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Home Office - Immigration Tribunal - unreasonable behaviour
29 October 2018
"Unreasonable behaviour" sounds like something out of the divorce courts, but it is a concept which may now be extended somewhat further to the Home Office in its dealings with the Immigration Tribunal - and not before time, we are irresistibly tempted to say.
Many advocates will have experienced the rather dysfunctional situation at the Tribunal where there is an obviously poor decision by the Home Office on the table, but the HOPO (Home Office Presenting Officer, who is a kind of advocate) defends it tooth and nail and to the death. It sometimes emerges that this is not necessarily due to pure obstinacy - it may be that the HOPO has been instructed by their Home Office bosses that they are not allowed to concede, no matter how weak the decision is.
However, a few years ago the Home Office did at least make an effort to improve this kind of situation. They introduced a system whereby the decision was, or should be, reviewed (by the HOPO apparently) a few days before the hearing - or in some cases a few hours. If they decided that the decision was weak or flawed they would then withdraw the decision and the expectation was that the migrant would then in due course be granted the immigration leave they had applied for.
This was of course an improvement, but the migrant in that situation had (if they had instructed on a private basis) probably paid a fair chunk of money to their lawyers to prepare their appeal case. The case was in many instances fully prepared and "ready to go", and so the fees, or a large proportion of them, were nonetheless payable to their lawyers, despite the hearing not having gone ahead. And also it was all rather stressful.
Additionally, in most cases migrants before the Tribunal have to pay a fee for their case to be heard. When it is an oral hearing (ie a live hearing before a judge) this fee is £140. If their case is successful then they at least get refunded the £140 but they have probably paid their lawyers a bit more than this to prepare their case - preparing a Tribunal case to a good standard takes a lot of time and work.
But, under the established regime, the migrant could not very easily claim their legal costs (ie fees they had paid to their lawyers) from the Home Office as well; to be able to do so they would have to prove that the Home Office had behaved "unreasonably" in the conduct of the appeal, and unreasonableness was difficult to demonstrate.
So such a migrant, although probably very relieved that their case was now likely to be successful, still had every right to feel aggrieved. Some Home Office decisions are very poor, to the extent where it is almost a dead cert that the migrant will succeed at appeal, but the migrant might have had to spend x amount of money to reach the stage of getting the poor decision withdrawn.
This evidently unfair situation has now been addressed in a new Guidance Note issued by the Presidents of the Tribunal, which extends the concept of unreasonableness and provides more guidance than existed hitherto (https://www.judiciary.uk/wp-content/uploads/2018/07/costs-guidance-2018.pdf).
It contains the clear and magic words, directed to the Home Office: "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." So if an appeal is very strong the Home Office should abandon the case and withdraw the decision - and at an early stage.
This must provide a lot of comfort to those who have received poorly-reasoned refusal decisions from the Home Office and where there is the right of appeal to the First-Tier Immigration Tribunal. The problem is of course that these days there is no longer any right of appeal in some major visa categories, eg work and study; these categories now only attract the tender mercies of Home Office Administrative Review.
But in other categories - eg family visas, human rights/asylum applications, long residence applications, applications under EEA law - the right of appeal still exists.
So if you have received a refusal decision and you have the right of appeal you might in any case want to consult a good lawyer. And if your good lawyer advises you that the decision is poor and is not likely to withstand the scrutiny of a judge at the Tribunal then your lawyer may be able to get the decision withdrawn without the necessity of a Tribunal hearing.