Introduction

The case of Ernesto Garcia Cancino v Secretary of State for the Home Department ([2015] UKFTT 59 (IAC)) marks a significant development in the cost awarding powers of the First-tier Tribunal (FtT) within the Immigration and Asylum Chamber. Heard at Taylor House, London, and promulgated on 18 December 2014, this judgment explores the newly established powers under Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. The appellant, Ernesto Garcia Cancino, sought costs against the Secretary of State for alleged unreasonable conduct in defending his appeal.

This commentary delves into the background of the case, the tribunal's decision, the legal precedents cited, the court's reasoning, and the broader implications for future proceedings within the immigration and asylum framework.

Summary of the Judgment

The tribunal examined whether Rule 9 of the 2014 Rules, which grants the FtT new powers to award costs, applied to Cancino's appeal, which was filed before the commencement date of 20 October 2014. The key findings were:

• Rule 9 applies only to appeals initiated on or after 20 October 2014.
• Cancino's appeal predated this date; hence, Rule 9 was not applicable.
• The application for costs under Rule 9 was refused based on the non-retroactive nature of the rule.
• The tribunal also considered the responsiveness of the respondent's conduct in defending the appeal but ultimately declined to exercise the discretionary power as Rule 9 was inapplicable.

Analysis

Precedents Cited

The tribunal heavily relied on established case law to interpret Rule 9 and its application:

• Ridehalgh v Horsefield [1994] Ch 205: A cornerstone case defining "wasted costs" and setting a three-stage test for awarding such costs.
• Myers v Elman [1940] AC 282: Discussed the distinction between disciplinary actions and wasted costs orders against solicitors.
• Medcalf v Weatheril [2003] 1 AC 120: Highlighted mitigating circumstances in exercising discretion for costs awards.
• Saif Ali v Sidney Mitchell [1980] AC 198: Defined the negligence standard required for wasted costs claims.
• Various other cases reinforcing the principle of fairness and fact-sensitive analysis in cost awards.

Legal Reasoning

The tribunal's reasoning encompassed several key points:

• Scope of Rule 9: Clarified that Rule 9 empowers the FtT to award costs for appeals initiated post-20 October 2014 only.
• Discretionary Nature: Emphasized that awards of costs under Rule 9 are discretionary, not mandatory, requiring judges to consider all material factors without bias.
• Non-Retroactivity: Based on statutory interpretation principles, the tribunal concluded that Rule 9 does not apply retrospectively to appeals filed before its commencement.
• Application to Representatives: Determined that "legal or other representative" does not extend to unrepresented litigants or "Mackenzie" friends, focusing the rule's applicability.

Impact

This judgment establishes clear boundaries regarding the application of Rule 9:

• Temporal Limitation: Only appeals initiated after 20 October 2014 are subject to cost awards under Rule 9.
• Limited Use: Reinforces the notion that cost orders under Rule 9 are exceptional and reserved for clear instances of unreasonable or wasted conduct.
• Encouragement of Fair Conduct: Acts as a deterrent against unreasonable behavior in proceedings, promoting efficiency and propriety.
• Guidance for Practitioners: Provides a framework for legal representatives to understand the limitations and applications of cost awards in immigration appeals.

Complex Concepts Simplified

Rule 9 of the 2014 Rules

Rule 9 grants the FtT the authority to award costs to parties in immigration and asylum appeals under specific circumstances:

• Rule 9(1): Allows the tribunal to order the respondent to pay costs if the appeal is allowed, covering fees not refunded or fees the appellant may be liable for.
• Rule 9(2): Introduces new discretionary powers to award "wasted costs" or costs if a party has acted unreasonably in the proceedings.

Wasted Costs

Defined under section 29(5) of the Tribunals, Courts and Enforcement Act 2007, "wasted costs" refer to:

• Costs incurred due to any improper, unreasonable, or negligent act or omission by a legal representative.
• Costs deemed unreasonable by the tribunal in light of such conduct.

Discretionary Power

The tribunal's authority to award costs under Rule 9 is not automatic. Instead, it requires:

• Assessment of the conduct of parties or their representatives.
• Establishment of a causal link between the conduct and the costs incurred.
• Judicial discretion to decide whether to award costs based on the evidence.

Conclusion

The decision in Cancino v Secretary of State for the Home Department serves as a pivotal reference point for understanding the application of Rule 9 within the First-tier Tribunal's Immigration and Asylum Chamber. By delineating the temporal scope and reinforcing the discretionary nature of cost awards, the tribunal underscores the importance of fairness, proportionality, and factual sensitivity in judicial proceedings. This judgment not only clarifies the operational boundaries of new cost awarding powers but also ensures that such powers are exercised judiciously, thereby maintaining the integrity and efficiency of the immigration appeal process.

Legal practitioners and future appellants should note the emphasis on non-retroactivity and the exceptional basis for cost awards, shaping strategies and expectations in subsequent cases within this jurisdiction.