Prior to 2014, it was not possible to get an award for unreasonable costs in immigration appeals. However, Rule 9(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chambers) Rules 2014 changed this, stating that the Tribunal may make an order in respect of costs if a person has acted unreasonably in bringing, defending or conducting proceedings.
Unreasonable costs orders should not be confused with wasted costs orders. Wasted costs orders may only be made against a legal or other representative (but cannot be made against Home Office Presenting Officers). However, an unreasonable costs order may be made against a party to the appeal, including the Secretary of State. Wasted costs orders, and costs in judicial review will be addressed in future blog posts.
When can an order for unreasonable costs be made?
The case of Cancino (costs – First-tier Tribunal – new powers)  UKFTT 00059 (IAC) made it clear that orders for unreasonable costs are the exception rather than the rule in immigration appeals, and that they should be reserved for only the clearest cases. This is to ensure that the process of applying for an order for costs will not end up taking more time and effort than the matter that the costs relate to.
The Presidential Guidance Note No.2 of 2018 explains that the basic test for an unreasonable costs order is whether there is a reasonable explanation for the conduct under scrutiny. This test is taken from the case of Ridehalgh v Horsefield  Ch 205 at 232. In considering this, the Tribunal should consider whether the Appellant has acted unreasonably in bringing or in the conduct of the appeal or whether the Respondent has acted unreasonably in defending or in the conduct of the defence of the appeal.
As emphasised in Cancino, the decision as to whether a party has acted unreasonably will be fact sensitive. However, there is an objective starting point. The objective standard which will be applied to the Secretary of State's caseworkers and Home Office Presenting Officers is that of a hypothetically reasonably competent civil servant.
There will be a rebuttable presumption that the Home Office Presenting Officers are "sufficiently trained so as to adequately discharge the important function of representing a high profile Government Minister in the self-evidently important sphere of immigration and asylum legal proceedings in a society governed by the rule of law."
The Presidential Guidance provides further insight into what exactly the Secretary of State will be expected to do. It states that in every case the Secretary of State must undertake an initial assessment of the viability of defending an appeal after it has been lodged. It will, as a general rule, be unreasonable to defend – or to continue to defend – an appeal which, objectively assessed, is irresistible or obviously meritorious.
Simultaneously, there is a duty on the Appellant and their representatives to review the feasibility of pursuing an appeal from time to time. The Guidance further states that the assessment of unreasonableness will be informed by the state of the presentation, the completeness of the papers and the quality of the pleading. It states that poorly formulated and opaque grounds of appeal will complicate and undermine the efficacy of the exercise to be performed. The Secretary of State will also be expected to conduct subsequent reassessment(s) when any material development occurs.
The unreasonable conduct can have taken place at any point from when the appeal comes into existence, to the point when the appeal has been finally determined by the Tribunal.
How to apply for an order for unreasonable costs
The Tribunal does have the power to make an order for unreasonable costs of its own initiative. If a Judge considers that this is the case, they will refer the case to the Resident Judge.
If this is not the case, it is possible to make an application for an order for costs. This application can be made orally at the substantive hearing. If it is not made at this point, it must be made in writing and sent or delivered both to the Tribunal and to the person against whom the order is sought to be made. This can be sent along with a schedule of costs claimed, which will allow the Tribunal to assess them.
An application for unreasonable costs can be made at any time during the proceedings but must be made within 28 days after the date on which the Tribunal sends either a notice of decision or a notice that withdrawal has taken effect.
If the application for unreasonable costs is made after the substantive hearing it will be referred to the Resident Judge at the hearing centre where the appeal was heard. If the Resident Judge considers that the application is without merit they may dismiss it without further procedure. Otherwise, the Resident Judge will instruct that standard directions on the assessment of the costs will be issued.
If there is an oral hearing to assess the costs it will be before the Resident Judge, or before such other Judges as the Resident Judge considers appropriate. This will not necessarily be the Judge who heard the substantive appeal. It is important to note that a decision on costs is an "excluded decision" and therefore not subject to an appeal.
How will costs be assessed?
The amount of costs to be paid under an unreasonable costs order will usually be summarily assessed by the Tribunal.
Generally, costs are assessed on the standard basis, which means that costs which are disproportionate in amount may be disallowed or reduced, even if they were incurred reasonably or by necessity.
In very exceptional cases, costs may be assessed on an indemnity basis. This means that costs can be awarded even if they are of an amount which is disproportionate. However, this method of assessment will only be used if the conduct has been unreasonable to a high degree. The case of Wates Construction Limited v HGP Greentree Alchurch Evans Limited  BLR 45illustrates this by explaining that whilst the pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, the pursuit of a hopeless claim may well lead to such an order. However, as any award of costs in immigration appeals is already reserved for only the clearest cases, reaching this even higher threshold is likely to be very difficult.