Everyone knows that the tribunal judiciary is generally quick to side with sedentary HOPOs who serve no purpose other than reciting flawed decision letters as if they were scripture. It is also an open secret that in the line of duty, officials routinely lie, cheat, mislead and obfuscate matters to maintain the upper hand. The behaviour of HOPOs and the oppressive bureaucratic culture they represent brings to mind Geoffery Care’s intriguing analysis that in the first tribunal that sat secretly in Blackwall in an abandoned waterside office, the immigration officer used to be the “boss” in proceedings relating to the “right to land”. By analogy it is entirely possible to perceive HOPOs as a modern-day mafia that operates at the behest of the Godfather, i.e. the SSHD. In these proceedings, McCloskey J (President) and Mr Clements (President FtT) answered a series of questions and gave detailed guidance on the HOPO creed whose foremost traits, in addition to being deceitful, are negligence and mediocrity. However, they lamentably found that the FtT is not empowered to make a Wasted Costs Order (“WCO”) against a HOPO and that the Carltona principle governs the SSHD-HOPO relationship. They also found that a range of judicial functions and duties achieve HOPOs’ answerability to the tribunal.
Each time a WCO is in contemplation common law fairness requires that the respondent should be alerted to this possibility, be appraised of the case against him and be given adequate time and opportunity to respond. Similarly, the basic requirements of fairness to the respondent must always be respected despite the fact that expedition and summary decision-making are desirable in WCO cases. According to McCloskey J and Mr Clements, a causal nexus between the impugned conduct of the respondent and the costs unnecessarily incurred by the aggrieved party is a condition precedent for a WCO to be made. The final word of presidential caution was that the tribunal must employ restraint when exercising its “own motion” power to make a WCO. Notably, there are 145 HOPOs nationwide operating out of nine home office centres. This number includes 37 SPOs, or senior presenting officers, charged with presenting cases to the Upper Tribunal.
The issues in these four appeals were case specific. Their resolution was, among other things, steered by the presidents’ resolution of the general questions. Since a WCO needs to be made against a person (representative), the first question asked against whom can the FtT make a WCO and, particularly, whether a WCO can be made against a HOPO? Secondly, if the FtT is empowered to make a WCO against a HOPO then in what circumstances is it appropriate to make such an order? Thirdly, what are the procedural and evidential requirements for making a WCO? Finally, in what circumstances is it appropriate for the FtT to make a WCO on its own initiative?
The presidents began their analysis by recalling the central statutory provision relating to costs or expenses laid down in section 29 of the Tribunals, Courts and Enforcement Act 2007. After extracting this “important procedural rule” the presidents proceeded to focus on rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 which has been in operation since October 2014 and is wider than section 29 because it speaks of parties to litigation rather than merely being directed to the litigation conduct of a party’s legal or other representative. Wasted costs are defined in section 29(5) on the same footing as in section 51(7) of the Supreme Court Act 1981.
Indeed, in Cancino (Costs – First-tier Tribunal – New powers)  UKFTT 59 (IAC), an earlier decision hugely nepotistic to HOPOs where the president inexplicably pandered to the whims of disgracefully behaved civil servants, rule 9(2) was characterised as a new power to award costs and taken together section 29 and rule 9 were deemed to be two core elements of the wasted costs regime in the FtT.
HOPOs and WCOs
Ostensibly “a pure question of law”, the first question was nevertheless defined by context. The “whats, why’s and wherefores” of HOPOs – i.e. what they are and what do they do? – had been examined in Home Office v the Information Commissioner and Yeo  UKFTT 2015 0213 (GRC) where a home office director called Daniel Hobbs provided insight on these subjects. Hobbs’s evidence demonstrates that HOPOs are chronically unqualified to be involved in immigration appeals and that only undertake an internal eight day training course and occasional further training thereafter. “A limited number of law graduates” are also recruited for special occasions or “most complex” cases.
