Anita Dammarpal Thapa v Entry Clearance Officer, New Delhi

On 19 December 2017, the Upper Tribunal heard the appellants’ application for an order under rule 10(3)(d) of the Tribunal Procedure (Upper Tribunal) R ule s 2008 that the respondent be required to pay the appellants the sum of £2,332, representing the costs said to have been incurred by the appellants as a result of the respondent having unreasonably defended the appellate proceedings in the Upper Tribunal.

The appellants appeal ed against the decisions of the respondent on 30 September 2015 to refuse them entry clearance to the United Kingdom as adult dependent relatives of their father, who was an ex-Gurkha soldier. The appellants’ appeals were heard in the First-tier Tribunal on 25 January 2017 by First-tier Tribunal Judge Majid. Mr M Chowdhury, Presenting Officer, attended on behalf of the respondent. The appellants were not represented.

It is now common ground that Counsel for the appellants had been taken ill the night before the hearing and had informed his instructing solicitors that he would be unable to attend that hearing. The sponsor father of the appellants had also been taken ill, with the result that he too could not attend.

It is also now common ground that a fax had been sent to the First-tier Tribunal’s administration on the morning of the hearing, confirming Counsel’s illness and seeking an adjournment. A further fax in this regard had also been sent, in addition to which instructing solicitors telephoned the Tribunal before the scheduled start of the hearing.

It is finally common ground that, regrettably, Judge Majid was not informed of the adjournment request or of the indisposition of Counsel a nd the sponsor. The judge proceeded with the hearing.

In a written decision promulgated on 30 January 2017, the judge held as follows:-

The appellants applied to the First-tier Tribunal for permission to appeal the decision of Judge Majid. Paragraph 3 of the grounds stated that the appellants’ solicitors had faxed and telephoned the Tribunal, as described above. The grounds noted that the judge did not appear to have been aware of the application to adjourn.

Ground 1 was, accordingly, that the judge “arguably proceeded on a mistaken view of the facts (that there was no interest in the case by the appellants, and no application to adjourn)”. The case of E & R v Secretary of State for the Home Department [2004] EWCA Civ 49 was relied upon in this regard. The judge’s mistake of fact as to the reasons why there was no representation of the appellants at the hearing was submitted to amount to an error of law.

Ground 2 contended that the judge failed, in any event, to determine the grounds of appeal against the respondent’s decision. That decision was said to constitute the refusal of the appellants’ human rights claims, by reference to Article 8 of the ECHR. A bundle of evidence was before the judge, running to 86 pages, which included witness statements “going to emotional ties” between the appellants and the sponsor, as well as “money transfer receipts going to financial support”.

Permission to appeal to the Upper Tribunal was granted by the First-tier Tribunal on 20 June 2017. The judge who granted permission stated as follows:-

On 3 July 2017, the respondent filed with the Upper Tribunal a response to the grounds of appeal, pursuant to rule 24 of the 2008 rule s. The substantive provisions of the response read as follows:-

It is now accepted by the appellants that, in composing the response, the respondent had seen only the appellants’ grounds of application for permission to appeal against the decision of the First-tier Tribunal Judge. The First-tier Tribunal had, however, been sent not only the application for permission to appeal, with the attendant grounds, but also a witness statement of Mr Syed Ali, of the appellants’ solicitors, dated 1 February 2017, detailing the attempts that had been made to secure an adjournment on the basis of the ill-health of Counsel and the sponsor. There were also a number of attendance notes of Everest Law, made on 25 January 2017 , concerning Mr Ali’s actions; a fax transmission report showing that a letter from Everest Solicitors was sent to the First-tier Tribunal on 25 January 2017, regarding the illness of Counsel, with the consequent application to adjourn; and a letter from a doctor in Brecon Group Medical Practice, dated 26 January 2017, regarding the sponsor’s indisposition.

The appellants’ appeals to the Upper Tribunal were heard by Upper Tribunal Judge Southern on 25 October 2017. Mr Jesurum, of Counsel, attended on behalf of the appellants. Mr Jesurum had been the Counsel due to attend before Judge Majid.

At paragraph 2 of his decision, Upper Tribunal Judge Southern noted that, unknown to Judge Majid “because it appears that nobody had told him” , the First-tier Tribunal had received a number of communications regarding the non-attendance of Counsel, and that:-

Upper Tribunal Judge Southern also found as follows:-

At paragraph 5, Upper Tribunal Judge Southern noted that it was common ground between the parties that “the only proper outcome is to remit this appeal to the First-tier Tribunal so that the appellants may have the hearing of their case to which they are entitled.”

The remitted hearing in the First-tier Tribunal began before First-tier Tribunal Judge A Spicer on 27 November 2017. The judge’s Record of Proceedings discloses that there was extensive cross-examination of the sponsor and the sponsor’s wife. Mr Jesurum then applied for an adjournment, which was not opposed by the respondent’s Presenting Officer.

Judge Spicer agreed to the adjournment, with the result that the appeal is, currently, part-heard.

