Anita Dammarpal Thapa v Entry Clearance Officer, New Delhi

The power to award costs for unreasonable conduct under the Tribunal Procedure Rules must be exercised with significant restraint. It is not a costs-follow-the-event jurisdiction. Whether conduct is unreasonable depends on the particular circumstances, and comparisons with other costs decisions will rarely assist.

A respondent may reasonably reserve its position where material evidence supporting an asserted procedural error has not been provided. The discretionary ability to respond to an appeal does not create a general duty to concede. A costs applicant must also show that an earlier concession would probably have avoided the need for a substantive hearing.

Where an established error of law has deprived a party of a fair hearing, section 9 review may enable the First-tier Tribunal to set aside and re-decide its decision without an Upper Tribunal appeal.

The appellants had appealed refusals of entry clearance as adult dependent relatives of their ex-Gurkha father. Their First-tier Tribunal appeals were dismissed for apparent lack of interest after neither counsel nor the sponsor attended. Unknown to the judge, solicitors had faxed and telephoned an adjournment request because both were ill.

Permission to appeal was granted. The Upper Tribunal, constituted by Upper Tribunal Judge Southern, found procedural unfairness and a separate failure to engage with the material before the First-tier Tribunal. It set aside the dismissal and remitted the appeals, which later became part-heard.

The present application sought costs under rule 10(3)(d), alleging that the respondent had unreasonably defended the Upper Tribunal proceedings by delaying a concession. The Tribunal also considered the First-tier Tribunal’s power to review its own decision under section 9 of the Tribunals, Courts and Enforcement Act 2007.

1. The costs application was dismissed. The principles in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) require significant restraint in exercising the costs powers in rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. The jurisdiction is fundamentally unlike an ordinary costs-follow-the-event regime. Detailed factual comparisons with other costs cases are generally unhelpful.

2. The respondent had a reasonable explanation for reserving her position on the procedural-fairness ground. She had received the grounds of appeal but not the signed witness statement and supporting materials demonstrating the solicitors’ attempts to obtain an adjournment. Her concession at the Upper Tribunal hearing followed disclosure of that evidence. The fact that counsel had settled the grounds did not make it unreasonable to require confirmation of their factual basis.

3. Rule 24 is discretionary. The absence of a duty to file a response does not immunise a respondent from a costs order where, on known facts, an appeal is plainly bound to succeed. It would, however, be wrong to use rule 10 so broadly that rule 24 becomes a general duty to concede. Here the respondent was entitled to await clarification, and the Article 8 issue remained contested.

4. An earlier concession would not necessarily have avoided a hearing. Withdrawal required the Upper Tribunal’s consent under rule 17, which would still need to address materiality and the appropriate disposal. A costs claimant must establish that an earlier concession would have avoided the substantive hearing.

5. As a matter of general procedural guidance, section 9 of the Tribunals, Courts and Enforcement Act 2007, read with rules 34 and 35 of the 2014 Rules, permitted the First-tier Tribunal to review, set aside and re-decide the dismissal once the materials established an error of law under the E & R v Secretary of State for the Home Department [2004] EWCA Civ 49 principle. That route would have avoided the Upper Tribunal appeal and enabled a speedier rehearing.

• Upper Tribunal (Immigration and Asylum Chamber): The present Tribunal dismissed the appellants’ application for costs under rule 10(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Southern found that the First-tier Tribunal proceedings had been procedurally unfair, set aside the dismissal and remitted the appeals to the First-tier Tribunal.

• First-tier Tribunal (Immigration and Asylum Chamber): Judge Majid dismissed the entry-clearance appeals on 30 January 2017, treating the appellants’ non-attendance as a lack of interest. Permission to appeal was later granted by the First-tier Tribunal.