Nisar & Ors, R (on the application of) v Secretary of State for the Home Department

The Appellants are all foreign nationals living outside the UK who applied for entry clearance to visit the UK. These applications were refused, and the Appellants challenged those refusals in pre-action correspondence.

The Home Office in both cases then agreed to withdraw the challenged decision and make new decisions. A date was specified by which the officials acting on behalf of the Secretary of State (“SSHD”) indicated – in differing terms in the two cases - that a fresh decision would be made, absent special circumstances.

In each case the fresh decision was not made by the date indicated but was made shortly afterwards. Both decisions were to refuse entry clearance to visit the UK.

The Appellants, between the date indicated by the SSHD and their receipt of a decision, each started claims for judicial review of the delay in meeting a decision. These claims were discontinued by consent once they received their decisions.

The only issue remaining in dispute in each claim was costs. The Appellants’ solicitors claimed that receipt of a decision, even to refuse entry clearance, amounted to success in the proceedings. On contested applications, the Upper Tribunal in each case made no order as to costs.

The Appellants are Benish Nisar and her four children, all of whom are Pakistani nationals. Mrs Nisar was born in 1979 and her children in 2005, 2006, 2008 and 2013.

Between 8 June 2022 and 16 June 2023 the Appellants applied for a visa to enter the United Kingdom as visitors and were refused. In each instance a pre-action letter was sent and the Respondent agreed to consider then maintained the refusal. On the second occasion the agreement to reconsider was in response to the issuing of judicial review proceedings.

The chronology is as follows:

On 5 July 2023 the Home Office responded with a letter which included the following:

“The SSHD acknowledges the challenges you’ve raised. As such, comprehensive steps have been taken to evaluate the matter in order to provide a meaningful remedy to your letter before claim. Barring complexities, the SSHD aims to issue a reconsidered decision on your application by 16 October baring any complexities”. [sic]”

The Appellants solicitors wrote on 7 July 2023 to the Respondent seeking a speedier reconsideration, by 21 August. The letter stated:-

“The Respondent has a history of issuing a decision with faulty reasoning and then conceding the same once challenged. Let’s look again at the history of this matter and the Respondent’s conduct. [The letter went on to set out the history from the submission of the application on 8 June 2022 onwards and continued:-]

Despite all of the above, the Applicant was again served with a refusal on 16 June 2023. Now after filing her fourth pre-action letter, this refusal has been withdrawn in favour of reconsideration in 3 months.

Over a year has passed since submission, and the Respondent has conceded four faulty decisions, three after the filing of pre-action letters and one after lodging of the judicial review claim. It is contended that the Respondent is now misusing the pre-action stage; the Respondent fails to consider the evidence adequately or at all, a legally unsound decision is then issued against the Applicant. The Applicant spends time and money to challenge the same only for the Respondent to again issue a refusal without correct consideration to obstruct the Applicant from exercising the public law remedy available to her.

The Applicant has submitted no new evidence that would warrant a further reconsideration time of three months. The Respondent is alive to the Applicant’s circumstances and yet chooses repeatedly to ignore the explanations advanced.

The Applicant seeks a decision be made within six weeks i.e. by or before 21 August 2023. The decision should be made and served on the Applicant’s legal representatives by this date - what the Applicant will not accept is the Respondent yet again attempting to thwart the Applicant’s right to exercise public law remedy and issuing a decision on the last date to then send it by post to the Applicant, knowing that it will be out of time. The decision can be served at zij@saj.legal for instantaneous service.”

The Respondent’s reply of 25 July 2025 stated:

“Thank you for your pre-action protocol letter dated the 07/07/2023 regarding the delay in processing your client’s visit visa application. The Entry Clearance team have confirmed that a decision regarding your client’s UK visitor visa will be made by the 21/08/2023, absent special circumstances.” [emphasis added]

The SSHD on 22 August 2023 took a decision to refuse the Appellants’ applications for a fifth time. However, that was not immediately conveyed to the Appellants or their solicitors; and it is common ground that a decision of this kind is not effective until it is served on or notified to the applicant. By the time it was notified to Mrs Nisar’s solicitors, they had already begun proceedings in the Upper Tribunal seeking judicial review of the SSHD’s delay in determining the application for entry clearance.

