On 16 October 2014 the Minister of State for Immigration and Security, James Brokenshire MP, laid a written ministerial statement in the House of Commons and announced the reforms that have today come into force as follows:
“The reforms to the immigration appeals system in the Immigration Act 2014 are being phased in from 20 October. These provisions contain important measures to make it easier to deport foreign criminals and build upon the significant reforms we have already made. In July we introduced new powers to stop criminals using family life arguments to delay their deportation. This has been successful, enabling the Home Office to deport over 100 criminals since July pending any appeal. From Monday criminals will also no longer be able to appeal against a decision that their deportation is conducive to the public good. This is the most significant change to deportation appeals since 1971. Criminals will be deported and will not be able to appeal beforehand unless they face a real risk of serious irreversible harm. For those that do have an appeal right, they will only be able to appeal once. From Monday the new Act will also reform the appeals system for students. For those with meritorious appeals the old system was a costly and time-consuming way to correct simple case work errors which could be resolved by a request to the Home Office to review the decision. New immigration rules provide a system of administrative review through which case work errors will be corrected within 28 days rather than 12 weeks, supporting our policy of attracting immigrants who benefit the United Kingdom’s businesses and universities. For non-compliant students the new appeals reforms, combined with the new single power of removal, will make removal quicker and more legally straightforward. On 3 September I announced that the West Midlands would be the location for the first phase of the implementation of new restrictions on illegal immigrants accessing rented housing. I have now made the order to bring into force the necessary powers in the Immigration Act to allow the scheme to start from 1 December. This will allow further secondary legislation to be laid before Parliament shortly.Further measures in the new Act are also being brought into force to limit the ability of immigration detainees to make repeat bail applications and to extend the powers of the Immigration Services Commissioner to combat rogue immigration advisers. Finally, powers are being brought into force to enable us in due course to lay before Parliament the secondary legislation needed to implement the NHS health surcharge and to implement the changes to the process for giving notice of marriage or civil partnership to combat sham marriages and civil partnerships. Reforms are also being made to strengthen the regime and further enhance security. Technical changes are being implemented across the Immigration Rules to tackle abuse while enhancing the United Kingdom’s status as an excellent place to do business. In particular, the Tier 1 (Investor) route is being reformed following recommendations from the Migration Advisory Committee. The minimum investment threshold will be raised from £1m to £2m. The government will also consult further on what sort of investment the route should encourage in order to deliver real economic benefits, and other improvements to the route. A consultation document will be published in due course”.
The Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 No. 2771 brings some of the changes into force today. Other provisions will come into effect in November 2104 and December 2014. Therefore several important changes affecting how and whether immigration appeals including bail applications are heard and decided by the Immigration Tribunal are incrementally coming into force piecemeal. Most of the changes originate directly from the Immigration Act 2014 however inevitably as can be seen for example from the recent introduction on 28 July 2014 of Section 19, “Article 8 of the ECHR: Public Interest Consideration” of the 2014 Act which inserted Section 117A to Part 5 of Act 2002, the Immigration Tribunal will have to apply some of the new changes when making decisions.
The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 No. 2604 (L. 31) came into force today. On 15 February 2010, the Immigration and Asylum Chambers were established in both tiers of the Unified Tribunals framework created by the Tribunals, Courts, and Enforcement Act 2007. The chambers replace the Asylum and Immigration Tribunal. The Upper Tribunal (Immigration and Asylum Chamber) is a superior court of record dealing with appeals against decisions made by the First-tier Tribunal( Immigration and Asylum Chamber) and certain judicial reviews, mainly in the immigration context. The 2014 Procedure Rules will apply to outstanding or future proceedings before the Immigration and Asylum Chamber of the First Tier Tribunal. Prior to 20 October 2014, The Asylum and Immigration Tribunal( Procedure) Rules 2005( S.1 2005) No. 230 governed the position and had been in force since 4 April 2005. The 2005 Rules were amended several times over the years and the last version had been in force from 19 December 2011.
The main changes introduced by the 2014 Procedure Rules are dealt with below.
RULE 2- Overriding Objective and parties’ obligation to co-operate with the Tribunal
In this regards the 2005 Procedure Rules simply provided as follows:
4. The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficinelty as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest”.
The newly introduced 2014 Rules set out in further detail that ;
“Overriding objective and parties’ obligation to co-operate with the Tribunal
2.—(1)The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it—
(a) exercises any power under these Rules; or(b) interprets any rule or practice direction.
