Upper Tribunal makes order for wasted costs against Home Office Presenting Officers

No5 Chambers reported yesterday that the Upper Tribunal (Immigration and Asylum Chamber) has ruled in a landmark decision that 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 Tribunal determination is currently unreported, but No5 Chambers has a copy of the determination here and says it should be able to be cited pursuant to Practice Direction 11.2 of the Consolidated Practice Directions.

Garden Court's Colin Yeo called the determination "remarkable".

According to No5 Chambers, Upper Tribunal Judge Bruce rejected the Secretary of State's argument that Presenting Officers are not liable for wasted costs as they are not "representatives" for the purposes of section 29(4) of the 2007 Act.

No5 Chambers continued: "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 ligiation 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, was represented by No5's S Chelvan.