On 23 August this judicial review claim was served on the SSHD. On 23 and 24 August the decisions of 22 August 2023 were served on the Appellants’ solicitors.

On 20 September 2023 the claim was settled by consent save as to costs, with the parties agreeing to file costs submissions with the court.

On 18 October 2023 the Respondent filed submissions seeking costs in the sum of £1,076. On 31 October 2023 the Appellants filed costs submissions in reply seeking an order for their costs, to be assessed if not agreed.

By an order dated 1 October 2024, made after considering the case on the papers, UTJ Sheridan decided as follows:

“I make no order as to costs

Reasons

(1)

On 25 July 2023 the respondent stated, in pre-action correspondence, that she would make a decision in respect of the applicants’ visa application by 21 August 2023.

(2)

The respondent missed the deadline by one day: her decision (refusing the application) was made on 22 August 2023. On the same day (22 August 2023) these proceedings were lodged.

(3)

On 13 September 2023 the parties entered into a consent order agreeing to withdraw the application and for submissions to be made on costs. I make this decision on costs having reviewed the submissions made in accordance with the consent order.

(4)

The respondent failed to meet the deadline she agreed to. She submits that the 21 August 2023 deadline was a “proposed timeframe” and not an “enforceable undertaking”. That may well be the case, but it does not explain why she did not inform the applicants, prior to 21 August 2023, that she was unable to meet the deadline. Had the applicants been informed that the decision would be only a few days late, lodging these proceedings on 22 August 2023 would not have been justifiable.

(5)

On the other hand, the respondent missed the deadline by one day and it would have been reasonable for the applicant to contact the respondent to ask when the decision would be sent before lodging these proceedings. Had this step been undertaken these proceedings, and associated costs, could have been avoided.

(6)

Having regard to the conduct of both parties – both of whom could have taken a simple step that might have avoided the necessity of these proceedings – I consider that the appropriate costs order is no order as to costs. ”

Mrs Nisar sought permission to appeal. The succinct grounds, drafted by Mr Gajjar, submit that:-

“It is arguable that UTJ Sheridan irrationally concluded that the appropriate decision was that there was no order as to costs given the Respondent did not issue a decision by 21 August 2023 as she had indicated, despite being warned on 25 July 2023 that a failure to issue a decision by the date she herself stated would lead to litigation. The decisions refusing permission were not served until 23 and 24 August 2023.”

On 29 January 2025 Asplin LJ granted permission to appeal, writing that there was a real prospect of success in arguing that in the circumstances the judge’s exercise of discretion in relation to costs was irrational or wrong in principle.

The Appellant is a national of Turkmenistan, born 1997, and has been living in Turkey as a student since 2016.

On 28 August 2024 he applied for leave to enter as a visitor. The application was refused on the first occasion on 18 September 2024 on the basis that it was not accepted that the Appellant was a genuine visitor. The Respondent SSHD agreed to reconsider in response to a pre-action letter, and on 12 December 2024 refused the application again. In response to another letter, the Respondent agreed to reconsider. The letter, dated 20 December 2024, read:

“The SSHD notes that the most recent decision to refuse your client’s visit visa application was made on 12 December 2024.

The SSHD acknowledges the challenges you have raised. As such, comprehensive steps have been taken to evaluate the matter in order to provide a meaningful remedy to your letter before claim.

Barring complexities, the SSHD aims to issue a reconsidered decision on your client’s visit visa application within 3 months of the date of this response to your letter before claim (by 20 March 2025, absent special circumstances).

