Case notes: getting the Home Office to pay your legal costs in the immigration tribunal

We recently acted for a client in an appeal against the refusal of a partner visa.

Our client was successful not only in her appeal, but also in securing an order from the tribunal that the Secretary of State pay almost 40% of her legal costs of bringing the appeal.

Here we look at the process and timeline of applying to get your legal costs back, the relevant rules and guidance, and what arguments were successful in our client’s case.

How much will this cost me?

If you have a right of appeal to the immigration tribunal against a Home Office refusal (technically the Secretary of State for the Home Department, but we will use ‘Home Office’ in this post) of your immigration application, one of the biggest questions in deciding whether to exercise it is, how much will this cost me?

Probably the most significant costs in any appeal are legal fees (if you have a lawyer), and fees for reports if these are needed (e.g. medical reports). There can be a wide variety of other costs, for example, the court fee (currently £140), or for the translation of documents.

So in addition to the stress of the process, and sometimes – as in our client’s case – enforced separation from loved ones, mounting an appeal can be an expensive business.

And if you win, the elation quickly moves to frustration that the appeal was even necessary in the first place, and anger at the financial outlay required to prevail.

So can the Home Office be made to pay the legal costs you have incurred in bringing the appeal? The answer is yes, but only in certain circumstances.

The immigration tribunal: not a normal court

In lots of UK courts – e.g. the High Court, Court of Appeal, Supreme Court – the person who loses the case usually has to pay some or all of the legal costs of the other side. This is known as the ‘loser pays’ principle.

However, in the immigration tribunals – technically, the First Tier Tribunal (Immigration and Asylum Chamber) and the relevant chamber of the Upper Tribunal – this principle does not apply.

Whilst there is provision for the tribunal to order either side to pay the legal costs of the other, the tribunal will only make such an order against a party if they have acted unreasonably in bringing, defending or conducting proceedings.

This is provided for by Rule 9(2)(b) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

What is ‘unreasonable’?

What does ‘unreasonable’ mean in this context?

The basic test will be whether there is a reasonable explanation for the conduct under scrutiny.

This is what the courts call an intensely ‘fact sensitive’ assessment, meaning that they will look closely at who did what and when to be able to draw any conclusions about whether it was ‘reasonable’ in all the circumstances.

The assessment embraces all aspects of an Appellant’s conduct in pursuing the appeal and all aspects of the Respondent’s – almost always the Home Office – conduct in defending its decision.

Most obviously it includes behaviour in the appeal which is vexatious, designed to harass the other party rather than advance the ultimate outcome of the proceedings.

Whilst ‘unreasonable’ doesn’t simply mean ‘wrong’, it will generally be considered unreasonable to defend an appeal which is obviously meritorious.

But what does this look like in practice? Let us consider our client’s case.

Just a straightforward unmarried partner application

Our client has been in a relationship with her partner for 20 years, including at least one period of cohabitation in excess of two years whilst in the UK.

Due to family and work commitments, other than the period of cohabitation whilst studying in the UK, this relationship was lived very happily between the UK and the partner’s country of residence.

Our client and her partner took the decision to move to the UK on a permanent basis, and applied under the partner route as an unmarried partner on 17 September 2022.

In the late 1990s, our client’s partner had briefly been married to someone else. Whilst the marriage had broken down before he met our client, it was never officially dissolved and our client’s partner was unable to obtain the local equivalent of a decree absolute.

So whilst our client and her partner were able to, and did, marry locally – a jurisdiction that permits polygamy – that marriage was not recognised in the UK.

And that was fine because, in respect of unmarried partner applications where one of the parties is still technically married, the Home Office guidance says:

Where the marriage … of the applicant … to a previous partner has not been legally dissolved, the applicant may still be able to qualify under Appendix FM as an unmarried partner or same sex partner, provided … they provide evidence that the new relationship is genuine and subsisting and that the previous relationship has broken down permanently.

Our client – who happens to be a qualified solicitor, and in-house counsel at a city hedge fund – read this and took the view that the absence of a decree absolute would not therefore present an issue as long as she provided the other evidence required.

Because this is what the guidance said.

The Wrong Decision (6 January 2023)

The Home Office refused the application. The decision letter stated:

You have submitted an application as an unmarried partner. … I have not seen a decree absolute for this marriage. Your sponsor has stated in a letter that you are still legally married to [the previous spouse], but that you were also legally married to the sponsor in Egypt. Your marriage to the Sponsor in Egypt is not recognised by UK law as you were already married. Consequently, I am not satisfied that your previous relationship has broken down permanently, and I therefore refuse your application under paragraph EC-P.1.1(d) of Appendix FM of the Immigration Rules. (E-ECP.2.9).

Every time I read this refusal, I get less sure about the basis on which it was made.

But it looked as though the decision maker had assessed that the previous marriage had not broken down in whole or in part (with the word ‘consequently’) because no decree absolute had been provided.

Which is literally the opposite of the approach suggested by the Home Office in its caseworker guidance.

Initiating the appeal (30 January 2023)

Our client instructed us to appeal the decision, which we did on 30 January 2023.

Because the decision was so unclear – were they doubting the genuineness of the relationship? Were they suggesting that our client’s partner had two genuine relationships with two wives simultaneously – we had to put in evidence confirming the existence of the relationship, which we did on 30 March 2023.

