SM (Afghanistan) v The Secretary of State for the Home Department

This is an appeal against the order of HHJ Oliver-Jones QC (“the judge”) sitting as a High Court Judge dated 19 July 2014 by which the judge ordered that there should be no order as to costs in judicial review proceedings which were resolved by consent between the parties. The issue raised on this appeal is solely concerned with the appropriateness of that costs order in the circumstances of this case.

The Appellant was born in Afghanistan on 22 June 1993 and is now 24 years old. He claimed that his father was killed by the Taliban, and that he was kidnapped and detained by them. He claimed that he escaped, evaded capture, and arrived in the United Kingdom as an unaccompanied minor aged 13 in September 2006.

The Appellant then applied for asylum in this country in February 2007. The Secretary of State on that occasion accepted that the Appellant’s father had been killed, albeit not by the Taliban. He was considered to be too young to be at risk of recruitment by the Taliban and it was determined by the Respondent that the Appellant could relocate to Kabul without being at risk of serious harm. The asylum claim was therefore rejected. The Appellant was, however, granted discretionary leave to remain for three years, until 20 February 2010.

On 18 February 2010 the Appellant made an application for an extension of his discretionary leave. The Appellant made asylum, humanitarian protection and Art. 8 European Convention Human Rights (“ECHR”) claims on the basis that he faced real risk on return as an unaccompanied Afghan child; and on the basis that he had established a private life in the United Kingdom.

Because that application by the Appellant was made before the expiry of his extant discretionary leave to remain, he continued to remain in this country lawfully because of s.3C Immigration Act 1971 (as introduced by s.3 Immigration and Asylum Act 1999), which states in so far as is material:

In March 2010 the Respondent wrote to the Appellant informing him that his case was in the backlog of older asylum applications for determination. Following delays, a further period of discretionary leave was granted to the Appellant on a discretionary basis outside of the Immigration Rules on 27 September 2011 until 27 February 2014.

Jumping forward in time briefly, on 20 February 2013, the Appellant had accrued six years’ leave to remain in this country, qualifying him for settlement in this country. This, as will become apparent later, is relevant to how the Appellant’s claim unfolded.

By his letter before claim dated 14 December 2011 the Appellant invited the Defendant to:

The Appellant’s claim form was dated 5 September 2012. The decision challenged was the “failure to determine [the Appellant’s] asylum claim and/or trace family members in country of origin” (Section 3). The remedy sought (Section 6) was aimed, primarily, at achieving a grant of indefinite leave to remain (“ILR”) in the United Kingdom:

In his detailed statement of facts and grounds dated 31 August 2012 the Appellant sought a mandatory order requiring the Secretary of State to: (i) endeavour to trace the Appellant’s family members; and (ii) to complete an examination of the Appellant’s renewed asylum claim of February 2010. In the alternative, the Claimant sought a mandatory order requiring the Secretary of State to complete her examination of the Appellant’s renewed asylum claim of February 2010 in accordance with the duty imposed on the Secretary of State under r.333A Immigration Rules.

Permission to apply for judicial review was refused on the papers by HHJ Purle QC (sitting as a Deputy High Court Judge) by order dated 12 November 2012.

The proceedings were stayed by Kenneth Parker J (before whom the matter was listed) at the oral renewal hearing on 16 May 2013 pending the decision of this Court in TN (Afghanistan)[2013] EWCA Civ 1609 (in which Mr Bedford and Mr Malik appeared together for the appellants). The case was finally determined by the Supreme Court in its judgment reported as R. (on the application of TN (Afghanistan)) v Secretary of State for the Home Department[2015] UKSC 40, [2015] 1 WLR 3038.

Following the paper refusal of the Appellant’s application for permission to apply for judicial review, on 21 December 2012 the Secretary of State lodged an acknowledgment of service which stated (at Section C, the summary of the grounds for contesting the claim) that:

It was the Appellant who first raised the possibility of the Appellant being awarded ILR under the Secretary of State’s Asylum Policy Instruction on Discretionary Leave by letter dated 13 February 2013. In that letter the Appellant’s solicitors asserted that:

The Appellant in that letter also sought the costs of the proceedings to date as the Secretary of State had conceded part of the relief claimed. This was rejected by the Secretary of State by her letter dated 8 March 2013 on the basis that she did not accept that the Appellant had six years’ leave at the time that discretionary leave to remain was granted and that, in any event, there was no right to ILR after six years’ discretionary leave, only a right to apply for ILR.