Please note that entry clearance is not an automatic process, and the ECO must make a number of enquiries before they can reach a decision on whether to grant entry clearance to an applicant. Whilst the ECO aims to deal with cases as quick as operationally possible, this cannot always be guaranteed, and entry clearance cannot be granted to any individual until the ECO is satisfied that all the relevant requirements have been met; 3-months is therefore the standard timeframe for reconsideration to ensure all relevant checks are conducted thoroughly.”

On 21 February 2025 and 17 March 2025 the Respondent emailed Mr Mammedov personally asking for evidence that he had the right to work in Turkey. On 17 March the Appellant replied stating that he was unemployed and could not understand why the enquiry was being made. He requested that the SSHD correspond with his lawyers instead.

Meanwhile, on Sunday 16 March, SAJ Legal had written to the SSHD’s pre-action email address stating the following:

“Dear Sirs, This is just a reminder to make and serve the decision by or before 20 March 2025. If you fail in doing so, then we will issue proceedings without any further notice.”

There was no response from the Respondent. After receiving no decision by the deadline of 20 March 2025, on 21 March the Appellant’s solicitors issued a claim for judicial review. The claim challenged the Home Office’s delay in making a decision on the entry clearance application, arguing that although the application had been refused twice in late 2024 the Home Office had agreed to reconsider it following pre-action letters.

The Home Office issued a decision on 28 March 2025, again refusing the application.

On 7 May 2025 a consent order was made in the following terms:

“UPON the Respondent failing to make and serve a decision in respect of the Applicant’s entry clearance application by 20 March 2025 in line with pre-action correspondence;

AND UPON the Applicant issuing and serving these proceedings on 24 March 2025;

AND UPON the Respondent serving a decision on the Applicant’s entry clearance on 28 March 2025, thereby rendering the claim academic;

BY CONSENT, IT IS ORDERED THAT:-

1.

The Applicant do have leave to withdraw the claim for judicial review.

2.

The issue of the public law costs to be determined by a Judge of the Upper Tribunal in accordance with the following timetable” [which the order proceeded to set out].

The Appellant sought costs, arguing he had achieved the outcome sought. The Home Office opposed, citing non-compliance with the pre-action protocol and arguing that the judicial review did not directly lead to the decision.

On 19 June UT Judge Hirst decided there should be no order for costs and gave the following reasons:

“(1)

Having considered carefully the parties’ written submissions and the documents in the claim, together with the guidance in M, I consider that it is appropriate to make no order as to costs. ”

(2)

The Applicant has, since issuing the claim for judicial review, obtained the remedy sought (a decision on his entry clearance application). I consider that he is to be regarded as the successful party.

(3)

However, I consider that there is a good reason to depart from the normal order as to costs, namely the Applicant’s failure to comply with the pre-action protocol. As the Court of Appeal made clear in M at §61, the purpose of the pre-action protocol is to enable resolution of the claim without recourse to the issue of proceedings.

(4)

In this case, the Applicant relies on the previous pre-action letter sent on 13 December 2024 and maintains that once the pre-action protocol had been complied with on that occasion, he was not required to do more. I do not accept that submission. The 13 December 2024 pre-action letter related to the substance of the 12 December 2024 decision and not to the issue of delay which was the subject of the challenge in this claim. The reminder email sent by the Applicant’s solicitors on 16 March 2025 simply notified the Respondent that the Applicant would issue proceedings without any further notice if a decision were not made by 20 March. The reminder did not identify any proposed grounds of challenge and therefore was not compliant in form or substance with the pre-action protocol.

(5)

The facts in this case are therefore substantially different to those summarised in the Court of Appeal’s grant of permission in Dawod Khan v SSHD (CA-2024-000219), on which the Applicant relies. In that case, the issue of delay in making a decision on the asylum application was raised in the original pre-action letter.

