The Home Office appears to be stepping on the Ministry of Justice’s toes by consulting on extending fixed recoverable costs in immigration judicial reviews, public law specialists have suggested.
Priti Patel’s department says it is rarely able to recover costs in immigration-related JRs and wants them to fall under the scope of fixed recoverable costs, which would specify the amount that the winning party can recover. The proposal appears in the Home Office’s New Plan for Immigration consultation, which largely ran at the same time the Ministry of Justice was consulting on proposed JR reforms.
Responding to the Home Office’s consultation, which closed last week, research and strategic litigation group Public Law Project (PLP) said: ‘We are unclear why these proposed changes are being consulted on by the Home Office while there has recently been the Independent Review of Administrative Law, established by the Ministry of Justice, and the government is simultaneously consulting on judicial review reform. This is particularly worrying given that the IRAL noted there was a need for “coherence in constitutional change”.’
PLP added that the Ministry of Justice does not propose reforming the law on costs.
The Home Office told the independent review that it spent over £75m in 2019/20 on immigration and asylum JRs and associated damages claims, but recovered £4m in costs ‘much of which will be written off in future years given the difficulty in recovering debts from those who bring such challenges’.
Public Law Project said the Home Office has powers to deal with the non-payment of litigation debts in immigration cases. The Ministry of Justice also consulted on extending fixed recoverable costs in civil cases in 2019, following Sir Rupert Jackson’s review of civil litigation costs, stating that it intended to introduce costs budgeting for ‘heavy’ judicial reviews.
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