FM (Afghanistan) & Ors, R (On the Application of) v Secretary of State for the Home Department

Ms Galina Ward, on behalf of the applicants, submits that the approach taken by the deputy judges is inconsistent with authority, in particular the decisions of this court in R (on the application of Bahta) v SSHD [2011] EWCA Civ 895 and M’s case. In those cases, this court held that it had jurisdiction to consider an appeal on cost orders made on the basis of written submissions, and that the general rule in civil litigation that a successful party will obtain all the relief sought, whether by consent or after a contested hearing, and was entitled to have its costs paid by the unsuccessful party unless there was good reason to the contrary, applied in the administrative court.

This approach replaced the previous default position, established in R (Boxall) v Waltham Forest London Borough Council (2000) 4 CCLR 258. In M’s case, that position was distinguished from a second and third category of cases. The second category was where a claimant only succeeded in part following a contested hearing, or pursuant to a settlement. The third category consisted of those cases in which there has been some compromise which does not actually reflect the claimant’s claim.

Since the departure from Boxall, this court has considered the question of costs in judicial review and in statutory appeals from the Upper Tribunal Immigration and Asylum Chamber, in a number of cases. Apart from the two cases I have mentioned, there is AL (Albania) [2012] EWCA Civ 710, KR [2012] EWCA Civ 1555, and Emezic (2013) 5 Costs LR 685. Since in Bahta’s case, this court encouraged parties to decide matters without a hearing where this was possible, and the Administrative Court now generally determines costs on the papers, it is clearly arguable that the reason given for refusing permission leaves litigants such as these in an impossible position, if the judge determining costs refuses to make an order. Since the Secretary of State refuses in many cases to agree to the payment of costs, even where claimants have succeeded in obtaining the relief sought, they would be forced, contrary to the general practice of the Administrative Court, to seek an oral hearing for this. That would, in itself, be a disproportionate use of court resources, and indeed the resources of those representing both parties, often both sides ultimately funded by the hard-pressed tax-payer.

The reluctance of the court to grant permission to appeal in costs cases is well known. What must be shown is that the judge has either erred in principle in his or her approach, or has left out of account or taking into account a feature that he or she should or should not have considered, or has reached a Wednesbury unreasonable decision. I accept Ms Ward’s submission that there is a real prospect that in these cases, the court will conclude that the detail shows that the deputy judges who dealt with the costs below, mis-categorised the nature of the case, and adopted the wrong starting point, or took into account irrelevant matters. They have done this despite the considerable guidance given to judges sitting in the Administrative Court by this court as to how to approach costs in such cases.

The appeals will therefore, also provide this court with the opportunity to provide further guidance and indeed direction to judges and deputy judges of the Administrative Court as to the circumstances in which it would be appropriate to deprive a successful claimant of his costs, following the settlement of the claim for judicial review. In FM’s case, the issue concerned the condition in the grant of leave that the claimant not have recourse to public funds, which condition was not accepted by the claimant, and which was removed after proceedings were issued.

The argument on behalf of FM is that the deputy judge erred in considering that the terms of the Secretary of State’s response to the letter before claim put FM on notice that the provision of further evidence to support the factual case he was making would have made any difference. Moreover, Ms Ward relies on the fact that the Secretary of State’s first acknowledgement of service stated that the Secretary of State’s change of position was due to the evidence of destitution submitted by the claimant in correspondence, rather than the evidence provided, together with the claim form.

The Secretary of State’s decision stated that the application had been refused because the claimant was not on asylum support prior to it. That was contrary to a recently introduced policy which made it clear that the test was destitution. Moreover the terms of the correspondence prior to the issue of proceedings do not suggest that the Secretary of State was challenging the claimant’s evidence about destitution. She appeared to be proceeding upon the basis that there was no asylum support paid in the past, rather than that it was not accepted that the claimant would be destitute if not allowed to have recourse to benefits. I therefore accept Ms Ward’s submission that there is a reasonable likelihood that the court will find that this costs order was made on false factual basis that the Secretary of State had doubted the veracity of the claimant’s evidence about destitution prior to the issue of proceedings.

The judges in the two other cases considered that they were within the third category in M’s case when Ms Ward submits it is clear they fell within the first category, cases in which the claimant should be awarded costs in the absence of a good reason to the contrary. She submits that the judges therefore took the wrong starting point. The starting point in cases in the first category is that costs should be awarded, but in both cases the judges treated the starting point as the Boxall default position of no order. In SM’s case, what the claimant had sought in particular was an in-country right of appeal. He obtained that as a result of the consent order which provided for the making of a fresh decision, which attracted such an appeal. The Secretary of State’s submission that she changed her mind as a result of a point that was raised too late, might, Ms Ward conceded, be a reason for refusing an order for costs, but she contends and I find that it is arguable that it does not affect the categorisation of the case.

In AM’s case, the issue was AM’s mental condition, and whether he posed a risk of suicide. The argument was that he should not be removed, because pending the judgment then awaited in HM (Iraq), there was a question about the safety of returns, and also, because of his Article 3 claim, based on the risk he posed of suicide. After permission was granted, the Secretary of State agreed to consider further medical evidence and to make a fresh decision, that would attract an in-country right of appeal.

The Deputy Judge concluded that the case fell within the third category for two reasons. First, the new medical report from Dr Katona had not been available when the challenged decision had been made. Secondly, it did so in view of the comments made by Sir Richard Buxton when granting permission to appeal and permission to apply for judicial review. But Sir Richard Buxton had granted permission on the evidence as it was before Dr Katona’s medical report. While a change of position by the defendant in response to new evidence may be a reason to deprive the claimant of costs in some cases, again, Ms Ward submits, it does not affect the categorisation of the claim. Again, I have concluded that she meets the test in CPR Part 52, in respect of this case. Her argument was that, in this case, that factor was not a reason to deprive him of costs, because the later report bore out the concerns that arose from the nurse’s notes, upon which Sir Richard Buxton gave permission, although, as Sir Richard Buxton observed, those notes gave out a mixed message.

For these reasons I grant permission in these cases, which should be heard together. They should be heard before a constitution of three, one of whom may be a puisne judge, and one of whom must be a judge with immigration law experience. Thank you.