Introduction

The case of Thapa & Ors [2018] UKUT 54 (IAC) addresses significant issues pertaining to the awarding of costs in immigration appeals and the imperative of maintaining procedural fairness. The appellants, Anita Dammarpal Thapa, Surya Bahadur Dammarpal Thapa, and Kamala Dammarpal Thapa, sought entry clearance to the United Kingdom as adult dependent relatives of their father, an ex-Gurkha soldier. Their application was refused by the Entry Clearance Officer in New Delhi, leading to an appeal that unfolded across multiple tribunals.

Key issues in this case include the procedural mishandling during the initial hearing, particularly the failure to adjourn the hearing despite the unavailability of counsel and the sponsor due to illness. The appellants further contended that this oversight amounted to an error of law, thereby breaching their right to a fair hearing under Article 8 of the European Convention on Human Rights (ECHR).

Summary of the Judgment

The Upper Tribunal, Immigration and Asylum Chamber, delivered a comprehensive decision on 19 December 2017. The core decision revolved around the appellants' application for a costs order against the respondent for allegedly unreasonably defending the appellate proceedings. The Upper Tribunal meticulously examined the procedural history, including the First-tier Tribunal's oversight in not considering adjournment requests due to the unavailability of the appellants' counsel and sponsor.

Ultimately, the Upper Tribunal found that the respondent did not act unreasonably in the context of awarding costs. The Tribunal emphasized the restrained approach mandated by Cancino [2015] UKFTT 59 (IAC), highlighting that costs orders should not become routine without substantiated reasons. Additionally, the Tribunal underscored the necessity of procedural fairness and the appropriate exercise of discretionary powers under the relevant tribunal rules.

Analysis

Precedents Cited

The judgment extensively references key precedents that inform the Upper Tribunal's approach to awarding costs and upholding procedural fairness:

• Cancino (costs - First-tier Tribunal - new powers) [2015] UKFTT 59 (IAC): This case provided foundational guidance on the discretionary power to award costs, emphasizing restraint and the necessity of justifiable reasons.
• Ridehalgh v Horsefield [1994] Ch 205: Cited for its interpretation of "unreasonable conduct" in the context of costs, establishing that conduct must be vexatious or intended to harass to qualify as unreasonable.
• In the matter of a Wasted Costs Order made against Joseph Hill and Company Solicitors [2013] EWCA Crim 775: Highlighted the importance of efficiency and the cautious application of wasted costs orders to avoid unnecessary delays and expenses.
• E & R v Secretary of State for the Home Department [2004] EWCA Civ 49: Discussed errors of fact and law in tribunal decisions, particularly concerning procedural fairness.

Legal Reasoning

The Upper Tribunal's legal reasoning is anchored in the balanced application of discretionary powers under the Tribunal Procedure Rules. Key aspects include:

• Restraint in Awarding Costs: The Tribunal reiterated that the power to award costs should not be exercised lightly. Drawing from Cancino, it was emphasized that costs orders should be reserved for clear instances of unreasonable conduct, avoiding a default of awarding costs merely based on an unsuccessful outcome.
• Procedural Fairness: Central to the decision was the acknowledgment that the First-tier Tribunal Judge Majid erred in not considering the appellants' requests for adjournment due to counsel and sponsor unavailability. This oversight was deemed a procedural unfairness that constituted an error of law, warranting a review under section 9 of the Tribunals, Courts and Enforcement Act 2007.
• Discretionary Nature of Rule 24: The respondent's use of rule 24 to file a response was scrutinized. The Tribunal upheld the notion that the respondent was within her discretion to reserve her position regarding the grounds of appeal, especially given the lack of access to crucial evidential materials prior to the Upper Tribunal hearing.
• Impact of Procedural Errors: The judgment underscored that procedural errors, such as failing to adjourn when essential representatives are unavailable, can significantly impact the fairness of proceedings. Such errors not only affect the immediate case but also have broader implications for legal practices within tribunal procedures.

Impact

This judgment has several implications for future cases and the broader landscape of immigration and asylum law:

• Cost Awards: The decision reinforces the principle that costs awards in tribunal settings are exceptional and should be based on clear evidence of unreasonable conduct. This ensures that parties are not unduly burdened by costs orders, maintaining access to justice.
• Procedural Adherence: Tribunals are reminded of the critical importance of adhering to procedural fairness, including the consideration of adjournment requests. This serves as a safeguard against miscarriages of justice arising from administrative oversights.
• Use of Section 9 Review: The case exemplifies the effective use of section 9 reviews to rectify errors of law, promoting judicial efficiency by allowing errors to be addressed within the tribunal system without escalating to higher courts.
• Professional Conduct: Legal representatives are encouraged to act proactively and communicate effectively with tribunals to prevent procedural misunderstandings that could adversely affect their clients' cases.

Complex Concepts Simplified

• Section 9 Review: A mechanism under the Tribunals, Courts and Enforcement Act 2007 that allows the First-tier Tribunal to review its own decisions if an error of law has occurred, ensuring that decisions are just and based on correct legal principles.
• Costs Order: A directive from the tribunal requiring one party to pay the legal costs of another. In immigration tribunals, such orders are not automatic and are only granted in specific circumstances where conduct has been unreasonable.
• Procedural Fairness: The principle that legal proceedings should be conducted in a fair and unbiased manner, ensuring that all parties have an equal opportunity to present their case.
• Tribunal Procedure Rules: A set of rules governing how tribunals operate, including how hearings are conducted, how decisions are made, and how costs can be awarded.

Conclusion

The Thapa & Ors [2018] UKUT 54 (IAC) judgment serves as a pivotal reference point for understanding the delicate balance tribunals must maintain between exercise of discretionary powers and upholding procedural fairness. By affirming the restrained approach to awarding costs and emphasizing the rectification of procedural errors through mechanisms like section 9 reviews, the Upper Tribunal has reinforced the principles that underpin a fair and efficient legal system.

For practitioners and parties involved in immigration and asylum proceedings, this case underscores the necessity of meticulous procedural compliance and the judicious use of discretionary powers. Moreover, it highlights the importance of transparent communication and prompt action in legal representation to safeguard clients' rights and ensure just outcomes.

In the broader legal context, the judgment contributes to the evolving jurisprudence on costs management and error correction within tribunal systems, promoting a more equitable and accountable approach to adjudication.