(6)

In this case, it would have been reasonable, and in accordance with the overriding objective, for the Applicant to raise the (new) issue of delay via a pre-action letter prior to issuing the claim for judicial review. I consider that the failure to do so is a good reason to make no order as to costs.”

In Mr Mammedov’s case, the grounds of appeal argue that:

On 17 September 2025 Elisabeth Laing LJ granted permission to appeal and directed that the case be listed together with the appeal of Mrs Nisar. She wrote:

“20.

I consider that, whether or not this appeal is arguable with a realistic prospect of success, there is another compelling reason for giving permission to appeal, which is that this court has given permission in Nisar, which raises similar, but not identical, issues.

21.

I also consider that there is, in any event, an issue of general importance in cases like this, in which the Secretary of State has made more than one decision in response to complaints that an initial decision is wrong, has promised to make a further decision within a particular time, ‘absent special circumstances’, does not do so, and does explain why not. That issue is whether it is right to penalise a claimant who has already engaged in pre-action correspondence for not writing a further pre-action protocol letter which complains about the breach of that qualified promise, when the Secretary of State must know that she has not complied, and where, as here, A reminded the Secretary of State shortly before the deadline of her promise, and said that he would issue proceedings immediately if she did not meet it.”

This court has repeatedly reiterated the approach to be taken in appeals about costs articulated by Sir Murray Stuart-Smith in Roache v News Group Newspapers Ltd [1998] EMLR 161 at [172]:

"Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account, or has taken into account, some feature that he should or should not have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors in the scale."

This passage has been approved in, for example, Burgess v Lejonvarn [2020] EWCA Civ 114 and R(Parveen) v Redbridge LBC [2020] EWCA Civ 194.

As to how this discretion should be exercised where a case has settled, the classic judgment remains that of Lord Neuberger MR in R(M) v Croydon LBC [2012] EWCA Civ 595; [2012] 1 WLR 2607. In paragraph [1] he said:-

“This appeal raises the issue as to the proper approach to awarding costs in judicial review proceedings, where the defendant public authority effectively concedes some or all of the relief which the claimant seeks. As with any question relating to costs, the issue is both highly fact-sensitive and very much a matter for the discretion of the first instance tribunal. However, a degree of consistency of approach is self-evidently desirable, and the issue gives rise to some points of principle and policy.”

At paras [44]-[46] he set out the general principles which apply after a trial in ordinary civil litigation:

"44.

There are three relevant general principles which appear to me to apply to awards of costs after a trial in ordinary civil litigation. The first is that any decision relating to costs is primarily a matter for the discretion of the trial judge, which means that an appellate court should normally be very slow indeed to interfere with any decision on costs. However, while wide, the discretion must be exercised rationally and in accordance with certain generally accepted principles. To a large extent, those principles are set out in CPR 44.3, and in particular, paras (2), (4), (5), and (6). If the trial judge departs from rationality or the correct principles then it is legitimate for an appellate court to interfere with his conclusion.

45.

The second principle is that, as has long been the case in English civil litigation, and is expressly stated in CPR 44.3.2(a), the general rule in all civil litigation is that a successful party can look to the unsuccessful party for his costs. Of course, as CPR 44.3(2)(b), (4), (5) and (6) demonstrate, there may be all sorts of reasons for departing from this principle, but it represents the prima facie position. For instance, the fact that the successful party lost on, or abandoned, an issue, will often involve his being deprived of some, or even all, of his costs (and, in an extreme case, he may even have to pay some of the unsuccessful party's costs) – CPR 44.3(4)(b). Further, the parties' conduct is a relevant matter, as CPR 44.3(4)(a) provides, so that failure to adhere to the provisions of any relevant protocol may well affect any decision the court makes on costs.

46.

The third principle is that the basis upon which the successful party's lawyers are funded, whether privately in the traditional way, under a 'no win no fee' basis, by the Community Legal Service, by a Law Centre, or on a pro bono arrangement, will rarely, if ever, make any difference to that party's right to recover costs."

