Specialist lawyers have hit back hard at government proposals for fixed recoverable costs (FRC) for immigration-related judicial reviews, as well as encouraging more wasted costs orders. The ideas formed part of the Home Office consultation, called a New Plan for Immigration.
In a response supported by the Bar Council, the Immigration Law Practitioners Association (ILPA) identified three main flaws with introducing FRC:
- “The substantial variability between judicial review claims, which makes them inapt for the fixed-costs regime”;
- The importance of the decisions only amendable to judicial review, “which in the immigration context can be vital to individual claimants (such as asylum issues), or relate to the correct interpretations of complex immigration rules, which are then the basis for decisions in whole cohorts of cases”; and
- The lack of a proper evidence base or sound reasons for the proposed change.
ILPA said: “The reality appears to be that the motivation for introducing this provision is to have a chilling effect upon the number of judicial reviews brought against the Home Office.”
It argued that the “true drivers” for the current level of claims was the “persistently poor quality of decision making by the Home Office”, the “labyrinthine complexity” of immigration law, and the “steady erosion” of rights of appeal in this field of law, meaning that in more and more cases judicial review was the sole remedy.
“The perception on the part of the Home Office, if it be genuine, that the Upper Tribunal is clogged up with unmeritorious claims is wholly at odds with reality: legal aid lawyers have no incentive to bring such claims; quite to the contrary to do so would be a swift road to financial ruin.”
It said a “persistent frustration” with the costs regime was that even work accepted as having been necessary, and where costs incurred due to the litigation failings of the Home Office, costs were often written off by the courts on the basis that the expenditure was “disproportionate”.
ILPA said the introduction of qualified one-way costs shifting to judicial review proceedings or the extension of the Aarhus approach to all judicial reviews – while not perfect solutions – “have much more to recommend them” than FRC.
“The fact that both those proposals have been ignored, and the government is now suggesting the extension of the fixed costs regime, in the absence of any proper investigation, data, or analysis which has been rejected on each previous occasion, exposes their true motivations.
“In the circumstances, it is difficult to avoid the conclusion that the proposed ‘fixed recoverable costs’ system is not in fact devised in order to ‘promote fairness, certainty and balance to the way in which costs were incurred in these cases’ at all.
“The only significant effect it is likely to have is to protect the Secretary of State by reducing the costs burden on her when she makes an unlawful decision and loses judicial review claims.”
Similarly with wasted costs, ILPA said it was “hard to avoid the conclusion” that the true aim was “to load the scales in the Secretary of State’s favour by obliging appellant’s lawyers to operate subject to routine penalties, in the hope that this will disincentivise lawyers from accepting appellants’ instructions”.
In its response, the Bar Council said the wasted costs proposals lacked clarity and were without evidential foundation.
“In the Bar Council’s view it would be extraordinary to target representatives in a particular jurisdiction with a wasted costs regime that is fundamentally different to and more severe than that which operates in other jurisdictions.”