On 31 July 2018, the President of the First-tier Tribunal published a new Presidential Guidance Note setting out when the Home Office may be required to reimburse successful Appellants for their legal costs.  This firm played a key role in helping develop this guidance.  We hope it may eventually encourage the Home Office to make and defend fewer poor and unfair decisions, and in the meantime provide some compensation to migrants and their families when they do.

The Tribunal’s power to award costs when one party behaves unreasonably

When the Home Office wrongly refuses a migrant leave to enter or remain in the United Kingdom, the consequences for the individual and their family can be devastating.  At the very least, they face months of stress and anxiety.  In many cases, families are divided, and individuals face eviction, unemployment or denial of necessary medical care.  In addition, forcing the Home Office to acknowledge and correct their mistake almost always requires specialised legal advice at a time when the migrant and their family can least afford it.

In most other kinds of litigation, the party who wins is normally entitled to be reimbursed for their reasonable legal costs by the other side.  In appeals to the Immigration and Asylum Tribunal, however, costs can only be awarded when one party or their representative has behaved “unreasonably”.

The key question is: what does “unreasonable” mean?  Many migrants, their families and their legal representatives will have had the experience of receiving deeply unfair or simply factually or legally incorrect refusal decisions. Is it unreasonable for the Home Office to make decisions that are clearly wrong?  Is it unreasonable for them to defend those decision on appeal?

The test cases of Awuah and Others

In June 2017, a joint presidential panel of the presidents of the First-Tier and Upper Tribunals (Immigration and Asylum Chamber) selected four test cases in which the Appellants had won their appeals and then applied for an order that the Home Office pay their legal costs.  The Presidential Panel listed the appeals to be heard jointly and invited the Appellants to make submissions not only about why they should be reimbursed for their own legal costs, but also about the more general principles that Immigration Judges should apply when deciding future costs applications.  I represented two of the four appellants in the costs proceedings, TN and SJ (TN had been represented by Amy Bennett, now of Teacher Stern Solicitors, with regard to the substantive appeal).  The other two, Awuah and Momoh, were represented by Paul Keeley of Sutovic and Hartigan and Kola Akomolede of Nathan Aaron Solicitors, respectively.  The Appellants instructed Rebecca Chapman and Helen Foot of Garden Court Chambers.

The Joint Presidential Panel’s decisions in these appeals have now been incorporated into an official Presidential Guidance Note for Tribunal Judges, published on the Tribunal’s website.

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.

Who should costs orders be made against?

The guidance has two parts, reflecting the two different hearings held in the test cases.  The first part considers whether an application for costs could be made against individual representatives of the Home Office (Home Office Presenting Officers), or only against the Home Office as a department.  The decision of the Presidential panel was that it was inappropriate to make an Order against an individual HOPO.  Although this issue was naturally of great importance to HOPOs, it was of less significance for Appellants. If a HOPO has acted unreasonably in the course of an appeal, the important thing for Appellants is that there is some sanction to discourage such conduct in future and that they are compensated for any additional legal expenses they incur as a result.  Whether that sanction and compensation technically takes the form of an application for costs against the individual HOPO or against the Home Office more generally may make little practical difference.

When is it unreasonable for the Home Office to defend a wrong decision?

The second part of the guidance considers the wider question of the factors a Judge should consider when deciding if conduct has been unreasonable enough to justify an award of costs.  It briefly addresses issues such as the period the costs award might cover, the latitude to be afforded to unrepresented litigants, and the need for Judges to give reasons for their decisions.

The most significant part of the guidance sets out when it is unreasonable for the Home Office to defend an appeal at all.  The Home Office’s published policy is to refuse to reconsider a decision, no matter how flawed, if there is a right of appeal to the Tribunal.  During the appeal proceedings, Home Office practice has been not to consider the merits of their refusal decision until, at the very earliest, 24 to 48 hours before the full hearing, when the is file assigned to a Home Office Presenting Officer to prepare for the hearing.  In some cases, it is only at this point that a conscientious HOPO would recognise that the decision was simply wrong and could not be defended – although even in many such cases, individual HOPOs were unable to get permission to withdraw the decision prior to the hearing and had to appear in court to defend what they knew was an indefensible decision.  In cases where the Home Office did not send a representative to court, or where they instructed outside Counsel, there was simply no opportunity for the Home Office to withdraw even those most egregiously incorrect decisions.

The decision of the Presidential Panel on this issue was that this behaviour was unlawful.  The new Presidential Guidance makes it clear that it is unreasonable and may be grounds for an Appellant to be awarded their costs.  The guidance sets out the following general principles:

1.   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.”

2.   The Home Office should assess every refusal decision within six weeks of being notified that the appeal has been lodged. If the appeal is obviously meritorious, it is unreasonable for the Home Office not to make appropriate concessions or even withdraw the appeal at that point.

3.   The Home Office should assess the decision again whenever there is any significant development in the law or the evidence. This means that Appellants whose applications may have been refused because of inadequate or missing evidence have a right to expect that the Home Office will review the refusal decision and withdraw it if appropriate after new evidence has been served.  This could be shortly before the hearing, but it could be many months earlier.