Centrally, the appellants made the argument that HOPOs are other representative(s) within the meaning of section 29(5) of the 2007 Act and a representative within the meaning of rule 10 of the 2014 Rules. This was resisted by placing particular emphasis on the connection between section 29(5) of the 2007 Act and section 51(7) of the 1981 Act and jurisprudence linked to the latter provision.
A detailed analysis of the speeches of Lord Steyn and Lord Hobhouse in Medcalf v Mardell  UKHL 2002 exposed a situation where the House of Lords clearly distinguished a professional advocate from a mere litigation agent. It is equally clear from Medcalf that an advocate acting in breach of his duty to the court is a necessary precondition of a WCO. The point was reinforced in Ridehalgh v Horsefield  EWCA Civ 40 where the court rejected the argument that a breach of the advocate’s duty to his client must also be demonstrated in order to justify a WCO.
Since it was impossible to classify HOPOs as falling within the remit of professional regulators such as the Law Society, the Bar Council, CILEX or indeed any other professional regulator, the presidents held that:
22. The framework which we have outlined and expounded above simply cannot be applied to HOPOs. They are not officers of the court. They belong to none of the regulated professional cohorts. They do not enjoy the privileges and immunities of the advocate. They are not subject to any of the detailed codes regulating the professional and ethical conduct of advocates and others and, in consequence, they lie outwith the jurisdiction of the various regulatory bodies. Stated succinctly, HOPOs are unregulated.
Because they are not a legal or other representative within the meaning of section 29(5) of the 2007 Act, the presidents discerned a world of difference between HOPOs being answerable to the tribunal and being professional advocates. In light of the principles, the interplay between section 29(6) of the 2007 Act and section 51(13) of SCA 1981 is such that HOPOs are not vulnerable to a WCO because “the precondition that they owe, and have breached, a duty or duties to the tribunal, correctly understood, cannot be satisfied.”
Many other points were observable. HOPOs exercise neither a right of audience nor a right to conduct the proceedings on [the Secretary of State’s] behalf and clear and unequivocal statutory language, which is missing, is needed to bring HOPOs within the scope of section 29(5) and (6) of the 2007 Act. Instead, the provisions demonstrate an intention “to subject professional advocates only to the risk of a WCO.”
Under the Carltona principle, the acts of government officials are synonymous with the actions of the minister heading the department. Applying that doctrine, the presidents judged HOPOs to be “indistinguishable in law” from the executive and construed section 29(6) of the 2007 Act to mean that HOPOS do “not conduct proceedings on behalf of the Secretary of State”. Rather, they are “one and the same person” and indeed – somewhat like ECOs – represent “the alter ego of the Secretary of State”. Any attraction to construing HOPOs to mean other representative was held to be “superficial only”. Overall, HOPOs are not vulnerable to a WCO under section 29 of the 2007 Act and they do not have any such vulnerability under rule 9(b) of the 2014 Rules.
The answer to this was less longwinded than the first question. Particular regard needs to be given to words improperly, unreasonably and negligently in line with Ridehalgh as interpreted in Cancino and the “golden rules” in the latter decision are mandatory and need to be applied alertly “in every case”. Nevertheless, as a brownie point for the losers, McCloskey J and Mr Clements firmly rejected the submission that it would never be just to make a WCO against a HOPO because:
42. … This is too sweeping and experience amply demonstrates that absolute rules or principles generally have no place in the United Kingdom legal system.
Similarly, in light of the nature and purpose of a WCO it was clear that the jurisdiction included compensatory, penal and deterrent elements.
WCOs: Procedural/Evidential Requirements
Since time immemorial, requirements under the common law dictate that a party against whom a WCO is in contemplation must know of this and must be provided full details of the case against him and sufficient time and opportunity to respond to the allegations made.
