The Upper Tribunal (Immigration and Asylum Chamber) have ruled in a landmark determination, promulgated on the 15th of November 2016, Home Office Presenting Officers are liable for wasted costs pursuant to section 29 of the Tribunals Courts and Enforcement Act 2007 and rule 10 of the Upper Tribunal Procedure Rules 2008.  The Secretary of State submitted Presenting Officers are not liable for wasted costs as t as they are not “representatives” for the purposes of section 29 of the 2007 Act. Upper Tribunal Judge Bruce accepted the law required clarification and if the Secretary of State was correct then this would raise significant questions of parity with respect to the vast majority of cases that come before the Chamber. 

The Upper Tribunal rejected the Secretary of State’s case as lacking any legal justification, whilst holding the Applicant’s case to be supported by legal authority, including case law where the Home Office submitted instruction to presenting Officers from the Home Office are covered by litigation privilege. On the individual merits of the applications against a Presenting Officer who drafted grounds of appeal and a Senior Presenting Officer who presented the appeal, in circumstances where the Secretary of State conceded the application for permission to appeal was based on unmeritorious and misleading grounds, the Upper Tribunal awarded costs against each of the individuals (on an indemnity basis) finding that both had acted unreasonably.

The Respondent, PR, served evidence proving the basis of the Secretary of State’s grounds of appeal were misleading and additionally filed a victim impact statement to illustrate the affect on her due to the continuance of litigation following the successful appeal before the First-tier Tribunal. She was granted refugee status on the basis of being a victim of domestic violence from Sri Lanka.

The determination is unreported, but should be able to be cited pursuant to Practice Direction 11.2 of the Consolidated Practice Directions.

PR was represented by S Chelvan, Barrister at No5 Chambers, who was instructed by Hilton von Herbert of Hackney Law Centre.