In a highly significant development, the President of the First-tier Tribunal has issued a new guidance note on how migrants who win an appeal against the Home Office can seek legal costs from the department. The guidance envisages costs awards for “unreasonable conduct” where the Home Office contests an appeal “which is, objectively assessed, irresistible or obviously meritorious” and demands that officials carry out an initial assessment of whether an appeal should be defended within six weeks of it being lodged.
The guidance in full is essential reading but Elizabeth Ruddick has written an excellent summary on the Wesley Gryk website. She says that:
The guidance does not establish a general principle that Appellants should always be compensated for their legal costs if they win an appeal. What it does do is set out unambiguously that the Home Office should concede appeals it is clearly going to lose, and do so at an early stage. Given that the Home Office now loses 50% of appeals that go to a full hearing, this guidance has the potential to benefit a large number of Appellants and their families.
The guidance note is based on the principles outlined in three cases, two reported officially and one unreported. The reported cases are Awuah and others (Wasted Costs Orders – HOPOs – Tribunal Powers : Ghana) (Rev 1)  UKFTT 555 (IAC) and Cancino (costs – First-tier Tribunal – new powers)  UKFTT 59 (IAC). The unreported case is Awuah and Others (No. 2).
The principles taken from Awuah (No. 2) are the most helpful for appellants. Extracts from that judgment replicated verbatim in the guidance include the following:
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… It is not contested that there is a duty on the Secretary of State to assess the viability of defending an appeal following notification… We consider it reasonable to expect that in all cases this exercise be normally be performed within six weeks of receipt of an appeal.
Awuah (No. 2) was a joint effort by both Presidents of the immigration and asylum chambers that, for reasons that baffled us at the time, was not deemed worth reporting (or even uploading onto the tribunal database of unreported decisions). Eventually we reported it on Free Movement anyway: Colin’s analysis is here and the decision itself here.
Ms Ruddick tells us that she has already made several applications for costs in which she has been permitted to reply on Awuah (No. 2) despite it being unreported. This is done by including in written submissions an application under Practice Direction 11 to cite an unreported determination and appending the full text. Now that there is Presidential guidance incorporating large chunks of Awuah (No. 2), it is hard to see many tribunal judges refusing to permit reliance on it.