(4) Parties must—
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally”.
Having regard to the new wider powers of the First Tier Tribunal to award costs in a more increased range of circumstances in light of the introduction in particular of Rule 9, it is not surprising that the new Rule provides in further detail the circumstances in which a case should be dealt with fairly and justly.
RULE 9 – Order of payment of costs and interest on costs
Prior to Rule 9 coming into force, the First Tier Tribunal had power in any case to make provision for a fee award and this new element for appeals came into effect in late 2011. On 19 December 2011, the First Tier- Tribunal( Immigration and Asylum Chamber) Fees order No. 2841 came into force requiring those who appeal to the First-Tier Tribunal to pay a fee. The fee is currently £140.00 per appellant submitting an appeal. By Rule 23A(2) of the Asylum and Immigration Tribunal( Procedure)Rules 2005(as amended by SI 2011 No. 2840) there was introduced a power in the Judge to direct the repayment of a fee in the case of an appellant whose appeal succeeds. Each case will turn on the exercise of a judicial discretion and guidelines were introduced to be considered by Judges when making the decisions.
Whereas only the Secretary of State was required to pay costs where an appeal was allowed, Rule 9 has however widened the category of persons and circumstances in which the First Tier Tribunal may make an order in respect of costs.
Rule 9 provides;
“Orders for payment of costs and interest on costs (or, in Scotland, expenses)
9.—(1) If the Tribunal allows an appeal, it may order a respondent to pay by way of costs to the appellant an amount no greater than—
(a) any fee paid under the Fees Order that has not been refunded; and
(b) any fee which the appellant is or may be liable to pay under that Order.
(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.
(3) The Tribunal may make an order under this rule on an application or on its own initiative.
(6) The Tribunal may not make an order for costs against a person (in this rule called the “paying person”) without first giving that person an opportunity to make representations……………”
The same power to make an order for costs applies also to the Upper Tribunal.
When Section 29 of the Tribunals, Courts and Enforcement Act 2007 was introduced, it was acknowledged that the powers of many tribunals to award costs were currently limited, either because they had no such powers, or because the scope of any power they had was limited. Section 29 of the 2007 Act grants the Tribunals the discretion to order costs and expenses in the same way as courts. It was not intended that these provisions would apply in all jurisdictions, rather that there would be flexibility as part of the creation of the new system to determine where a costs regime would be appropriate and whether there should be any limits to such a regime( for example, that costs should be awarded only against a party who has acted vexatious or unreasonably).
The meaning of wasted costs is contained with Rule 29 itself:
“29 Costs or expenses
(1) The costs of and incidental to—
(a) all proceedings in the First-tier Tribunal, and
(b) all proceedings in the Upper Tribunal, shall be in the discretion of the Tribunal in which the proceedings take place.
(2) The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.
(3) Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.
(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—
(a) disallow, or
(b) (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with Tribunal Procedure Rules.
(5) In subsection (4) “wasted costs” means any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.
(6) In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct the proceedings on his behalf…………..”
The Tribunal Procedure Committee in exercise of the power conferred by Sections 10(3), 16(9), 22 and 29(3) and (4) of, and Schedule 5 of the Tribunals, Courts and Enforcement Act 2007 made the Tribunal Procedure ( Upper Tribunal) Rules 2008(S.I 2008 No. 2698) which came into force on 3 November 2008. The 2008 Rules were amended several times however the current version is as it is in force on 20 October 2014
Rule 10 of the 2008 Rules provides:
RULE 10: Orders for costs
(3) In other proceedings, the Upper Tribunal may not make an order in respect of costs or expenses except—
(a) in judicial review proceedings;
(c) under section 29(4) of the 2007 Act (wasted costs) [and costs incurred in applying for such costs];
(d) if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings; …………….
(4) The Upper Tribunal may make an order for costs (or, in Scotland, expenses) on an
application or on its own initiative.…………….
(7) The Upper Tribunal may not make an order for costs or expenses against a person (the “paying person”) without first—
(a) giving that person an opportunity to make representations; and
(b) if the paying person is an individual and the order is to be made under paragraph (3)(a), (b) or (d), considering that person’s financial means. …………………………..”.
RULE 11- Calculating Time
11.—(1) An act required or permitted to be done on or by a particular day by these Rules, a practice direction or a direction must, unless otherwise directed, be done by midnight on that day.