The next part of Lord Neuberger's judgment deals with cases which settle before trial in ordinary civil litigation. At [49] - [51] he said:

“49.

… Given the normal principles applicable to costs when litigation goes to a trial, it is hard to see why a claimant who, after complying with any relevant Protocol and issuing proceedings, is accorded by consent all the relief he seeks, should not recover his costs from the defendant, at least in the absence of some good reason to the contrary. In particular, it seems to me that there is no ground for refusing the claimant his costs simply on the ground that he was accorded such relief by the defendants conceding it in a consent order, rather than by the court ordering it after a contested hearing. In the words of CPR 44.3(2), the claimant in such a case is every bit as much the successful party as he would have been if he had won after a trial.”

50.

The outcome will normally be different in cases where the consent order does not involve the claimant getting all, or substantively all, the relief which he has claimed. In such cases, the court will often decide to make no order for costs, unless it can, without much effort decide that one of the parties has clearly won, or has won to a sufficient extent to justify some order for costs in its favour. Thus, the fact that the claimant has succeeded in obtaining part of the relief he sought may justify his recovering some of his costs, for instance where the issue on which the claimant succeeded was clearly the most important and/or expensive issue. But in many such cases, the court may consider that it cannot fairly award the claimant any costs because, for instance, it is not easy to assess whether the defendants should have their costs of the issue on which the claimant did not succeed, and whether that would wipe out the costs which the claimant might recover in relation to the issue on which he won.

51.

In many cases which are settled on terms which do not accord with the relief which the claimant has sought, the court will normally be unable decide who has won, and therefore will not make any order for costs. However, in some cases, the court may be able to form a tolerably clear view without much effort. In a number of such cases, the court may well be assisted by considering whether it is reasonably clear from the available material whether one party would have won if the case had proceeded to trial. If, for instance, it is clear that the claimant would have won, that would lend considerable support to his argument that the terms of settlement represent success such that he should be awarded his costs."

In [60] Lord Neuberger said:

“... in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant's claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.”

“61.

In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, the defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued: that is one of the main points of the pre-action protocols.”

The Master of the Rolls went on to consider cases of type (ii) and (iii). At [62] he said that in case (ii), where there has been a settlement, the court will normally be in a significantly worse position to make findings on the degree of success achieved by each party than where the case has been fought out at a trial. There is often much to be said for concluding that there should be no order for costs, but much depends on the facts, in some such cases it may help to consider who would have won if the matter had proceeded to trial. In a case of type (iii) there is an even more powerful argument that the default position should be no order as to costs; but in some such cases it may well be sensible to look at the underlying claims and enquire whether it is tolerably clear to see who would have won if the matter had not settled.

In R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4853 Lloyd Jones LJ said at [57]:-

“Whereas in a settlement of private law litigation it is usually possible to identify with some precision the extent to which a party has been vindicated, the position following compromise of public law litigation is often not so clear cut. Proceedings for judicial review are brought by persons dissatisfied with decisions of public bodies. However, the courts are not the decision makers and often in public law the most that can be achieved is an order that the decision maker reconsider on a correct legal basis. That may not lead to ultimate victory for the applicant because the new decision may be a lawful decision against the interests of the applicant. Nevertheless, to achieve an order for reconsideration will often be a substantial achievement. Success in public law proceedings must be assessed not only by reference to what was sought and the basis on which it was sought and on which it was opposed, but also by reference to what was achievable.”

In Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225 the Appellant had challenged a decision of the respondent Secretary of State's Rural Payments Agency by two means: an internal appeal and a claim for judicial review. They were successful in the internal appeal and the decision was set aside. The judicial review was then discontinued by consent save that the court was asked to decide whether the appellant could recover costs. Vos J made no order as to costs, observing:-

"36.

What effectively has happened here is that SPL has backed two perfectly proper horses. The first horse was the abuse of process claim in the judicial review proceeding and the second horse was the statutory appeals process. Both were properly brought. SPL was entitled to make both claims and pursue both claims in parallel…

37.

