KR, R (on the application of) v Secretary of State for the Home Department

This court is becoming familiar with appeals in relation to disputes over costs between the Secretary of State and claimants or appellants in immigration cases which have been settled. I use “immigration cases” in the broad sense of those words. In the recent past, the court has given guidance on a number of occasions. So far as judicial review cases are concerned, guidance was given in Bahta v SSHD [2011] EWCA Civ 895, and M v London Borough of Croydon [2012] EWCA Civ 595. So far as statutory appeals from the Upper Tribunal are concerned, guidance was given in AL (Albania) v SSHD [2012] EWCA Civ 710. There is a degree of cross-reference as between the two jurisdictions, as the judgments in those cases made clear. What the world of immigration practice does not need now is another formulation of guidance by this court. We are concerned with the costs of a settled judicial review application. The matter falls to be considered by reference to the authorities to which I have just referred. I do not propose to set out extracts from the judgments in those cases.

It is in one sense surprising that we are hearing this case at all, because since permission was granted to the appellant to appeal to this court, the Treasury Solicitor on behalf of the Secretary of State proposed a consent order in which she would pay the appellant’s reasonable costs of this appeal and of the judicial review proceedings, on a standard basis. She later withdrew that offer in circumstances which are not wholly clear to us.

It is necessary to say a little about the facts of the case. The appellant is a Jamaican woman, who came to this country in 2002 when she was almost 17 years of age. She spent a long time as an illegal overstayer, and in fact made an unsuccessful application and pursued an unsuccessful appeal on asylum grounds during that period. I shall come back to that. For the moment, the story can be picked up in 2010 and 2011. At that time, the appellant was still living with the aunt, to whom she had gone on arrival in this country. She was in a relationship with a man, and in due course in 2010 she made an application on asylum and human rights grounds for leave to remain in this country.

In a long letter dated 6 January 2011, the Secretary of State refused her applications. What is important for present purposes is that she certified both claims under section 94(3) of the Nationality, Immigration and Asylum Act 2002 as being “clearly unfounded”. Such a certificate denies the applicant an in-country right of appeal. That refusal letter came to the notice of the appellant on 6 January 2001, whereupon she was detained. At that stage no removal directions had been issued. On 18 January she instructed her present solicitors. On 25 January 2011 the Secretary of State set removal directions for removal to Jamaica on 7 February. The appellant’s solicitors filed an application for judicial review on 3 February 2011. The application referred to the certification and the proposed removal without an in-country right of appeal. There had been no communication between the solicitors and the Secretary of State or the Treasury Solicitor prior to the filing of the application for judicial review.

The Secretary of State filed an Acknowledgment of Service on 15 February 2011. In it, she robustly defended the certificate to the point of asserting that the application was totally without merit, and requesting the court so to state. On 17 February 2011 Supperstone J granted permission to apply for judicial review, not in relation to the certification of the asylum claim, but in relation to the human rights claim. By a letter dated 25 February 2011 the Secretary of State proposed to settle the judicial review proceedings by conceding that the appellant was entitled to an in-country appeal in respect of her Article 8 claim. At that stage she made no offer to pay the appellant’s costs. What occurred was that a consent order was eventually agreed and signed on 14 March. It was later approved by the court, and it provided that the issue of costs be resolved by way of written submissions, as often happens in cases such as this.

Written submissions were lodged on behalf of the parties, and on 6 October 2011 Mitting J made an order that there be no order for costs. Paragraph 1 of his order, under the heading “Reasons”, was in the following terms:

“1.

It would not be just to order the defendant to pay the claimant’s costs, for the following reasons:

(i)

The challenge was to the decision to set removal directions on 25 January 2011. When set, the removal directions were lawful. She had no leave to remain. The refusal of her application for asylum on 22 December 2010 and the subsequent certification of her claim on 6 January 2011 lifted any legal bar to her removal. There was no challenge before the issue of the claim to the refusal of asylum and/or certification.

(ii)

The claimant did not comply with the pre-action protocol.

(iii)

A significant part of the claim -- the challenge to the certification of the asylum claim -- failed.

(iv)

The grounds of claim omitted a significant fact which must have been known to the claimant: that she had exercised a right of appeal to an immigration judge against the defendant’s refusal to vary leave to remain on 15 July 2003.”

In two subsequent paragraphs, Mitting J proceeded to make no order for costs in relation to a wasted costs application which had been made by the appellant, which application he plainly thought to be an inappropriate one.

The appellant then sought permission to appeal to this court. She was granted permission by Sullivan LJ on 19 January 2012. Sullivan LJ gave detailed reasons for his grant of permission and described the appellant’s case on costs as “strongly arguable”. That is probably why initially the Secretary of State proposed a settlement on terms advantageous to the appellant. Nevertheless, that having not eventuated into an actual settlement, the appeal is now to be resolved by us.

The starting point in this, as in any other costs case, is CPR 44.3, whereby the court has a discretion as to whether costs are payable by one party to another. The general rule, CPR 44.3(2), is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order. In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including the conduct of the parties and whether a party has succeeded on part of his case even if he has not been wholly successful. The conduct of the parties includes conduct before as well as during the proceedings, and in particular the extent to which the parties follow the Practice Direction on Pre-Action Conduct or any relevant pre-action protocol. The conduct also includes whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, the manner in which a party has pursued or defended his case and whether he has wholly or partly exaggerated his claim. These are the details of the provisions set out in CPR 44.3.

It is common ground, and we have well in mind, that before we could interfere with a costs order, we would have to be satisfied that the judge below had either erred in principle in his approach, or had left out of account or taken into account some feature that he should or should not have considered, or that his decision is wholly wrong because he has not balanced the various factors fairly in the scale (see AEI Rediffusion Music Limited v Phonographic Performance Limited [1999] 1 WLR 1507).

With all that in mind, I turn to the question whether it can be said that Mitting J fell into error in any of those ways in this case. Of the four reasons he expressed for his decision to make no order for costs, the first may not be wholly correct. He said that the challenge was to the decision to set removal directions, whereas in truth it was principally to the certification. I propose to say no more about that at this stage, because it seems to me that far more turns on the second and third reasons he gave. It is true that there was no compliance whatsoever with the judicial review pre-action protocol.

On behalf of the appellant, Mr Jacobs seeks to circumnavigate that by pointing out that the protocol itself states (in paragraph 6):

“This protocol will not be appropriate in urgent cases, for example, when directions have been set, or are in force, for the claimant's removal from the UK, or where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so (for example, the failure of a local housing authority to secure interim accommodation for a homeless claimant) a claim should be made immediately. A letter before claim will not stop the implementation of a disputed decision in all instances.”

As I have said, this is not simply a challenge to removal directions as such. It is a case in which there was plainly a degree of urgency, but on the chronology as I have set it out, it seems to me that it would have been possible for the solicitors to communicate by letter, or certainly electronically, with the Secretary of State or the Treasury Solicitor before issuing the application. The solicitors had commenced to act on 18 January. Even if it can be said that the urgency was less before the setting of removal directions on 25 January, there still remained 13 days before the actual date set for removal on 7 February.