(2) Subject to the Tribunal directing that this paragraph does not apply, if the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day”.
The 2014 Procedure Rules therefore as above also change the way the time limit to bring an appeal is calculated. The 2014 Regulations make consequential changes to avoid confusion in how these time limits apply.
RULE 19- Notice of appeal
“19.—(1) An appellant must start proceedings by providing a notice of appeal to the Tribunal.
(2) If the person is in the United Kingdom, the notice of appeal must be received not later than 14 days after they are sent the notice of the decision against which the appeal is brought.
(3) If the person is outside the United Kingdom, the notice of appeal must be received —
(a) not later than 28 days after their departure from the United Kingdom if the person—
(i) was in the United Kingdom when the decision against which they are appealing was made, and
(ii) may not appeal while they are in the United Kingdom by reason of a provision of the 2002 Act; or
(b) in any other case, not later than 28 days after they receive the notice of the decision.
(4) The notice of appeal must—
(a) set out the grounds of appeal;
(b) be signed and dated by the appellant or their representative;
(c) if the notice of appeal is signed by the appellant’s representative, the representative must certify in the notice of appeal that it has been completed in accordance with the appellant’s instructions;
(d) state whether the appellant requires an interpreter at any hearing and if so for which language and dialect;
(e) state whether the appellant intends to attend at any hearing; and
(f) state whether the appellant will be represented at any hearing.
(5) The appellant must provide with the notice of appeal—
(a) the notice of decision against which the appellant is appealing or if it is not practicable to include the notice of decision, the reasons why it is not practicable;
(b) any statement of reasons for that decision;
(c)any documents in support of the appellant’s case which have not been supplied to the respondent;
(d) an application for the Lord Chancellor to issue a certificate of fee satisfaction;
(e) any further information or documents required by an applicable practice direction.
(6) The Tribunal must send a copy of the notice of appeal and the accompanying documents or information provided by the appellant to the respondent.
(7) An appellant may, with the permission of the Tribunal, vary the grounds on which they rely in the notice of appeal”.
Under rule 7(1) of the 2005 Procedure Rules, the time limit to appeal by a person who was in the United Kingdom started when the decision against which he was appealing was served. Under rule 19(2) of the 2014 Procedure Rules the time limit to appeal by a person who is in the United Kingdom starts when the decision against which he is appealing was sent.
The changes as regards how bail applications and hearings are heard and decided are set out by the new 2014 Procedure Rules. The changes mainly come about following the provisions of Section 7 of the Immigration Act 2014 which states:
“7 Immigration bail: repeat applications and effect of removal directions
(1) Schedule 2 to the Immigration Act 1971 (administrative provisions as to control on entry etc) is amended as follows.
(2) In paragraph 22 (bail) at the end insert—
“(4) A person must not be released on bail in accordance with this
paragraph without the consent of the Secretary of State if—
(a) directions for the removal of the person from the United Kingdom are for the time being in force, and
(b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.”
(3) In paragraph 25—
(a) the existing paragraph is re-numbered as sub-paragraph (1);
(b) in that sub-paragraph, for “may” substitute “must”;
(c) after that sub-paragraph insert—
“(2) Tribunal Procedure Rules must secure that, where the First tier
Tribunal has decided not to release a person on bail under paragraph 22, the Tribunal is required to dismiss without a hearing any further application by the person for release on bail (whether under paragraph 22 or otherwise) that is made during the period of 28 days starting with the date of the Tribunal’s decision, unless the person demonstrates to the Tribunal that there has been a material change in circumstances.”
(4) In paragraph 29 (grant of bail pending appeal), in sub-paragraph (1), at the end
insert “(and paragraph 22 does not apply)”.
5) In paragraph 30 (restrictions on grant of bail pending appeal), in subparagraph
(a) after “if” insert “— (a)”;
(b) for “or the power to give such directions is for the time being exercisable” substitute “and
(C) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.”
(6) After paragraph 33, insert—
“33A(1) Tribunal Procedure Rules must make provision with respect to applications to the First-tier Tribunal under paragraphs 29 to 33 and matters arising out of such applications.
(2) Tribunal Procedure Rules must secure that, where the First-tier Tribunal has decided not to release a person on bail under paragraph 29, the Tribunal is required to dismiss without a hearing any further application by the person for release on bail (whether under paragraph 29 or otherwise) that is made during the period of 28 days
starting with the date of the Tribunal’s decision, unless the person demonstrates to the Tribunal that there has been a material change in circumstances.”