By email dated 27 January 2014 the Respondent’s case worker at the UK Border Agency sent an email to the solicitors for the Appellant providing written confirmation of a previous discussion. That email stated that, if the Appellant were to agree to withdraw his asylum claim, then the Respondent would implement a grant of ILR:

The email was silent as to what those “exceptional circumstances” were, and noted that there was no obligation upon the Appellant to accept; and that he was free to pursue the asylum claim.

The Appellant agreed to these terms via a letter sent by his solicitors to the Respondent dated 12 February 2014. That letter indicated the Appellant’s wish to accept the grant of ILR in exchange for his withdrawing his asylum claim. The Appellant submitted a signed “declaration of withdrawal of asylum/humanitarian protection/human rights claim”, dated 12 February 2014.

On 31 March 2014 the Respondent sent the Appellant a letter notifying him of a grant of ILR. No (additional) reasons were given for this, save for stating that the Appellant’s claim “has been reviewed and you [the Appellant] have been granted indefinite leave to remain in the United Kingdom”.

The consent order settling the judicial review claim was sealed on 16 May 2014. That consent order ordered that the Appellant had permission to withdraw his claim for judicial review. By an order sealed on 16 May 2014 the Appellant by consent withdrew his claim for judicial review. This was on the basis that he would be granted indefinite leave to remain due to the exceptional circumstances of his case.

The order of May 2014 however left open the question of costs and invited further submissions setting out which of the three categories identified by this Court in M v Croydon LBC[2012] 1 WLR 2607, [2012] EWCA Civ 595 (Lord Neuberger MR, and Hallett and Stanley Burnton LJJ) was applicable.

The Appellant applied for his costs, on the basis that the Appellant had obtained the relief which he had sought in full; and submitted that there was no exceptional basis on which he was not entitled to his costs. The Appellant in his schedule of costs for the Administrative Court proceedings puts his costs at £8,770. The Appellant submitted that he had been wholly successful and was therefore entitled to 100% of his costs.

The Respondent, however, submitted that the appropriate order was that there should be no order as to costs on the basis that the Appellant had resisted attempts to settle the case, the Respondent having offered to reconsider her decision. The Respondent also submitted that no pre-action letter was received and that her decision to grant indefinite leave to remain was a pragmatic decision reflecting the fact that the Appellant had accrued six years of s.3C Immigration Act 1971 leave by dint of the repeated delays in the resolution of the Appellant’s case.

The matter came before HHJ Oliver-Jones QC on the papers. The judge accepted the submissions of the Secretary of State and determined that there should be no order to costs on the basis that the Appellant had been granted indefinite leave to remain by virtue of having enjoyed 6 years of discretionary leave.

It is this decision with which this Court is now concerned. Permission to appeal was refused on the papers by Floyd LJ by his order dated 7 March 2015. Permission to appeal was latterly granted by Rupert Jackson LJ upon oral renewal in January 2016.

The sole ground of appeal addresses the judge’s costs order. The Appellant submitted that the judge was wrong to hold that the case fell within the third category identified by this Court in M v Croydon LBC in that the Appellant had succeeded in whole or in part in obtaining the relief that he had sought by his claim for judicial review.

Lord Neuberger of Abbotsbury MR (as he then was) in M v Croydon LBC set out three broad categories of claims for costs which arises where a claim for judicial review has been settled:

Mr Bedford, who appeared below for the Appellant and continues to appear for him before the Court of Appeal, submitted that by his statement of case within the judicial review proceedings dated 31 August 2012, the Appellant sought a grant of ILR; or, in the alternative, consideration of whether the Appellant should have been granted indefinite leave to remain as corrective leave; or, in the further alternative, that the Secretary of State should be ordered to complete an examination of the Appellant’s renewed asylum claim made in February 2010.