The question is whether, if one horse finishes first and entitles the applicant to the relief that it would have obtained if the other horse had finished first the applicant can seek the cost of both sets of proceedings.

...

39.

In this case, unless it is possible for the court to say that SPL would have won its abuse of process ground without wasting undue judicial time, the normal default order, as Lord Neuberger makes clear, is no order as to costs. ... What matters is whether or not I can say that SPL would have succeeded in its abuse of process claim. That is something I cannot say on the evidence before me, as is common ground between the parties.

40.

In these circumstances, though SPL can quite reasonably think that they have been deprived of the opportunity to argue their points, which they might well have won, it does not seem to me appropriate that they should be awarded their costs. They took a belt-and-braces approach to the litigation. They obviously regarded it as extremely important that they obtained the relief they wanted, by whichever route, as quickly as possible. For that they had to hazard some costs, as they said in another context they were prepared to do. Unfortunately for them (to mix my metaphors), the horse that they backed, which did not have very good odds, came home first. In those circumstances they cannot, unfortunately, claim the winnings for the horse that never came home because it did not need to."

In this court, the decision of Vos J was affirmed. Patten LJ said at [29]:-

"The decision in M represents an acceptance that there will be cases where the link between the claim and the agreed relief is so clear that the claimant can properly be treated as the successful party for the purpose of an award of costs. But for that link to be established the court is, I think, usually required to be satisfied that the claimant is likely to have won: see Lord Neuberger at [51] of M. In any event, the claim must be causative of the relief obtained."

In R (RL) v Croydon LBC [2018] EWCA Civ 726; [2019] 1 WLR 224 the claimants were a Ghanian mother and her three children. The mother informed the local authority that they faced eviction. She was ineligible for assistance under the homelessness legislation because of her immigration status. The council began an assessment under section 17 of the Children Act 1989 to determine whether accommodation could be provided on the basis that the children were in need. Nearly two weeks after they had been evicted, with the section 17 assessment not yet completed, the claimants sought judicial review of the council's failure to provide accommodation under section 17, alleging unlawful delay. One week later the assessment was completed and recommended that temporary accommodation under section 17 be provided.

The claimants were refused permission to claim judicial review on the papers. They sought an oral renewal of the permission application but withdrew the claim by consent before that application was heard. The judge made no order as to costs.

An appeal to this court against the decision on costs was unsuccessful. Underhill LJ, with whom Sir Rupert Jackson agreed, said:

“74.

I do not believe that the Appellants can succeed in their claim for costs in this case on the conventional M v Croydon basis – that is, that they obtained substantially the relief sought and are accordingly to be viewed as the successful party. Although in broad terms the relief sought was the provision of accommodation, such relief was not, as Moylan LJ demonstrates, available as a matter of law. More accurately, what the Appellants were seeking was an assessment under section 17 of the 1989 Act, which might (and indeed eventually did) lead to the provision of accommodation. At the time that the proceedings were issued there was no dispute between the Appellants and the Council that it was under an obligation to carry out such an assessment: it had indeed started, to the Appellants' knowledge, some time prior to the commencement of proceedings. The object of the proceedings was not to secure an assessment but to secure it sooner than it was feared would otherwise be the case. That being so, the fact that the assessment was in fact completed, and that the Appellants were accommodated accordingly, does not represent "success": that would have happened anyway. I thus agree with Moylan LJ that that outcome was not the result of the proceedings. In a case of this kind the measure of "success" has to be whether as a result of the proceedings being brought the assessment was completed substantially sooner than it otherwise would have been. I can see no reason for supposing that to have been the case here, and indeed given the time-scales it seems very unlikely. Accordingly, I do not think it would be fair to award the Appellants their costs simply on the basis that they were "the successful party".”

75.

