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Costs in cases of new “supplementary” decisions

Costs in cases of new “supplementary” decisions

A judicial review of unlawful reasons given by the Home Office will, as inevitably as night follows day, be followed by “supplementary” reasons letters in the event of a legal challenge. This is a hugely frustrating and abusive practice by the Home Office. Essentially, rubbish and peremptory reasons are given in an initial decision by a barely trained bottom grade case worker but if the recipient of the decision has the wherewithal to challenge the decision it will be supplemented by additional reasons drafted by high grade Government Legal Service lawyers or barristers, usually just before a hearing. These “supplementary” decisions in effect concede that the original decision was unlawful but, vexingly, often add much better¬†reasons.

In R (on the application of Marie) v Secretary of State for the Home Department IJR [2015] UKUT 464 (IAC) Upper Tribunal Judge Coker addresses this issue, finding that the new reasons letters cannot rectify faults in the original decision but that the new letters do go to remedy. She finds that the original decision was unlawful but declines to quash it but also goes on to award the claimant her costs up to the point the new decisions were served and for a reasonable time afterwards.

It must surely be right that at the very least the claimant is awarded their costs, although I recently had a case where we were denied even that consolation in exactly the same scenario.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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