Only section 7(3), (4) and (6) are in force as of today.
Rule 38 of the 2005 Procedure Rules provided as follows:
“Applications for bail
“38.—(1) An application to be released on bail must be made by filing with the Tribunal an application notice in the appropriate prescribed form.
(2) The application notice must contain the following details—
(a) the applicant’s—
(i) full name;
(ii) date of birth; and
(iii) date of arrival in the United Kingdom;
(b) the address of the place where the applicant is detained;
(c) whether an appeal by the applicant to the Tribunal is pending;
(d) the address where the applicant will reside if his application for bail is granted, or, if he is unable to give such an address, the reason why an address is not given;
(e) where the applicant is aged 18 or over, whether he will, if required, agree as a condition of bail to co-operate with electronic monitoring under section 36 of the 2004 Act;
(f) the amount of the recognizance in which he will agree to be bound;
(g) the full names, addresses, occupations and dates of birth of any persons who have agreed to act as sureties for the applicant if bail is granted, and the amounts of the recognizances in which they will agree to be bound;
(h) the grounds on which the application is made and, where a previous application has been refused, full details of any change in circumstances which has occurred since the refusal…………”
The current 2014 Rule 38 states:
RULE 38 – Bail applications
“38.—(1) A bail application must be made by sending or delivering to the Tribunal an application notice containing the information specified below.
(2) A bail application must specify whether it is for—
(a) the bail party to be released on bail;
(b) variation of bail conditions;
(c) continuation of bail; or
(d) forfeiture of a recognizance.
(3) Subject to paragraph (4), a bail application must contain the following details—
(a) the bail party’s—
(i) full name;
(ii) date of birth; and
(iii) date of their most recent arrival in the United Kingdom;
(b) the address of any place where the bail party is detained;
(c) the address where the bail party will reside if the bail application is granted, or, if unable to give such an address, the reason why an address is not given;
(d) the amount of any recognizance in which the bail party is, or is proposed to be, bound;
(e) whether the bail party has a pending appeal to the Tribunal or any pending application for further appeal relating to such an appeal;
(f) the full name, address, date of birth and any occupation of any person who is acting or is proposed to act as a surety for the recognizance and the amount in which the surety is, or is proposed to be, bound;
(g) where the bail party is aged 18 or over, whether the bail party will, if required, agree as a condition of bail to co-operate with electronic monitoring under section 36 of the 2004 Act;
(h) the grounds on which the application is made and, where a previous application has been refused, when it was refused and details of any material change in circumstances since the refusal……”
It may appear at first sight as though there is no evident difference between the old and new Rule 38(h) however the new Rule makes it clear that as regards the refusal of the previous bail application, the date when it was refused must be provided. This requirement is obvious when having regard to the fact that the calculation of the relevant 28 days in the new Rule 39 below should begin to run after the date of the last refusal of bail. The new Rule 38(h) also makes clear that the change in circumstances since the last refusal of bail must be material.
Paragraph 39 under the 2005 provided as follows:
39.—(1) Where an application for bail is filed, the Tribunal must—
(a) as soon as reasonably practicable, serve a copy of the application on the Secretary of State; and
(b) fix a hearing.
(2) If the Secretary of State wishes to contest the application, he must file with the Tribunal and serve on the applicant a written statement of his reasons for doing so—
(a) not later than 2.00 p.m. on the business day before the hearing; or
(b) if he was served with notice of the hearing less than 24 hours before that time, as soon as reasonably practicable.
(3) The Tribunal must serve written notice of its decision on—
(a) the parties; and
(b) the person having custody of the applicant.
(4) Where bail is granted, the notice must include—
(a) the conditions of bail; and
(b) the amount in which the applicant and any sureties are to be bound.
(5) Where bail is refused, the notice must include reasons for the refusal”.
The new 2014 Rule 39 states:
RULE 39- Bail hearings
39.—(1) Subject to paragraph (3), where a bail application is for the bail party to be released on bail, the Tribunal must, as soon as reasonably practicable, hold a hearing of the application.
(2) In all other bail proceedings, the Tribunal may determine the matter without a hearing if it considers it can justly do so.