However, I do not think that that is the end of the matter. It is necessary to look at the particular circumstances of the case. The Appellants believed that the assessment had already been unlawfully delayed, and although we now know that it would be completed within the week, that was something they had no way of knowing. That being so, I believe that it would be appropriate for them to be awarded their costs if the Court were in a position to decide with sufficient confidence both (a) that Croydon had been legally obliged to produce the assessment prior to 28 October 2015 and (b) that it was reasonable of the Appellants to issue the proceedings on that date. I say "with sufficient confidence" because it would not be proportionate to hold the equivalent of a full trial simply in order to determine liability for costs: the Court has to do its best to reach a fair conclusion on a summary basis, with the fallback of making no order if that is not possible.

76.

I do not believe that the Appellants can satisfy element (a) in that approach. The starting point must be Garnham J's refusal of permission on the basis that the claim had no realistic prospect of success.”

ZN (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 1059 considered two applications for costs made by the appellants following consent orders approved by the court under which their appeals were withdrawn after the Home Office had agreed to consider their asylum claims. The appellants sought costs on the ground that they had in practise achieved what they had sought in the proceedings. Singh LJ said:-

“65.

On behalf of the Respondent Ms Broadfoot QC submits that the reasoning of the Court in M v Croydon suggests that there must be a causal connection between the merits of a pleaded challenge and the decision on costs, whether or not the case proceeded to a substantive hearing. She submits that the Court took that approach in Tesfay. She submits that the Appellants have not been legally successful in the proceedings which they brought.

66.

The fundamental difficulty with Mr Knafler's submission [for the Appellants] is that, if the appeals had proceeded to be determined on their merits, there can be no doubt that they would have been dismissed. In my view, the Appellants cannot be regarded as having been "successful"……….

67.

The underlying rationale for the normal rule that costs follow the event is that a party has been compelled by the conduct of the other party to come to court in order to vindicate his legal rights. If those legal rights had been respected in the first place by the other party, it should never have been necessary to come to court. Accordingly, there will normally be a causal link between the fact that costs have been incurred and the underlying merits of the legal claim. This underlying rationale also explains why civil procedure normally requires a party to send a pre-action protocol letter to the other party. If the response to that letter had been to accept the merits of the claim in advance, it should never have been necessary to bring that claim to court.

68.

The point can be tested in this way. Suppose that for some entirely extrinsic reason an appeal becomes academic: for example, if events occur in the Appellant's country of origin which mean that it may be unsafe for him to be returned there even though the Secretary of State has not previously accepted that there is such a risk. In those circumstances the Secretary of State may accept that she should reconsider the claim in this country. Mr Knafler fairly accepted at the hearing before this Court that, in such circumstances, he would not be entitled to his costs. This is because there would be no causal link at all between the reason why the appeal has ended with an outcome which is favourable to an appellant and the fact that costs were incurred by him. However, Mr Knafler submits that the present cases are distinguishable because the reason why the appeals have become academic is not for some entirely extrinsic reason but arises from the conduct of the Respondent herself.

69.

In my view, the answer to that submission is that what CPR rule 44.2(4)(a) (which refers to taking into account "the conduct of all the parties") is normally concerned with is the conduct of a party in the litigation itself, not some other conduct. In the present case, there is no criticism which can be made of the Respondent's conduct of the litigation itself. What Mr Knafler fastens upon is the administrative failures of the Secretary of State outside the context of the litigation. It is because of those administrative failures that the appeals have become academic. In my view, those failures are extrinsic to the litigation.”

At [102-103] Leggatt LJ said:-

“102.

The general rule prescribed by CPR 44.2(2) is that the unsuccessful party will be ordered to pay the costs of the successful party, although the court may make a different order. When a claim for judicial review is settled or withdrawn after the defendant has taken or agreed to take a step which was a material part of the relief sought by the claimant, it is often not straightforward to determine whether or to what extent the claimant can be judged to have been successful. The defendant may, for example, assert that it has taken the step in question for reasons unconnected with the merits of the claim; and the claimant may have achieved part, but only part, of what was claimed.

