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New tribunal procedure rules from 20 October 2014?

New tribunal procedure rules from 20 October 2014?

At paragraph 4(b) of the newly laid Tribunal Procedure (Amendment No. 3) Rules 2014 is a reference to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. These latter rules do not exist yet. As paragraph 4(b) of the amendment rules commences on 20 October 2014, can we therefore expect entirely new rules to come into effect on that date? And will, as has been rumoured, the changes to appeal rights also take effect at the same time that the new rules commence?

A further amendment to the Upper Tribunal rules is also made to force the Upper Tribunal to send copies of out of out of time decisions to the Home Office rather than appellants in asylum cases. See the new rule 22A set out at paragraph 10 of the amendment rules, also commencing 20 October 2014.

The draft version of the new First-tier rules can be found here. The most exciting bit, if it survived the consultation, is rule 9(2):

The Tribunal may otherwise make an order in respect of costs only—

(a)  under section 29(4) of the 2007 Act (wasted costs) and costs incurred in applying for such costs; or

(b)  if a person has acted unreasonably in bringing, defending or conducting proceedings.

Costs cannot currently be awarded in any circumstances, other than to cover the cost of the appeal fee, so this would represent a HUGE change in litigation risk and culture in the immigration tribunal.

Another interesting change is at rule 17, where it would no longer automatically be the case that withdrawal of the underlying decision by the Home Office will always terminate the appeal. The draft new rules provide a discretion to continue with the appeal.

Watch this space for further news.

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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