Having to do this increased the amount of time that we had to spend preparing the case, and therefore the legal costs for our client.

In the context of our client’s partner, who had had multiple previous visit and student visa applications approved by the Home Office where he had declared his relationship and address in multiple forms, this was a faintly ludicrous exercise.

The Very Wrong Decision: Home Office review (12 May 2023)

The Home Office undertook a review of the case relatively early on in the process, as required by the tribunal’s ‘reform’ process.

Hopes were high that common sense would prevail.

On 12 May, these hopes were dashed in the Home Office’s written notice of reply, where the decision was maintained, and meaning that the appeal would continue to hearing.

Whilst accepting in its review that our client and her partner were in a relationship ‘as claimed’, none of the arguments made in our written submissions were addressed.

Instead, the Home Office introduced a brand-new reason for refusal, and upon which sole basis the decision appeared to have been maintained:

… the [Appellant] does not meet the definition of partner as per GEN.1.2. … [to have] lived together for 2 years continuously …The [Appellant’s] previous visit visa entry is not an intended route to living permanently with the sponsor.

The Home Office now appeared to be arguing that time spent cohabiting would only count towards the two required years if our client’s partner had held a certain immigration status at the time.

As far as I am aware, this is legally incorrect and there is no basis for such an argument within UK immigration law. Unsurprisingly, in the Respondent’s Review, none was cited.

But even if there was some legal basis to this submission, it was also factually inaccurate: our client held permission as a student – not a visitor – during their two-year period of cohabitation in the UK.

This was pointed out in a further reply we sent to the Home Office on 1 June 2023, although no further response from the Home Office was received.

Full Hearing (27 June 2023)

At the hearing on 27 June 2023, no representative for the Home Office appeared.

This was annoying on several levels, not least because I was genuinely looking forward to someone explaining the basis on which the appeal was still opposed.

Of course, in having to instruct lawyers to spend time preparing for and representing the case at a hearing, our client incurred significant costs.

Determination (22 July 2023)

Decisions in the immigration tribunals are known as determinations, and are provided in writing.

The panel of two judges allowed the appeal, finding that the previous marriage had broken down notwithstanding the absence of a decree absolute, and that the 2-year cohabitation requirement was met.

The Home Office did not appeal.

Application for costs (9 August 2023)

There is a deadline of 28 days after the date of the determination to make an application for costs (Rule 9(5)).

We argued that the Secretary of State has acted unreasonably in defending the proceedings from the outset.

We said that the Home Office was under a duty to conduct an ‘initial assessment’ of the viability of defending an appeal per the Presidential Guidance Note No.2 of 2018, and that it should have been clear even at that early stage that the decision was defective.

We asked the tribunal to order the Home Office to meet all of our client’s legal costs since the point of lodging the appeal.

Home Office response (20 September 2023)

In its response, the Home Office accepted it had acted unreasonably, but only from the point of the review stage. It agreed to pay just short of 30% of our client’s legal costs.

This meant that the Home Office did not accept that it was liable to pay our client’s legal costs for the work done up to the point of the review (between 30 January - 12 May).

Nor did they accept that the rates charged by us to our client were reasonable, and sought a reduction on this basis, also.

The period between the lodging of the appeal and the review is usually where the majority of the work should happen in any appeal, with a view to front-loading as much of the evidence as possible, and was indeed the case here.

We responded, maintaining our position that the Home Office was liable for our client’s costs from outset.

Decision on costs (23 November 2023)

The judge essentially agreed with the Home Office that the initial decision was not wrong enough to reach the very high bar for an award of costs until the point of the review.

The judge disagreed that our rates were too high, or that the work could have been undertaken by less senior staff, and ordered the Home Office to pay just short of 40% of our client’s legal costs, and which were received on 30 November 2023.

Update: January 2024

Incredibly, despite the appeal being determined on 22 July 2023, the Home Office has not yet implemented the appeal decision, and our client’s partner has not yet been issued with permission to enter the UK.

Our client is in the process of making a formal complaint about this failure, and liaising with her MP.

The original application for entry clearance was made on 17 September 2022.

Comment

In immigration tribunal appeals, the review stage is a real opportunity for appellants – and for the Home Office – to avoid lengthy litigation and its associated costs and stresses.

In appeals where the Home Office has clearly made an error, front-loading the appeal process – so that as much of the relevant information and evidence is available at the point of the Home Office review – is an absolute must, providing the greatest opportunity for a withdrawal, or a later application application for the payment of legal costs for the work from that point forward in the event of eventual success.

It also shows that the decision to appeal is itself a significant one, and not one to be taken lightly. Given the length of time the appeal process and any implementation takes – even where successful – and the costs of retaining decent lawyers, there is always a case to be made for making the application again, and which would be a quicker and less costly route to achieving a successful outcome.

We also recommend to clients that they very carefully weigh the costs/benefits/timelines of these two options before proceeding, and that time spent on legal advice at this early stage is usually money well spent.

This post is intended to provide general background on the relevant issues and does not constitute legal advice. The law (and fee rates) may have changed since the date this article was published. You should always take legal advice relating to your individual circumstances.