Causation is particularly important in that regard and applying stage two of the three stage Ridehalgh test the allegations made must be causative of the costs unnecessarily incurred by the aggrieved party. “A WCO can never be made” in situations where the causal nexus cannot be shown. The presidents adopted Eder J’s approach in Nwoko v Oyo State Government of Nigeria  EWHC 4538 (QB) where the court held that “it is incumbent upon a party to come before the court with proper evidence to identify what costs have been caused by what deficient conduct” failing which “it is simply impossible for the court” to make sense of things. The presidents said “Amen to that”.
Own Initiative WCOs
In answering the final question, McCloskey J and Mr Clements recalled that – in light of Ridehalgh – except in the most obvious case, the courts should be slow to initiate an inquiry regarding whether or not a WCO should be made. They concluded that “caution and restraint occupy centre stage in the exercise of the own notion power” and this is observable in Presidential Guidance Note No 1 of 2015. The own notion power rests on broad discretion and is best exercised without prescriptive guidance. An analogy with PD46 paragraph 5.7 of the CPR 1998 – connected to answerability to the tribunal and justness and appropriateness – was apposite but only to the extent that it was a “useful” but not “prescriptively exhaustive, gateway.” Finally, in the absence of special circumstances, the own notion discretion was not in play when a party to the appeal has made a WCO application.
HOPOs are very unprofessional people. They are protected by a culture of impunity. Apart from being slippery and deceitful, they follow no code of conduct. Their written work, if any, is very poor and they are extremely poor advocates. This is linked to the fact that they are legally unqualified but still present hundreds of cases annually. To dig their way out of trouble, they constantly wail “we have three million cases” and of course the immigration judiciary ridiculously panders to them to lighten their workload. If the immigration tribunals were really fair and judges did not lead HOPOs by the hand the outcome of many appeals would be radically different. Elevating dodgy HOPOs to an “untouchable” status cannot be a part of the cure and only adds to the atmosphere of plague and disease in the immigration tribunals.
The totally opaque nature of open immigration tribunal proceedings is undeniable. This decision is a resounding statement of the constant pampering given by judges to HOPOs and the unique bond that exists between these two classes of individual. When things get particularly grimy, judges and HOPOs often “discuss” things after hearings behind closed doors in the absence of appellants and their representatives. No one knows what is actually said and done behind closed doors under the pretext of discussing workload.
The whole “specialist” tribunal system seems to function by dispensing artificial and robotic justice which treats appellants as nothing more than the number inscribed on their appeal or perhaps the anonymous letters attributed to their names. Even after a century of “trial and error”, the terms used by the former UK chief immigration adjudicator Geoffery Care to describe the evolution of the system of immigration appeals, justice is rather sick in the home of liberty.
This decision is just another symptom of the broken system of justice operated by the immigration tribunals. Now that they have been let off the hook by the presidents and enjoy near blanket immunity from wasted costs arising out of poor conduct, the emboldened HOPO mafia will undoubtedly descend into new patterns of misbehaviour and set even higher standards of shamelessness by stooping to previously unseen levels of unprofessionalism.
We can say “Amen” to that.
The findings of the presidents are prefaced with the following highlights:
(i) The First-tier Tribunal (“FtT”) is not empowered to make a Wasted Costs Order (“WCO”) against a Home Office Presenting Officer (“HOPO”).
(ii) The relationship of Secretary of State and HOPO is governed by the Carltona principle.
(iii) The answerability of HOPOs to the tribunal is achieved through a range of judicial functions and duties.
(iv) In every case where a WCO is in contemplation common law fairness requires that the respondent be alerted to this possibility, be appraised of the case against him and be given adequate time and opportunity to respond.
(v) While expedition and summary decision making are desirable in WCO matters, the basic requirements of fairness to the respondent must always be respected.
(vi) A causal nexus between the impugned conduct of the respondent and the costs unnecessarily incurred by the aggrieved party is an essential pre-condition of a WCO.
(vii) The tribunal’s “own motion” power to make a WCO is to be exercised with restraint.