This, Mr Bedford submitted, is what was ultimately achieved by the Appellant as a direct consequence of the consent order (by which the judicial review claim was withdrawn) that was made in May 2014. Mr Bedford accepted that the consent order made no specific reference to the basis upon which the withdrawal would be agreed to, but nonetheless submitted that the grant of ILR was a concession to the claim.

On 27 January 2014 the Secretary of State sent an email to solicitors for the Appellant indicating that the Appellant would be granted indefinite leave to remain on the basis of the “exceptional circumstances” of the case. The Appellant accordingly submitted that the relief obtained was substantially the same as that sought. This was the only indication of the Secretary of State’s intent. Mr Bedford submitted that, had the Secretary of State chosen to rely upon the accumulation of six years’ discretionary leave (as she later did in her costs submissions), then she would have said so in the period preceding the making of the consent order. Mr Bedford submitted that the Appellant had no indication that the Secretary of State would take the point in her submissions on costs. He submitted that it cannot be just to allow the Respondent to rely upon reasons which were not given until the question arose in relation to costs.

Accordingly, in response to a question from the Bench, Mr Bedford submitted that the Secretary of State’s later submissions in this regard were irrelevant and that the proper approach for the court was to adopt an objective assessment of the state of mind of parties who settle judicial review proceedings, rather than a subjective assessment. He drew the analogy with a compromise agreement, and emphasised that it was the Secretary of State’s actions and conduct that should fall for assessment. Mr Bedford did not go so far as to say that the Secretary of State should be precluded from making retrospective submissions in respect of her reasons for agreeing to grant the Appellant ILR, but he did contend that more was required than unsupported assertions.

Mr Bedford initially sought to submit that evidence would be required to lend credence to such argument, but conceded, in response to a question from Singh LJ, that evidence would not be required and that both the Court and persons in the position of the Appellant would have to rely upon the Secretary of State’s duty of candour to ensure that issues of dispute could be properly argued by the parties and fairly addressed by the Administrative Court.

During submissions Mr Bedford was asked why the Appellant had not filed submissions in response to those of the Secretary of State. The facts were that the Appellant had filed his submissions on costs in response to the May 2014 consent order on 22 May 2014; the Respondent had filed submissions on 29 May 2014. As the order in respect of costs was not made until 19 July 2014, it would have been possible for the Appellant to file submissions in response. Mr Bedford responded that the consent order made provision for a decision after the Secretary of State had filed her submissions and that there was no provision within that order for the making of supplementary submissions. He submitted that the issue in dispute (the correct categorisation of the case under the M v Croydon LBC principles) was narrow and that it would have been disproportionate to exchange submissions indefinitely. He submitted that the Appellant had viewed the appropriate remedy once the costs order had been made as being an appeal to this Court.

This case, Mr Bedford concluded, was a category (i) case in which the Appellant had succeeded on the whole of his claim and should have been entitled to the entirety of his costs in the proceedings below.

Mr Malik, who appeared for the Secretary of State, began his submissions by producing a document dated 13 February 2014. This document was an internal Home Office document which set out that the Respondent’s UK Border Agency case worker had decided to make a “discretionary grant of indefinite leave to remain in the United Kingdom to [the Appellant]”. That document states under the heading “consideration”:

Mr Malik submitted that the Appellant had had months to consider and respond to the points raised by the Secretary of State’s submissions on costs. Whilst Mr Malik conceded that the Appellant had not had sight of this document, he submitted that it would have been shown to the Appellant had it been requested. He submitted that the Secretary of State was of the view that it was common ground that the Appellant was being granted ILR on the basis that he had acquired six years’ discretionary leave. He said that this was apparent from the Appellant’s own submissions prepared for the oral renewal of the Appellant’s application for permission to appeal before Jackson LJ. Mr Malik also relied upon a “declaration of withdrawal of asylum/humanitarian protection/human rights claim” signed and dated 12 February 2014 as showing that the Appellant understood that the grant of ILR was on the six years basis, which accrued to him on 20 February 2013. Accordingly, Mr Malik submitted that the Appellant could have applied for ILR at any point after that date, and that he should have waited until he could have made that application. The Appellant’s asylum and other claims were always doomed to fail and it was clear that the SSHD was relying on that long-standing position in order to justify the grant of ILR on the six years basis.