4.   These assessments must be carried out by a “reasonably competent civil servant”, presumed to be “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.” This may give some encouragement to the many Home Office employees who work hard to do the right thing, but sometimes without the training or support they need.  It also means that Appellants do have the right to expect that refusal decisions will be reviewed carefully, fairly, and in accordance with the law and the evidence, which has not always been the case in the past.

This guidance is essential reading for anyone who feels that their application to the Home Office has been unfairly refused.  As long as they have a right of appeal, they can now point to this guidance and urge the Home Office to reconsider the decisions that are clearly wrong, even long before the hearing.

If the Home Office fails to respond, maintains the refusal decision for inadequate reasons, or only withdraws the decision at a very late stage, the Appellant should consider applying to the Tribunal for an order that the Home Office pay their costs in the appeal.

The full case on which the guidance is based is unreported, but Appellants can nonetheless apply to the Tribunal to be allowed to rely on it.  It contains helpful discussions of the reasoning behind the principles set out above, as well as applying these principles to the facts of the four individual cases.  It can be accessed and downloaded here.

How is a costs application made?

Applications for costs must be made to the Tribunal that heard the appeal and served on the Home Office.  They must be made within 28 days of when an appeal is concluded.  This could be within 28 days of when the Tribunal decides that the appeal should be treated as withdrawn (because the Home Office has withdrawn its refusal decision), or 28 days after the decision allowing the appeal is sent to the Appellant.  There is no specific form or fee for this application.  Because the law on when Appellants should be awarded their costs is new and still developing, it may be advisable for Appellants to seek legal advice and assistance before making a costs application.

On 21 June 2018, the Home Office published a Statement of Intent, which gives more details regarding the status of EU nationals and their family members following the Brexit referendum. The Statement of Intent is not yet law, but it is unlikely things will change significantly between now and then.

From later this year, EU citizens and their family members living in the UK will be able to start applying for UK immigration status through the new EU Settlement Scheme.

Who can apply under the Scheme?

EU nationals and their family members who arrived in the UK before 31 December 2020 will be protected and allowed to continue living in the UK, working, accessing public funds, healthcare and pension, as they are currently entitled to.

Family members of EU nationals who are living overseas on 31 December 2020, but where the relationship existed before 31 December 2020, will be allowed to join their EU citizen resident in the UK even after 31 December 2020. Children born after 31 December 2020 of EU citizens living in the UK before then will also be protected.

The rights of citizens of Norway, Iceland, Liechtenstein and Switzerland are currently being negotiated, but the British government’s intention is that the settlement scheme will be open to them too.

Irish nationals will not need to apply under the new Scheme. Their non-Irish family members will need to.

How will I apply and what will the Home Office check for status to be granted?

The application will be made online, although the Home Office is looking at whether some applicants should be allowed to apply by completing a paper form. The government will also provide an assisted digital service for those who need support to make an online application.

The Home Office will check three things:

1. Proof of identity

Applicants will need to provide evidence of their identity, which they can do by submitting their passport details or, for EU citizens, their national ID, via an app. Those who do not have a biometric identity document will not be able to use the app, and will need to send the original document via post. This will be returned to them as soon as possible.

Applicants will also need to provide a passport-size photograph. EU nationals can upload it online. Non-EU nationals who have a biometric Residence Permit issued under current EU law will also be able to upload their photo online. Other non-EU nationals will need to attend an application centre to give their fingerprints and a photograph.

2. Confirmation of residence in the UK

Applicants will need to have been living in the UK before 31 December 2020. Applicants will not initially be asked to submit evidence of residence, and the Home Office will carry out their own checks through HMRC and DWP. Where HMRC and DWP do not hold evidence confirming the applicant’s residence, then applicants will have an opportunity to upload, online, evidence of residence, such as bank statements, letters from employers, P60s etc. A full list of suggested evidence will be published by the Home Office when the scheme is in force. A draft version of this list was included in the Statement of Intent as Annex A.

3. Criminality

Applicants will need to self-declare their criminal convictions. The Home Office will also carry out their own checks. Serious criminal convictions might lead to a refusal.

Family members will also need to show that they are related to the EU national.

How much will it cost?

Subject to approval by Parliament, the application will cost:

• £32.50 for children under the age of 16
• £0 for
  • those who already have valid indefinite leave to remain, and have not been absent for two consecutive years since obtaining it
  • those who already have a document certifying permanent residence, and have not been absent for more than five consecutive years or lost their right because a deportation order was made against them
  • those who have been granted pre-settled status and are applying for settled status after April 2019
  • children in local authority care
• £65 for all other applicants

What will I be given?

Generally, EU nationals and their family members who have lived in the UK for 5 years will be given settled status. There are some categories of people who can qualify for settled status before 5 years, including, provided certain conditions are met, those who have had to stop working due to retirement or incapacity, or the family members of deceased EU nationals.

Children of EU nationals who have been granted settled status will also be given settled status, even if they have not themselves lived in the UK for 5 years.

Those who have not yet lived in the UK for 5 years will be granted pre-settled status for a period of 5 years. Once they have reached 5 years residence, they will be able to switch to settled status.

