As a legal practitioner in Immigration Law for more than 15 years, my experience is that the starting point for the Home Office when deciding an application is: “How can we refuse it?”
The reason for this attitude is two-fold. Firstly, as a ministerial department, the Home Office is implementing the agenda of their political masters, and secondly, because there is no threat of a financial penalty for poor decisions.
Even at court hearings when it is plain to the Home Office advocate (Presenting Officer) that the refusal letter is unlawful, he is not authorised to concede. Instead we have the spectacle of Immigration Judges rolling their eyes at painful closing speeches. The good ones make no representations at all and simply say the single line of: “I rely on the refusal.”
This situation is absurd and would not happen in any court proceedings where there are cost implications for the losing side.
If cost orders were available then this would deter the Home Office from pursuing cases which have little merit. It would also promote better decision making as the Home Office would be reluctant to defend weak and unmeritorious refusal letters.
The present system only allows for the recovery of the appeal fee of £140.
In Immigration Judicial Review matters, (decisions where there is no right of appeal to the immigration tribunal) costs orders are available to a Claimant, and because of this a very small number of cases get to trial. Where permission is granted for Judicial Review (and very often before the court has made a paper decision) The Home Office lawyers in the Government Legal Department agree to a Consent Order agreeing to review their decision, which 99% of the time results in a reversal of the original decision.
I believe therefore, that the introduction of cost orders into immigration appeals is the best way forward and will greatly improve the quality of the decision making process.