(3) Where an application for release on bail is received by the Tribunal within 28 days after a Tribunal decision made at a hearing under paragraph (1) not to release the bail party on bail, the Tribunal—
(a) must determine whether the bail party has demonstrated that there has been a material change in circumstances since the decision;
(b) if the Tribunal so determines, must apply paragraph (1);
(c) otherwise, must dismiss the application without a hearing.
(4) Paragraph (3) has no effect until the date on which section 7(3)(c) of the Immigration Act 2014(a) (inserting paragraph 25(2) of Schedule 2 to the Immigration Act 1971) comes into force.
The previous Rule 39 merely required that where an application for bail was filed, the Tribunal was required as soon as reasonably practicable to fix a hearing. The new Rule requires that a hearing be held as soon as reasonably practicable only where the Tribunal has ascertained that the bail application has not been received within 28 days after a bail refusal decision made at a hearing. Where the bail application is received within the 28day period, the Tribunal is first required to determine whether the bail applicant has demonstrated that there has been a material change of circumstances since the last refusal of bail and only where the Tribunal so determines should a hearing be held. Where a material change of circumstances has not been shown then the bail application must be dismissed without a hearing. Rule 39(2) however makes it clear that in all other bail proceedings the Tribunal may determine the matter without a hearing if it considers it can justly do so. It appears that having regard to the 2014 Rule 38(2), Rule 39(2) would apply to other bail applications such as for variation of bail conditions or forfeiture of a recognizance.
The previous Rule 39 as set out above provided for the procedure the Secretary of State was required to follow where she wished to contest the bail application. The Secretary of State would therefore in practice file and serve a Bail Summary- the written statement of reasons. The same continues to apply however Rule 40(2) additionally provides as follows:
RULE 40- Response to a bail application
“40.—(1) If the Secretary of State opposes a bail application, the Secretary of State must provide the Tribunal and the bail party with a written statement of the reasons for doing so—
(a) not later than 2.00 pm on the working day before the hearing; or
(b) if the Secretary of State was provided with notice of the hearing less than 24 hours before that time, as soon as reasonably practicable.
(2) Where the Secretary of State’s reasons for opposition include that directions are in force for the removal of the bail party from the United Kingdom, the Secretary of State must provide a copy of the notice of those directions”.
The bail summary setting out reasons for opposing the grant of bail are now to have attached a copy of the Removal Directions where the Secretary of State’s reasons for opposing bail include that directions are in force for the removal of the bail applicant from the UK.
Rule 41 provides:
RULE- 41- Decision in bail proceedings
“41.—(1) The Tribunal must provide written notice of its decision to—
(a) the parties; and
(b) if the bail application is for the bail party to be released on bail, the person having custody of the bail party.
(2) Where bail is granted, varied or continued, the notice must state any bail conditions, including any amounts in which the bail party and any sureties are to be bound.
(3) Where bail is refused or where the Tribunal orders forfeiture of the recognizance, the notice must include reasons for the decision.
(4) Where, instead of granting or refusing bail, the Tribunal fixes the amount and conditions of the bail with a view to the recognizance being taken subsequently by a person specified by the Tribunal, the notice must include the matters stated in paragraph (2) and the name or office of the person so specified.
(5) Paragraph (6) applies where the Tribunal determines that directions for the removal of the bail party from the United Kingdom are for the time being in force and the directions require the bail party to be removed from the United Kingdom within 14 days of the date of the decision to release the bail party on bail or under paragraph (4).
(6) The notice provided under paragraph (1) must state—
(a) the determination of the Tribunal under paragraph (5);
(b) whether the Secretary of State has consented to the release of the bail party;
(c) where the Secretary of State has not consented to that release, that the bail party must therefore not be released on bail”.
When the effect of removal direction provisions come into in force, the Tribunal is required to make a determination that directions for the removal of the bail applicant are in force and those directions require removal within 14days of the date of the decision to release the bail applicant on bail. This appears to mean in practice that where the Secretary of State is unable to show the documentary removal directions, then Rule 41(6) does not apply. Whether the Secretary of State is able to prove that the directions are in force for the requisite period and the Secretary of State has additionally not consented to the bail applicant’s release, then the applicant must not be released on bail. It appears therefore that in such circumstances of provable removal directions being in force, bail is automatically to be refused and the Tribunal has no jurisdiction to exercise any discretion in this regards.
