Lord Justice Carnwath
This Hello! style headline is perhaps the clearest sign yet that the Asylum and Immigration Tribunal will be abolished and amalgamated into the unified tribunal. The Home Office planning documents now state that the AIT will be scrapped, the AIT stakeholder meetings keep getting postponed and now the President of the new unified tribunal is sitting on AIT cases. For non immigration lawyers reading this, it is completely unheard of for a Lord Justice of the Court of Appeal to be deciding visit visa appeals and the like.
I wonder what he made of his experience.
The word is that the delay in announcing the change to the unified tribunal is because the Home Office wants to make sure the new system is sufficiently streamlined. The existing tribunals structure involves a two-stage permission to appeal system (first ask the lower tier for permission, then ask the upper tier for permission) which seems likely to be dropped in immigration cases. I’ve no idea what other ’streamlining’ they have in mind. There has been an undertaking that the procedure rules for the immigration bit of the unified tribunal will be drafted by the normal drafting committee, meaning that the Home Office will not get their grubby hands on it. I’d be surprised if the Home Office was willing to abandon the asylum service provisions (Home Office gets served then serves it on the asylum seeker), so it may be that the delay is about legislating on some parts of the new process so that the procedure rules committee is prevented from meddling.
Does this mean that there will start to be costs awards in immigration cases? A two-edged sword if ever there was one, but perhaps the only way to make the Home Office start to comply with directions, something they are notoriously poor at right now.
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There appears to be a “costs neutral” position in the Upper Tribunal. The Tribunal “may not make an order in respect of costs” except a) in proceedings on appeal from another Tribunal to the extent and in the same circumstances I assume as on AIT reconsideration now) or (b) in proceedings other than on appeal from a Tribunal (I presume in JR claims _ subject to clause 52 being passed) (i) a wasted costs Order or (c) where the Upper TRibunal considers it to have been unreasonable to have brought, conducted etc the proceedings. So ‘no order’ is the presumption?
http://www.opsi.gov.uk/si/si2008/uksi_20082698_en_3#pt2-l1g10
As i understand it, the “costs-neutral” position is to improve access to justice, that is, a claimant/appellant is not deterred by a “loser-pays” position, but it may well frustrate access ot justice if good quality publically funded reps are deterred from acting (by LSC merits-led contract specs etc.) and, as we know, particularly in the culture of disbelief in the asylum and immigration system, a claimant/appellant’s prospects of success are greatly improved by good quality legal advice and reps.
Sorry, no clearer!
Many thanks, HPL. I can think of a few examples where, had they been available, wasted costs orders would probably have been awarded against the Home Office for non compliance or adjournments without good reason. However, I can also think of a few cases I’ve been instructed in where we might have been on the wrong end of a wasted costs order – not because of anything I’d done wrong, I hasten to add.
About 5 months ago, I accidentally managed to tell Carnwath LJ to his face that I was delighted that Martin Partington’s review had pulled back from recommending that all housing cases should be moved from the Courts to the ‘unified tribunal service’. I had no idea I was talking to the head of the Tribunals, at least until about 5 seconds after he had politely excused himself and walked off. But I should probably have guessed by the expressions of those I was with at the time, it was like a Bateman cartoon.
Good thing I am extremely unlikely to ever appear before him, but he was extremely nice in his response.
Why costs? The main reason I’m happy housing is out of the tribunal (except the LVT) is no legal aid for tribunals and only rare, and very limited costs orders.
Good to hear from you, NL. I’m going to show my ignorance. I’m assuming that there is facility for costs to be awarded in the unified tribunal. I haven’t actually checked. If this were to be the case in immigration cases, many claimant representatives would be much the poorer. But not as poor as the Home Office would end up.
After a quick check, I’m not sure on the unified tribunal’s costs position either. I know what the position is in the LVT and I hadn’t heard anything at all to suggest that the unified Tribunal would change that, so I was presuming…