It was this view of what was believed to have been “common ground” Mr Malik submitted, why no evidence had been relied on by the Secretary of State in her costs submissions to support this contention: it was simply “obvious” that this was the basis upon which the Respondent was granting the Appellant ILR.

Mr Malik further submitted that the reference to “exceptional circumstances” in the Secretary of State’s email dated 27 January 2014 is a reference to her policy on Discretionary Leave. A copy of that policy was provided to the Court. That policy explains that discretionary leave is a species of entitlement to remain in the United Kingdom that is granted outside of the Immigration Rules and that it is not granted where a person qualifies for asylum or humanitarian protection. The document specifies (at §1.1, bullet point 3) that “[discretionary leave] may be granted in cases where there are exceptional circumstances to justify doing so”. Mr Malik relied upon a passage in the section entitled “transitional arrangements” which applies to cases like this one where a decision is made on discretionary leave on or after 9 July 2012. That document states that:

Mr Malik submitted that there had been no change of the exceptional circumstances which prevailed at the time of the Appellant’s arrival in the United Kingdom from Afghanistan as an unaccompanied minor. Whilst Mr Malik accepted that he could not point to a document that set out what those exceptional circumstances were in this case, he suggested that they would include, as a generality, a person’s age, their strength of connection with this country, their length of residency and their degree of settlement.

Mr Malik submitted that there were thus three reasons why the appeal should fail. First, the appeal should be dismissed unless it could be demonstrated that the judge’s decision in respect of costs was an improper exercise of discretion. It would be an inappropriate approach for the Court of Appeal to reconsider the matter afresh unless this was the case, and there was no basis for the Court to do that in this instance.

Second, Mr Malik submitted that for the Appellant to succeed in overturning the judge’s order it would be necessary for him to demonstrate that this was a category (i) case. If it was considered to be a category (ii) or (iii) case then the Appellant could not expect to recover his costs via an inter-party costs order. Mr Malik relied upon the judgment of this Court in R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853 in which Lloyd Jones LJ (as he then was) said at §57:

In the cases considered by the Court of Appeal in Tesfay, the claims and submissions of the Appellants in those cases were eventually vindicated by the judgment of the Supreme Court in EM (Eritrea) v. Secretary of State for the Home Department [2014] UKSC 12, [2014] AC 1321: see Tesfay at §58.

In this case, Mr Malik submitted that the Appellant’s submissions were not vindicated. As I have already said, this case was stayed at first instance pending the determination of this Court in TN (Afghanistan). Mr Malik took us back to the Appellant’s judicial review claim form, where he had sought (at §1 and §2 of section 6 (see §9 above)) a grant of ILR on the basis of settlement since 2007; and a grant of ILR on the basis of “corrective leave”. Mr Malik submitted that it cannot be said that the Appellant obtained either of those things; and that, as far as the claim made at §3 (that the Appellant’s 2010 asylum claim be considered) was concerned, the Appellant had voluntarily withdrawn his asylum application.

In respect of the application for corrective leave, Mr Malik submitted that the principle of “corrective leave” was no longer good law. The principle, which flowed from the judgment of Pill LJ (with whom May LJ agreed) in R (Rashid) v Secretary of State for the Home Department [2005] EWCA 744, [2005] Imm AR 608, was that the court could make a declaration that a person was entitled to ILR on the basis of the “startling and prolonged” failures of the Home Office (§13).

Mr Malik submitted that this principle was overruled by the Supreme Court in TN (Afghanistan) (at §§70-72 of Lord Toulson JSC’s judgment, which was the subject of unanimous agreement) and that a judge who granted corrective leave would have been wrong in principle to do so.

Singh LJ asked Mr Malik what the effect of the timings would have had on the proper disposal of this case, with TN (Afghanistan) being determined by the Supreme Court in 2015 and the consent order in this case being made in 2014. Somewhat philosophically, Mr Malik replied that the Supreme Court was declaring the state of the law as it had always been. Even though the judge would, indeed could not have known what the Supreme Court was going to say, Mr Malik submitted that this Court now knew what the Supreme Court said, so there is now no scope for arguing that this aspect of the claim might have been successful. He submitted that by her letter to the Appellant’s solicitors dated 8 May 2013 the Secretary of State had always maintained that she did not agree that the Appellant:

It was therefore the Secretary of State who had been vindicated, in Mr Malik’s submission.

