UTIAC (i) There appears to be a practice, relatively entrenched, whereby an AOS which contains a concession, with or without an accompanying draft consent order, incorporates a claim for costs, liquidated or otherwise. In most cases, the claim for costs has no justification.
(ii) There may be cases, likely to be small in number, where an AOS which embodies a concession on behalf of the Secretary of State, with or without an accompanying draft consent order, justifiably and reasonably incorporates a claim for costs. In such cases, good practice dictates that the AOS should state, briefly, the justification for such claim.
(iii) Where a draft consent order is tabled, both parties should proactively take all necessary and appropriate steps designed to achieve consensual resolution within a period of (at most) three weeks.
(iv) Where consensual resolution is not achieved within the timescale recommended above, this should operate as a bilateral incentive to redouble efforts to do so.
(v) In every case possessing the factor of an unexecuted draft consent order, it is essential to provide the Upper Tribunal with each party’s explanation, brief and focussed, for non-execution. This explanation should be provided by both parties, in writing:
(a) Within four weeks of the date of the AOS or, if different, the date of receipt of the draft consent order.
(b) Where a case is listed, not later than five clear working days in advance of the listing date.
(c) In cases where there is any material alteration or evolution in the terms of the explanation, not later than two clear days in advance of the listing date.
(vi) It is recognised that, exceptionally, there may be cases in which for good and sustainable reasons a consent order cannot be reasonably executed until a very late stage indeed, postdating the periods and landmarks noted above. However, the experience of the Upper Tribunal to date is that consent orders are very frequently not executed and presented to the Tribunal for approval until the last moment, frequently late on the day before the scheduled hearing and that no good reason is proffered for the parties’ failure to do so at an earlier stage. This practice is unacceptable.
(vii) The practice whereby executed consent orders materialise during the period of 48 hours prior to the listing date is unsatisfactory and unacceptable in the great majority of cases. The Upper Tribunal recognises that there may be a small number of cases where, exceptionally, this is unavoidable.
(viii) In matters of this kind, parties and their representatives are strongly encouraged to communicate electronically with the Tribunal and, further, to seek confirmation that important communications and/or attachments have been received.
(ix) In determining issues of costs, Upper Tribunal Judges will take into account the extent to which the recommendations and exhortations tabulated above have been observed and will scrutinise closely every explanation and justification proffered for non-compliance.
McCloskey J P
[2014] UKUT 514 (IAC)
Bailii
England and Wales
Immigration, Costs
Updated: 23 December 2021; Ref: scu.539114
