Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Heard at Field House
Heard on: 9 November 2005
Prepared : 11 November 2005
Mr R Chalkley
Senior Immigration Judge
Ms C Jarvis
Senior Immigration Judge
The Secretary of State for the Home Department
For the Appellant: Mr J Adler of Counsel instructed by Gupta and Partners. Solicitors
Costs orders: This case is reported for what we say about the restrictions on the power of the Tribunal to make section 103D orders. No order may be made unless an appellant is represented by a supplier acting pursuant to a grant of Legal Representation. It is the duty of a legal representative to ensure that an appellant has the benefit of all public funding to which he may be entitled.
DETERMINATION OF APPLICATION FOR A FUNDING ORDER
1. The Appellant applies for a funding order pursuant to Rule 33 of the Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2005, and Regulation 6(3) of the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 (the CLS Regulations).
2. The Appellant, who is from Kosovo, applied for asylum as a separated child. He was not recognized as a refugee but was granted exceptional leave to remain until the day before his eighteenth birthday. He applied, in time, for further leave which was refused. The Appellant appealed against the decision of an Immigration Judge (Mr P A Grant-Hutchison), who in a determination issued on 27 July 2005, dismissed the Appellant’s appeal against the Respondent's decision made on 26 May 2005 to refuse to vary leave to enter as a refugee or on other human rights grounds.
3. The Senior Immigration Judge, when making an order for reconsideration on 8 August 2005, stated that it was arguable that the Immigration Judge had materially erred in law in that he had misdirected himself in law in relation to the question whether there is a sufficiency of protection available to the Appellant following the guidance of the House of Lords in Horvath v SSHD  INLR 239 HL. In particular, there was before the Tribunal, at all material times, evidence from UNHCR which appeared to place those similarly situated to the Appellant into categories of persons considered to be at real risk in Serbia and Montenegro.
4. At the hearing, after receiving argument from both parties, we found that the Immigration Judge had fallen into material error of law. We went on to fully reconsider the matter and we found in favour of the Appellant on both refugee and human rights grounds. Mr Adler then made application for a funding order. We noted that there had been no application made within the body of the application for an order for reconsideration (form AIT/103A). At Part D of that form the question is posed: ‘Is an order for costs sought under S.103D of the Nationality, Immigration and Asylum Act 2002? In this case the word ‘yes’ has been deleted. The note below, which is part of the form, states that : “if an order for costs is sought you must answer ‘yes’ to ensure that consideration is given to whether or not an order should be made”.
5. Mr Adler explained that the form had been completed in that way because the Appellant did not have the benefit of Community Legal Service (CLS) Funding at the time when the application for review was lodged.
6. We took the view that the fact that the application for a funding order had not been made in the application form was not fatal as it is clear from the case of RS (Funding – meaning of ‘significant prospect)  UKAIT 138, that where an application for review is successful and reconsideration is ordered, an application for funding under s103D(3) may be made at any time up to the end of the substantive reconsideration of the appeal. But where the application for review was made by a legal representative rather than the Appellant in person, there will need to be a cogent explanation why the application for funding was not specified at the outset on the form AIT/103A.
7. We note that the Tribunal also found that in the majority of cases which are unsuccessful on reconsideration, funding will nevertheless be ordered because there was, at the time when the review was sought, a significant prospect that the appeal would be allowed on reconsideration. Reconsideration would not have been ordered at all unless the Senior Immigration Judge dealing with the review had thought that there was a real possibility that the Tribunal would decide the appeal differently on reconsideration.
8. We enquired of Mr Adler as to why the Appellant did not have the benefit of CLS funding at the time of the application and, more importantly, as to why, when an order for reconsideration was made on 8 August 2005, the Appellant’s solicitors did not at that stage fully review the matter and apply for CLS funding at that stage, assuming the Appellant to be otherwise eligible. (We note that the Appellant has been in paid work whilst in the UK with modest earnings). Mr Adler stated that the Appellant had been funding his case privately and he was unable to provide satisfactory clarification based upon the instructions that he had received. Mr Adler confirmed that he had been instructed to appear before us on a private client basis and that the Appellant still did not have the benefit of CLS funding. He had made his application for a funding order only after learning at the hearing that the outcome was in favour of the Appellant.
9. We note that the Solicitors’ Costs Information and Client Care Code 1999 (as last amended on 9 March 2004), has this to say in relation to the financing of a matter:
Client's ability to pay
2…(j) The solicitor should discuss with the client how and when any costs are to be met, and consider:-
(i) whether the client may be eligible and should apply for legal aid (including advice and assistance)…’
10. We were concerned, although it is unclear, about the possibility that the Appellant may have been financially disadvantaged from the time of preparing the application for a review, and certainly from the time that the order for reconsideration was made. It appeared to us, and we indicated as much to Mr Adler, that in the circumstances, it was for the solicitors to check the Rules and Regulations applying to CLS and to professional conduct, and to advise the Appellant accordingly. Where a solicitor does not do publicly funded work, that advice would include advising the client of his or her entitlement or potential entitlement, to assistance in the form of public funding, and as to how to go about obtaining the benefit of that service.
11. We note that pursuant to the LSC Guidance and Funding Code, a case in which the prospects of success are ‘borderline’ would appear to be a case that passes the lowest merits test to enable a case to proceed with the benefit of CLR. This applies, among others, to cases which have overwhelming importance to the client. It appears to us that a refugee or human rights appeal, such as the instant case, would be a case of such importance. In this type of case, if the prospects of success are not over 50%, then a judgment must be made as to whether the prospects of success should be categorized as borderline or poor. The difference between these two categories cannot be expressed in precise percentage terms. A case may be regarded as having borderline prospects of success if the client has a good arguable or prima facie case which should be put before the court, even though because of disputes of fact, or law or expert evidence it is not possible to say that the legal prospects of success are over 50%.
12. Given the guidance of the Tribunal in the case of RS which we have summarized above, and applying that guidance to the relevant facts and circumstances of this case, even as found by the first Adjudicator; it seems to us that the Appellant’s case was one which was at all material times a good deal stronger than borderline.
13. Turning to the provisions of the CLS Regulations 2005, and in particular Regulation 4(1), we note the restrictions on the power of the Tribunal to make section 103D orders, there set out:
“The High Court or the Tribunal shall only make a section 103D order in immigration review proceedings where an appellant is represented by a supplier acting pursuant to a grant of Legal Representation.”
14. Mr Adler was unable to take us to any provision that showed that despite Regulation 4(1) we could nevertheless make the order sought. In all the circumstances, in the light of the fact that neither Gupta and Partners nor Mr Adler is shown to be ‘a supplier acting pursuant to a grant of Legal Representation ‘ we find that there is no power in the Tribunal to make the funding order sought. The Appellant’s application for a funding order is therefore refused.
15. For the above reasons we make no order on the Appellant’s application for a funding order.
Senior Immigration Judge
Date: 16 November 2005