In respect of the Appellant’s claim for a mandatory order that the Secretary of State determine his asylum claim, Mr Malik submitted that the Respondent had always contested that aspect of the claim. The most that could be said was that the Secretary of State had said that she would consider the asylum claim if the Appellant agreed to the terms of a consent order attached to the letter of May 2013. The Appellant did not agree to that course of action, and so consideration was not given to that claim.

Mr Malik therefore submitted that ILR was not granted on the grounds of judicial review as pleaded. Although he accepted that the Appellant had bettered one of the aspects of the relief sought (the consideration and decision on the Appellant’s claim to asylum) by ultimately achieving a grant of ILR, Mr Malik sought to distinguish this from the relief sought because the Secretary of State had robustly maintained that the Appellant’s asylum claim was “hopeless”. There was thus no compromise on the claim made; and that, even if the Appellant had succeeded in achieving or bettering the relief sought, it was unconnected with the claim.

To this end, Mr Malik argued that the Appellant had voluntarily withdrawn his asylum claim, despite the Secretary of State making clear that he was under no obligation to do so. Mr Malik said that there was no quid pro quo and that the Appellant would have been granted ILR regardless of his actions in respect of the asylum claim. He submitted that the Secretary of State would have taken a decision of the asylum claim if she had had to.

Thirdly, Mr Malik submitted that the ground of appeal was drafted in narrow terms, i.e. that this was a category (i) case only. He submitted that, if the Appellant could not successfully demonstrate that the judge’s conclusion was unsustainable, then the Appellant could not succeed on appeal. By virtue of the fact that the Appellant did not get all of that which he had sought, Mr Malik submitted that this was not a category (i) case and that in any event the appeal should fail for this reason. Mr Malik accepted that, even if one of the elements of the relief sought and obtained was that a ‘decision’ was taken on the Appellant’s asylum claim, then in those circumstances this would have been, at best, a category (ii) case.

In reply, Mr Bedford submitted that this was a category (i) case. He submitted that there was a direct link between what was sought by the Appellant’s pre-action letter and statement of case, which sought consideration of the Appellant’s asylum claim and the relief granted. He submitted that the Appellant would not have succeeded in obtaining the relief that he was eventually granted if he had not issued the judicial review claim.

He submitted that there was no offer of reconsideration of the Appellant’s claim by the Secretary of State. He relied in support of that submission upon the Secretary of State’s acknowledgment of service dated 21 December 2012, which stated that the Secretary of State would “consider” the Appellant’s submissions (see §11 above). The Appellant pursued this; by letter dated 15 March 2013 the Secretary of State stated that “the decision of 27 September 2011 granting discretionary leave will be maintained but the Defendant is now prepared to consider the Art 3 claim set out in your letter of 18 February 2010”. The Appellant’s solicitors then wrote to the Respondent by letter dated 25 March 2013 stating that the Appellant had raised an asylum claim in addition to his Art. 3 claim and that the reconsideration should therefore “as a bare minimum” determine the Appellant’s entitlement to refugee status. By letter dated 8 May 2013 (shortly before this case was stayed by order of Kenneth Parker J) the Secretary of State wrote to the Appellant’s solicitors stating that:

Mr Bedford therefore submitted that that position had been exceeded, ultimately culminating in the decision to grant the Appellant ILR.

He further submitted that the meaning of “exceptional circumstances”, referred to in the Secretary of State’s email dated 27 January 2014, could be divined by reference to the Home Office’s reasons for refusal of the Appellant’s asylum claim on 20 February 2007. That document stated that the Appellant was to be granted a period of discretionary leave “as a minor due to a lack of adequate reception arrangements in Afghanistan”.

Mr Bedford therefore submitted that there were no exceptional circumstances extant at the time of the grant of ILR because the Appellant was, by that point, over the age of 18. It could not be said that the grant of ILR was made on the basis of “exceptional circumstances” nor could it be said that any reasonable person would understand the Respondent’s email dated 27 January 2014 to mean that the grant of ILR was connected with the circumstances of the Appellant as they were in 2007. He submitted that it was a matter of fact that the asylum claim had not been dealt with, and that no concession had been made by the Appellant that he was entitled to ILR on the basis of 6 years’ leave.