If you are an EU national, your new status will be issued in digital format only. You will not be issued with a physical document.

If you are a non-EU national, and do not have a Biometric Residence Permit, then you will be issued with one.

When can I apply?

The new system is expected to start later this year, and will be fully open from 30 March 2019.

You will need to submit an application no later than 30 June 2021. If you apply after this date, you will become an overstayer.

How long will it take?

Although exact timeframes have not been published, the Home Office suggested that most applications should be decided in “a few days”. Less straightforward ones might take longer. In the future, the Home Office intends to publish current waiting times so that people will have an idea of how long the wait will be.

If you have questions about your rights, or would like to book an initial consultation for tailored, individual advice, please do not hesitate to contact us.

Those of you who follow our Twitter account will be aware that, over the past few weeks, we have been soliciting comments from other practitioners as to whether they, like us, have been experiencing difficulties in accessing accurate and full information about the varying procedures applicable with respect to entry clearance applications at different Visa Applications Centres (VACs) around the world. The Immigration Law Practitioners Association (ILPA) also encouraged our initiative and circulated our survey to its members.  We also put out our request for feedback on this issue from members of the Refugee Legal Group (RLG).

We are very grateful to the 75 organisations and individuals responding to our survey and would now like to share with you the results of that survey.  As you will see from the report most respondents expressed views consistent with our experience that, at present, it is indeed difficult to obtain accurate information regarding the varying procedures being implemented.

The report includes concrete examples and, further, makes suggestions for improvement.

We were very grateful to be included yesterday by ILPA in a meeting which they had arranged between ILPA representatives and senior UKVI officials with special responsibilities for entry clearance procedures.  The report had been circulated beforehand to participants in the meeting and we were further given the opportunity to present some background regarding our motivations and methodology in preparing the report at the meeting.

It was encouraging that, in reacting to the report, the representatives of UKVI acknowledged that the kinds of problems outlined in the report are in fact happening at present.  They stressed, however, that the entry clearance section of UKVI is in the middle of a transition period which is likely to continue until the end of this calendar year.

In particular, they are working towards a more uniform system of decision making, based largely in Sheffield, which will be working from scanned copies of original documentation.  They pointed out that, at present, even original documentation being sent to Sheffield directly by applicants and their representatives is being scanned prior to the consideration of applications and that they continue to receive scanned documentation from a large number of entry clearance posts.  They also have the ambition, in due course, to reduce the amount of original documentation which needs to be submitted for at least some applications by creating more direct links to obtain relevant information held by HMRC, applicants’ banks and their employers.

They indicated that, in the meantime, they would hope to address the issues raised in our report by seeking to ensure that reliable information is contained about the entry clearance procedures of different VACs on the gov.uk website.  You will see that this was in fact a major recommendation of our report.  They indicated that, according to their own policy, this website should be the definitive repository of information about entry clearance procedures and not the websites of individual VACs.  They also made clear the individual VACs ought not to be setting their own unique individual procedural requirements (e.g., about the number of pages which may be scanned in an individual application) but that such policy decisions are a matter for UKVI.

They suggested that the collection of information about individual VACs’ procedures on the gov.uk website would not happen immediately but should be seen as the ‘medium term solution’ to be carried out once they felt that they had negotiated the challenges they are facing in their current transition period.

They also indicated that, in their view, a ‘longer term solution’ to the problems raised would be the fact that, in due course, they are aiming to prescribe clearer and more consistent procedures throughout the system so that the procedures to be followed will be more consistent at all entry clearance posts.

You should also be aware that we have also provided to the UKVI officials a comprehensive list of all the problems and issues you raised with respect to particular entry clearance posts.  They indicated that, where it seemed appropriate, they would be raising with the individual entry clearance posts problems which have been identified.

We are very grateful to everyone who participated in the survey which we conducted.  This made it possible for us to prepare a much more convincing and authoritative report which, we hope, may have some small impact in effectuating positive change in the system.

On Monday 21 May, we will once again be taking part in the London Legal Support Trust’s annual 10km Legal Walk, raising money for legal advice charities.

The advice centres supported by the Walk help people including families facing homelessness, older people requiring community care, trafficked women and children, people with disabilities, refugees, people who are facing employment problems and those with mental health issues.

The need for these charities has grown in recent years because of significant cuts to legal aid. The funds we raise are therefore more important than ever.

We ask those who can to support our team and help to improve access to justice by donating online.

 

On Saturday 19 May, we will be running a free advice session for Europeans and their family members at the Waterloo Action Centre.

The aim of the event is to give an overview of the rights of European nationals in the UK and to outline steps they may wish to take to prepare for Brexit.

We hope that those attending will come away with the knowledge and confidence to make an application if they need to.

In preparation for the meeting, we have prepared a self-help guide for those looking to understand their current rights and how these might be affected by the UK’s exit from the EU. The guide also includes information and guidance about how to make a successful application.

You can download the guide by clicking here.

There are a limited number of spaces still available to attend the event itself. We ask that those wishing to attend the meeting register their interest via Eventbrite.