This month, the President of the First-Tier Tribunal issued a new guidance note on migrants who win appeals against the Home Office can seek legal costs from the department. In essence this guidance stipulates that costs awarded for “unreasonable conduct” whereby the Home Office contests an appeal “which is, objectively assessed, irresistible or obviously meritorious”, demanding that officials should carry out an initial assessment as to whether an appeal should be defended within 6 weeks of its being lodged.
The guidance note issued is based on the principles outlined in three cases two of which are reported official the other is not. The principles taken from the case of Awuah are perhaps the most useful for appellants. Extracts from the judgement included 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.
Moreover, Elisabeth Ruddick included a concise summary on the Wesley Gryk website, the following:
“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.”
However, now that there is Presidential guidance incorporating large chunks of Awuah (No. 2), it is hard to see many tribunal judges refusing to permit others from relying on it.