The document which was handed up at Court (and to which I have already referred at §35 above) shows that it is tolerably clear that the Appellant was granted ILR on the basis of continuing discretionary leave accruing for a period of six years (first from February 2007 to February 2010; and then from September 2011 to September 2014). This document, although not communicated to the Appellant until the Court of Appeal hearing, shows, clearly, in my judgment that this was the basis upon which ILR was granted.

It would have been open to the Appellant to question, if he had wished, the basis upon which the grant of ILR was being made during the period between 29 May 2014, when the Secretary of State first communicated that her decision was on the basis of six years’ accrued discretionary leave, and the time at which the judge made his order on 19 July 2014. A period of some seven weeks elapsed between these two events, during which time the Appellant could have put in submissions in reply in respect of the basis upon which the claim was being settled. In this regard, I do not accept Mr Bedford’s submission that the consent order “required a decision after the Secretary of State’s submissions”; and that, because no explicit provision was made in the consent order for supplemental submissions to be made to the Administrative Court, it would not have been possible for the Appellant to put in such submissions. Indeed, Mr Bedford ultimately accepted that this would have been possible.

On the facts of this case, therefore, it would have been neither disproportionate nor unnecessary for further submissions to be made in respect of the basis upon which the claim was settled. This is one of the few judicial review cases in which further argument on that issue would have been of assistance. To that end, I would emphasise what Lloyd Jones LJ (as he then was) said in R (Tesfay). It is inherently more difficult to identify who is the successful party (and on what basis that party is successful) in litigation which is instigated in order to remedy purported unlawful acts of the State in public law proceedings where the courts are not the primary decision maker. That is even more so when a judicial review claim is not adjudicated upon on the merits by a judge of the Administrative Court - where the reasons for that judgment are set out in unambiguous terms - but where a claim is settled between the parties.

The basis upon which a judicial review claim is settled may be much less clear than a claim brought in, for instance, a commercial context where a successful party may be more clearly identified. This case is therefore an archetypal example of one of those cases in which further submissions would have assisted the Appellant in articulating his case as to which of the M v Croydon LBC categories this case properly fell into. That is not to give a licence to litigants to undertake extensive additional submissions following the settlement of a claim. Such submissions must, as always, be proportionate to the issues in dispute.

It follows from this that the proper basis upon which to settle the Appellant’s judicial review claim was for the Secretary of State to grant the Appellant ILR on the basis of his having accrued 6 years’ discretionary leave, which “normally” amounts to settlement in the United Kingdom under section 10 (“Transitional Arrangements”) of the Secretary of State’s policy on discretionary leave when he became entitled to it in 2013. This is what the Secretary of State did by her email of 27 January 2014.

Whether that grant of ILR amounted to the Appellant being wholly or partly successful on his claim, or whether there was some compromise of the claim unconnected to the judicial review claim was primarily a matter for HHJ Oliver-Jones QC, unless it could be demonstrated that the judge misdirected himself or that he reached a conclusion which was perverse on the facts of this case.

First, it is clear in my judgment that the judge did not misdirect himself. He correctly identified and set out in full the relevant parts of the judgment of Lord Neuberger MR (as he then was) in M v Croydon LBC. He then engaged with the substance of that judgment, identifying the factors that were relevant to a proper application of that authority.

Second, the judge’s conclusion was clearly not perverse on the facts. In HE v Secretary of State for the Home Department [2013] EWCA Civ 1846, Rupert Jackson LJ (with whom Black LJ, agreed) said the following:

This is one of those cases in which, no matter how attractively Mr Bedford articulated the Appellant’s case before the Court of Appeal, we cannot interfere with the judge’s costs order simply because we might have exercised our discretion differently. The judge was entitled to make the order that he did. In so far as the Secretary of State might now be criticised for producing the material which clearly identified the basis upon which she considered that she was granting the Appellant ILR, there was, as I have already said, ample opportunity for the Appellant to have requested that material and to have made submissions on that aspect of the costs issue.

For the reasons that I have given I would therefore dismiss this appeal.

I agree.