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Upper Tribunal can make wasted costs orders for appeals under 2005 rules

Upper Tribunal can make wasted costs orders for appeals under 2005 rules

Section 29(4) of the Tribunals, Courts and Enforcement Act 2007 results in the Upper Tribunal having powers in relation to the making of wasted costs orders (as defined in section 29(5)) which are not subject to the limitations in s.29(3) or r.10 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

This decision contrasts with Cancino where in effect the First-tier Tribunal held that it could interpret the provisions either way and elected not to take on jurisdiction to award costs in appeals commenced under the old rules. Notably, the flip-flopping Home Office position has been adopted by the tribunal in both these costs cases.

Wasted costs were not actually awarded; that issue will be decided at a later hearing.

Source: MSM & Ors (wasted costs, effect of s.29(4)) [2016] UKUT 62 (IAC) (15 January 2016)

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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