Litigation debt - ICS Legal Blog

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Litigation debt

Litigation debt is a debt owed to the Home Office where the court or Tribunal has ordered another party to pay our legal costs. Litigation debt can arise from all types of litigation, including appeals, judicial reviews and private law claims such as unlawful detention.

You must always check whether an applicant owes a litigation debt.

This guidance does not apply to:

  • protection claims (this means decisions on asylum and humanitarian protection claims as well as on protection-based claims under article 3 of the European Convention on Human Rights(ECHR))
  • European Economic Area (EEA) nationals and their family members who apply under the EEA regulations
  • nationality Litigation debt in the Immigration Rules.

A power to refuse applications for entry clearance, leave to enter or leave to remain on the basis of litigation debt was added to the Immigration Rules and applies to applications made on or after 6 April 2016. You must not apply this rule to any applications made before 6 April 2016. You must take account of all litigation debts, including those accrued before 6 April 2016, when considering an application made on or after 6 April.

Considering refusal

Once you have confirmed that the litigation debt is still outstanding, you must consider whether to refuse the application on this basis. If the person has not yet fully paid off the debt but the Litigation Finance Team (LFT) confirm they have entered into an arrangement to pay it off in instalments and the person is paying as agreed, you must not take the debt into account when considering the application.

If the person agreed to pay by instalment but then failed to start making payments, missed payments or stopped paying, LFT will reassess the debt. LFT will confirm to you whether the debt is again outstanding and must therefore be taken into account when you contact LFT to check whether the debt is outstanding. If you decide to grant the application despite the litigation debt, this does not mean that the debt is written off. It is still a debt.

The Home Office expects all litigation debts to be paid. All routes except appendix Armed Forces or family and private life Although you should normally refuse an application, you must consider whether refusal is reasonable, taking account of all relevant factors in the case. You must take account of the evidence and information provided by the applicant with their application and any information provided by LFT when they confirm that the debt exists. You must consider the case for exercising discretion in the round, taking account of all relevant factors, such as: How the debt was accrued.

You must consider how the litigation debt was built up and the conduct of the applicant in bringing the litigation. It would rarely be appropriate to exercise discretion in circumstances where the debt was built up from repeated and unmeritorious litigation. Example 1 The applicant accrued a litigation debt by bringing unsuccessful judicial review (JR) proceedings in an attempt to frustrate their removal from the UK. The JR was found by the court to be totally without merit. It would rarely be appropriate to exercise discretion in such a case.

If you are unsure and need further information, contact our team on 0207 237 3388 or e-mail us on info@icslegal.com.