At the hearing on 19 December 2017, Mr Ali, for the appellants, spoke to the skeleton argument on costs, which Mr Jesurum had prepared on 14 December. There, it was submitted on behalf of the appellants that the respondent’s conduct was unreasonable “in not making the concession made at the hearing earlier”.

So far as ground 1 was concerned, the appellants submitted that the mere fact the grounds accompanying the application for permission to appeal had been settled by Counsel should have led the respondent to the conclusion that Judge Majid had, in effect, proceeded on the basis of an error of fact, involving procedural fairness, and which was therefore an error of law , on E & R principles . It was, according to the appellants, unreasonable of the respondent to “reserve her position on the point”, as stated in paragraph 3 of the response of 3 July 2017.

Regarding ground 2 , the appellants submitted that Upper Tribunal Judge Southern had “specifically found an error of law on ground 2” and that there was “no lawful basis upon which” Judge Majid “could have dismissed the appeal … for ‘lack of interest’“. It was said that at no point had the respondent suggested other than that the First-tier Tribunal Judge had been under a duty to hear the appeal and consider relevant matters, including the grounds, evidence and authorities submitted.

The appellants submitted that delaying the making of concessions deprive s the other party of their benefit and cause s that party to incur unnecessary costs, as well as constituting a waste of judicial time and public money. “The late making of concessions tends to promote passive approach to litigation, adding to the burden the Tribunal faces”. According to the appellants, penalising such conduct by way of a costs order “where appropriate gives effect to the overriding objective, protects the orderly administration of justice and stands as a reminder to the parties of their duties to the Tribunal and to each other”.

Mr Wilding had provided a written response to the costs application, in the form of a letter to the Upper Tribunal dated 8 December 201 7, with attachments. Responding to ground 1 , Mr Wilding submitted that the r ule 24 response was correct i n stating that it was “unclear from the grant of permission” whether the First-tier Tribunal had been provided with evidence of the adjournment application. Mr Wilding said that it was only at the hearing before Upper Tribunal Judge Southern that the respondent, through her Presenting Officer, had been made aware of the supporting evidence.

Turning to ground 2 , Mr Wilding submitted that , since the respondent was under no obligation to file a response pursuant to r ule 24, it was difficult to see how she could be categorised as unreasonable for what she had chosen to say in that response. In any event, even if the respondent had conceded the appeal, prior to the hearing before Upper Tribunal Judge Southern, that would not have necessarily dispensed with the need for a hearing. Under the 2008 Rules , the Tribunal needs to give its consent to the withdrawal of a party’s case. Mr Wilding submitted that, although it had been clearly an error on the part of Judge Majid to dismiss the appeal in the way he did , “that did not necessarily mean the error was material given it would have depended on the evidence before the FtT which would need to have been considered by the Upper Tribunal as capable of succeeding to assess whether the error was material or not”.

In Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC), the then President of the Immigration and Asylum Chamber of the Upper Tribunal, sitting in the First-tier Tribunal with the President of the Immigration and Asylum Chamber of th at Tribunal, gave guidance on the issue of costs, including rule 10(2)(b) of the 2008 R ule s (which corresponds with rule 9(2)(b) of the Tribunal Procedure (First-tier Tribunal) ( Immigration and Asylum Chamber ) R ule s 2014 ) . In Cancino , the Tribunal drew upon a number of judgments of the Court of Appeal, including Ridehalgh v Horsefield [1994] Ch 205. At [232] in that case, the Court held that the word “unreasonable” was such as aptly to describe -

At paragraph 25 of Cancino , the Tribunal had this to say about concessions and withdrawals:-

At paragraph 27 of Cancino , the Tribunal considered it valuable to set out the following observation of the Court of Appeal in the case of In the matter of a Wasted Costs Order made against Joseph Hill and Company Solicitors [2013] EWCA Crim 775:-

Wh at emerges from Cancino is that the power to award costs under rule 10 of the 2008 R ule s (or rule 9 of the 2014 R ule s) is to be exercised with significant restraint. In particular, the parties and their representatives must realise that these powers are of a fundamentally different character from the procedural provisions and practices found in the courts and some tribunals, whereby costs regularly “follow the event”; in other words , where a successful party will normally be awarded his or her costs.

Cancino is also important for making it plain that “detailed examinations of other decided cases in the determination of wasted costs applications” are “unlikely to serve any useful purpose, descending into the less than fruitful exercise of simply comparing the facts of the instant case with those of other cases” (paragraph 22).

In the present case, we are entirely satisfied that the appellants’ application for costs must fail. In the particular circumstances, the respondent did not act unreasonably.

In the present case, the respondent was, we find, entitled to reserve her position regarding ground 1. Importantly, she had not been sent a copy of Mr Ali’s signed witness statement or the other significant materials, described in paragraph 12 above, which had been before the First-tier Tribunal Judge who had granted permission to appeal. It was only at the hearing before Upper Tribunal Judge Southern that the responde nt was made aware of this evidence. As Upper Tribunal Judge Southern’s d ecision makes plain, it was at this point that the respondent’s Presenting Officer conceded that Judge Majid’s decision did, indeed, contain an error of law.

