be within 28 days after the Tribunal has sent its decision notice. An order for Immigration Appeal Costs against the “paying person” will not be made without first giving that person an opportunity to make representations.

In cases, where the First-tier Tribunal is contemplating awarding Immigration Appeal Costs, being either a fee award which is the most common award (limited to the appeal fee only) and/or an award of wasted costs under Rule 9 the Immigration Tribunal Procedure Rules, the Judge must exercise discretion; accordingly, attempts to introduce comparisons with other cases will be discouraged.

The qualifying condition for an Immigration Appeal Costs application is an unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such representative. In short, the condition is that a person has acted unreasonably in bringing, defending or conducting proceedings.

Immigration Appeal Costs Awarding Powers

Wasted costs

The most recent case of Cancino (costs – First-tier Tribunal – new powers) [2015] emphasises, the jurisdiction to make a wasted costs order is directed to the representatives of a party:

  1.  Has the legal representative of whom the complaint is made acted improperly, unreasonably or negligently?
  2.  If so, did such conduct cause the applicant to incur unnecessary costs?
  3. If so, is it in all the circumstances of the case just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs?

There must be a causal link between the conduct complained of and the wasted costs claimed.

Unreasonable costs

This point emphasises an order for unreasonable costs made against a party.

The questions to be asked, according to the Cancino judgement of  are:

  1.  Has the appellant acted unreasonably in bringing an appeal?
  2.  Has the appellant acted unreasonably in his conduct of the appeal?
  3. Has the respondent acted unreasonably in defending the appeal? and
  4. Has the respondent acted unreasonably in conducting its defence of the appeal?

The Tribunal will embrace the whole of the proceedings period, which begins on the date when an appeal comes into existence and ends when the appeal is finally determined in the Tribunal by question, as well as all the aspects of the Appellant’s conduct in pursuing the appeal and all aspects of the Respondent’s conduct in defending it. It is worth noting that the exercise of the power to make an Immigration Appeal Costs order under the Rule 9 of the 2014 Rules is reserved for the clearest cases.

For the full judgement on Cancino (Immigration Appeal Costs) and a full copy of the Immigration Tribunal Procedural Rules, please find them here: Cancino (costs – First-tier Tribunal – new powers) Immigration Appeal Costs LEXVISA Solicitors and Barristers and Immigration Appeal Costs Immigration Tribunal Procedure Rules LEXVISA Solicitors and Barristers.

Quantum Assessment of Immigration Appeal Costs

Where the Applicant is able to demonstrate a measurable amount of Immigration Appeal Costs have been incurred, as a result of the offending act or omission of the party or representative concerned, the whole amount should be awarded, although there may be cases where the order will specify a lesser sum of 50 to 70 percent.

There are three possible measurements of the Immigration Appeal Costs to be paid:

(a) summary assessment by the Tribunal;

(b) agreement; and

(c) a detailed assessment, which involves applying to the County Court.

A Summary assessment may be preferable for seeking Immigration Appeal Costs as it is a far less involved than attempting to reach an agreement or making submissions for a detailed assessment. However, this will require a prepared schedule of immigration appeal costs incurred and a notice period to the “paying person” to allow reasonable time to make representations.

The Tribunal’s ruling must identify clearly the nature, timing and duration of the offending conduct, as well as the parties, must help the Tribunal to further the overriding objective and co-operate with the Tribunal generally.

The First-tier Tribunal may be expected to make a fee award in favor of a successful appellant.

Using Legal Representation to apply for Immigration Appeal Costs

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit an application for you.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.

Successfully Apply for Immigration Appeal Costs

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.

Our offices are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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