The President of the FTT (IAC) has recently published a helpful Presidential Guidance Note entitled ‘Further guidance on wasted costs and unreasonable costs and on the correct approach to applications for costs made in proceedings before the First-tier Tribunal (IAC)’
The guidance draws heavily upon the unreported decision in Awuah and Others (2) which was presided over by the President of the the UT (IAC) and the President of the FTT (IAC).
In respect of ‘unreasonable conduct’ the guidance sets out the following principles:
2.7. Guidance derived from caselaw or established principle
(note the objective standard to be applied to the SSHD’s employees at (v )below):
(i) The conduct under scrutiny is to be adjudged objectively and the Tribunal is the arbiter of unreasonableness.
(ii) The fundamental enquiry is whether there is a reasonable explanation for the conduct under scrutiny.
(iii) Unreasonable conduct includes that which is vexatious, designed to harass the other party rather than advance the defence and ultimate outcome of the proceedings.
(iv) While the test of unreasonableness is objective, its application will not be divorced from the circumstances of the individual case and those of the person or party in question.
(v) The objective standard to be applied to the Secretary of State’s case workers, HOPOs and others is that of the hypothetical reasonably competent civil servant.
(vi) Thus it will be appropriate to presume – a rebuttable presumption – that HOPOs are 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.
(vii) The measurement of this standard in the individual case will take into account all that is recorded in [8] of our principal judgment (Awuah and Others).
(viii) In every case the Secretary of State must undertake an initial assessment of the viability of defending an appeal within a reasonable time following its lodgement. Where this does not result in a concession or withdrawal or something comparable, this duty, which is of a continuing nature, must be discharged afresh subsequently. (see our elaboration at [24] – [31] infra).
(ix) 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. (Awuah (2), unreported, [9])
Of particular interest is the duty upon the SSHD to undertake an assessment of the viability of defending the proceedings. §2.13 states that this is an ongoing duty:
2.13.The SSHD will normally be expected to conduct subsequent reassessment(s) when any material development occurs:
... subsequent reassessment on the part of the Secretary of State will normally be expected. While eschewing any attempt to formulate prescriptive guidance, we would observe that the Secretary of State’s duty of reassessment will arise when any material development occurs. Material developments include (inexhaustively) the completion of the Appellant’s evidence (by whatever means), the outcome and outworkings of judicial case management directions, the impact of any further decisions of the Secretary of State (for example affecting a family member), any relevant changes in or development of the law and any relevant changes in or development of the Secretary of State’s policy, whether expressed in the Immigration Rules or otherwise. While the above list ought to encompass most eventualities in the real world of Tribunal litigation, we make clear that it is not designed to be exhaustive in nature. (Awuah (2), unreported, [24])
Immigration practitioners should familiarise themselves with this important guidance which is helpful. Hopefully the guidance will lead to better decision making by the SSHD and poor decisions being withdrawn in advance of appeal hearings. Furthermore the guidance should lead to Judges being more willing to make an order for costs in an appropriate case where unreasonable conduct can be established.
The procedural requirements in making a costs application are set out in Rule 9 of the Procedure Rules.