Considerable or all weight is therefore given to the Secretary of State’s consent to bail being granted where Rule 41(5) and (6) applies however it is difficult to see how the Secretary of State would give their consent at all on the day of the hearing where the Bail Summary served in advance of the hearing would almost always oppose release in all respects. Further with or without the new rule being in force, it is rare indeed that the Secretary of State would expressly agree to a bail applicant being grant bail as one would expect the detainee to have been released on the Secretary of State’s own accord prior to the bail hearing itself.
It may be considered that an applicant should not in any case submit a bail application during the currency of removal directions, however it is sometimes the case that removal directions may in fact have been set after filing of a bail application. In such cases of automatic bail refusal decisions, a bail applicant with a pending strong substantive claim may be unfairly deprived of the opportunity of being granted bail by having to withdraw the bail application if subsequently within those 14 days a judicial review claim is commenced resulting in the removal directions being cancelled.
CONSIDERATION AND CONCLUSION
Having regard to the matter of the Tribunal being able to now make an award for costs in a wider range for circumstances, it is clear however from the Procedure Rules that the Tribunal may not make an order for costs against the paying person without first giving that person an opportunity to make representations. The circumstances in which a party may be found to be acting unreasonably or being potentially subject to wasted costs might include the following:
“1) Section 29 of the Tribunals, Courts and Enforcement Act 2007 confers on the Upper Tribunal a discretionary power to order a legal or other representative to pay “wasted costs” incurred by the other party. “Wasted costs” are defined in section 29(5) as costs incurred by a party: “(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or (b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.” The words: “improper, unreasonable or negligent act or omission” are explained in Ridehalgh v Horsefield  EWCA Civ 40. Rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is also relevant. It provides (inter alia) that the Upper Tribunal may not make an order in respect of costs except in judicial review proceedings, under section 29(4) of the TCEA and “if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings”. The wasted costs jurisdiction applies to all parties. It can arise in the case of a winning party whose conduct, on the way to success, has fallen below the requisite standard and caused wasted costs to be incurred by the losing party.
(2) The overriding duty of all representatives is to the court or the Tribunal. It is improper for any practitioner to advance arguments which they know to be false or which they know, or should know, are inconsistent with their own evidence, including medical or other expert evidence. It is also incumbent upon practitioners to ensure that the Tribunal is provided with a fair and comprehensive account of all relevant facts, whether those facts are in favour or against the legal representative’s client. It will also not be acceptable to say that as of the date of the service of the application the representative was not in possession of all relevant facts because of time constraints. Time pressures might mean that applications that are less than perfect or comprehensive or complete might in actual fact reflect the very best that can be done in urgent circumstances. However, this does not excuse a failure, following service of the application, to complete the fact finding and verification exercise, and then seek to amend the application accordingly so as to ensure that the Tribunal is fully informed of the relevant facts and matters.
(3) The attention of representatives is drawn to the judgment of the High Court (Divisional Court) in R (on the application of Hamid) v SSHD  EWHC 3070 (Admin), the importance of which is underscored. Given the assumption by the Upper Tribunal of much of the jurisdiction of the High Court for dealing with judicial reviews in the field of immigration, the Tribunal will, as it has in this case, adopt a similar procedure in those circumstances where it considers it appropriate to do so.
(4) The Upper Tribunal recognises that applicants with weak cases are entitled to seek to advance their case and have it adjudicated upon; that is a fundamental aspect of having a right of access to a court. But there is a wealth of difference between the advancing of a case that is held to be unarguable in a fair, professional and proper manner and the advancing of unarguable cases in a professionally improper manner”.
It is therefore always important despite the time pressures practitioners usually experience to always review the arguments and evidence at regular intervals and seek to timely comply with Directions so that both the legal representative (or Counsel) and the Tribunal are fairly au fair with the issues in play at the hearing.
A new B1 bail application form has been uploaded on the Tribunal website effective from October 2014 and makes provision for questions which take into account the relevant changes such as needing to clarify the date of the last refusal of bail, whether removal directions are currently in force and if the 28day perIod applies to explain the material change in circumstances.
In appropriate cases, the issue of repeat bail applications can be side-stepped by seeking to submit a meritorious application very soon after the 28days have passed. An applicant may initially submit a bail application in person and that maybe refused: such an applicant may then seek legal advice within the 28day period whereupon further stronger grounds not previously raised at all initially are identified and/or circumstances may indeed have changed in the applicant’s favor such that where there is adequate justification, the Tribunal may fix a date for the bail hearing. This would clearly enable the application to be heard justly with the applicant present and with legal representation so as to enable release of a long detained applicant.