We do not find it was unreasonable of the respondent to reserve her position , notwithstanding that the grounds of application for permission to appeal had been settled by Counsel and set out times of communications between the appellants’ solicitors and the First-tier Tribunal’s administration, which we can now see corresponded with the accompanying evidence. In sayi ng this, we are not to be taken as casting any aspersion upon the professionalism of Mr Jesurum or Everest Solicitors.

For the respondent, Mr Wilding emphasised the discretionary nature of rule 24. The respondent, in an appeal in the Upper Tribunal brought by the original appellant, has liberty to file a response. T here is no duty on her to do so. Although we agree that it would be wrong to construe the power in rule 10 to award costs so widely as, in effect, to turn the rule 24 power into a general duty, th e submission goes too far. There will be cases where (regardless of whether the respondent files a response), she will be at risk of costs for unreasonable behaviour; for example, if she does not concede an appeal which is, on the facts of which she is aware, simply bound to succeed. That, however, is not the position in the present case.

So far as ground 1 i s concerned, we have found that, in the particular circumstances of this case , the respondent was entitled not to make the concession recorded in the Upper Tribunal’s decision , until the issue regarding accompanying evidence had been clarified, at the Upper Tribunal hearing.

We must deal with Mr Wilding’s submission that, even if the respondent had conceded the error of law issue before the date of the hearing in the Upper Tribunal, one could not categorically say that the hearing would not still have taken place. The withdrawal of the respondent’s case, as contained in the rule 24 response, would have required the Upper Tribunal’s consent, pursuant to rule 17. The Upper Tribunal would, in particular, have needed to be satisfied that the agreed error of law was a material one and that, if the First-tier Tribuna l’s decision w ere set aside, remittal to the First-tier Tribunal was, in all the circumstances, the appropriate course. Once the notice of h earing in the Upper Tribunal ha d been sent ou t, one could well see that the Tribunal, faced with such a “concession” by the respondent, might reasonably have conclude d that the overriding objective would be best served by having these matters dealt with at a hearing. In such a scenario, any claim for costs w ould have to demonstrate that the need for a substantive hearing could have been avoided by conceding the case before (perhaps significantly before) the case was listed for hearing.

What we have just said applies to both grounds 1 and 2. So far as ground 2 itself is concerned, however, we agree with Mr Wilding that it was not unreasonable for the respondent to decline to concede the appeal on that ground . Unlike ground 1, where the issue was procedural fairness, ground 2 depended upon Judge Majid’s error being material to the outcome of the appeal. We note that Upper Tribunal Judge Southern’s decision makes it plain that, at the hearing before him, the respondent ’s Presenting Officer did not make a concession in respect of ground 2 . It is, we consider, noteworthy that the Article 8 issue remains firmly in contention between the parties, as can be seen from what happened at the remitted hearing.

For these reasons, the appellants’ appl ication for costs fails.

The circumstances of this case raise a procedural point of some general significance.

I n common with the rule s of other Chambers of t he First-tier Tribunal, rule 34 of the 2014 Rules requires the Immigration and Asylum Chamber of the First-tier Tribunal, upon receiving an application for permission to appeal to the Upper Tribunal, to consider whether to review the appeal decision under section 9 of the Tribunals, Courts and E nforcement Act 2007. Rule 35 provides that a review may only be undertaken (a) on receiving such an application and (b) if the First-tier Tribunal is satisfied “that there was an error of law in the decision” (our emphasis); not merely that there was arguably such an error.

S ection 9 provides as follows:-

As we have seen, the First-tier Tribunal Judge who granted permission to appeal had before her not only the grounds of appeal but, importantly, the signed witness statement of Mr Ali and the other evidential materials mentioned in paragraph 12 above. The cumulative effect of these materials was to make it evident that Judge Majid had proceeded under a material misapprehension. He had committed an error of fact going to procedural fairness, which was in the circumstances plainly an error of law .

The First-tier Tribunal Judge was, accordingly, in a position to see that the submissions recorded in the gr ant of permission, taken from the groun ds of application, were fully made out. In the circumstances, th e First-tier Tribunal , in our view, would have been entitled to undertake a section 9 review and conclude (on the well-known E & R pr inciple) that Judge Majid’s decision contained an error of law, not merely an arguable one : see paragraph 40 above .

Appl ying section 9, the Tribunal could , in these circumstances, have issued a review decision, finding such an error and setting aside Judge Majid’s decision. The n ature of the error was plainly such as to require the decision in the appeals to be re-made by the First-tier Tribunal.

This case is, in short, a good example of the usefulness of the power of review in section 9. Instead of granting permission to appeal, with its attendant inevitable delay, recourse to review would have meant the appeals would have be en re-heard, in all probability long before December 2017 , without the Upper Tribunal being involved .