103.

In my view, in such cases the public interest in facilitating access to justice may properly influence the exercise of the court's discretion as to costs in at least three ways. First, it is a reason to analyse the circumstances of the particular case to try to work out whether the claimant has been successful rather than too readily adopting the fallback position of making no order for costs......... Second, it is a reason not to set the bar too high in judging what constitutes success and to treat it as sufficient to characterise the claimant as the successful party for the purposes of CPR 44.2(2) that as a result of the litigation the claimant has achieved any material part of the relief sought. Third, it is a reason not to be too astute to pare down awards of costs or to deprive a claimant who has achieved such a measure of success of costs just because the claimant has not been wholly successful, provided that the claim has been conducted reasonably.”

In R (Parveen) v Redbridge LBC [2020] EWCA Civ 194; [2020] 4 WLR 53 at [31] Males LJ said:

“The fact that the claimant has obtained the relief which he or she was seeking in the proceedings does not necessarily mean that the existence of the proceedings has caused or contributed to that result. It may be that it would have happened anyway. The cases show that causation is a relevant and sometimes decisive factor in the exercise of the court's discretion concerning costs.”

In the Nisar case it is not entirely clear whether UTJ Sheridan appreciated that the judicial review claim had been issued before the Home Office decision refusing the Appellants applications became effective by being communicated to Mrs Nisar's solicitors. The judge, at paragraph 3 of the Reasons, rightly criticised the Home Office for not having informed the Appellant's prior to 21 August 2023 that the SSHD was unable to meet the deadline.

By contrast, I cannot agree with the observation in paragraph 4 of the Reasons that it would have been reasonable for the Appellants to contact the Respondent to ask when the decision would be taken. The Home Office letter of 25 July 2023 had stated unequivocally that, absent special circumstances, a decision would be made by 21 August 2023; no special circumstances were put forward at the time, nor have any been advanced in retrospect. Of course the judge was right to say that this letter did not create an "enforceable undertaking", at least in the sense of one which could be the subject of an order for specific performance, still less of committal for contempt, but in my view it was sufficiently clear to amount to a legal obligation. The case is thus not one of the more familiar type, of which Mr Mammedov's claim is an example where the SSHD has simply taken a long time to deal with an application.

The statement of Patten LJ in Speciality Produce that the claim "must be causative of the relief" is not to be treated as though it was a statute, nor as imposing a strict causation test in every case. In Speciality Produce, as already noted, the Claimant company had obtained success through a separate statutory appeal. In Mrs Nisar's case the Home Office had taken upon themselves a legal obligation to give a decision, that is to say to make it and communicate it, by 21 August. Given the protracted history of the correspondence and the unequivocal commitment in the letter, it was reasonable of the Appellants’ solicitors to issue a claim when that deadline was not met. Had it not been for the deadline, backed by the threat of a claim for judicial review, the delay would plainly have been even greater. The case is therefore to be contrasted on the facts with RL, where the issue of the claim did not accelerate the completion of the assessment under s 17 of the Children Act 1989, let alone accelerate the provision of accommodation. The observations of Underhill LJ in R(Rl) v Croydon LBC at [75] are in point.

The claim of Mrs Nisar and her children thus falls fairly and squarely within category (i) of Lord Neuberger's classification in M v Croydon. The threat of the claim achieved all that the Appellants were seeking. Their solicitors issued the claim before knowing that the Respondent was about to issue the decision, after the agreed deadline: they acted reasonably in doing so; and in those circumstances the SSHD should have been ordered to pay costs in respect of the brief period up to the compromise of the claim. I would therefore allow Mrs Nisar's appeal.

In Mr Mammedov's case, by contrast, the Home Office had only written a letter saying that they would "aim to" issue a decision by the specified date. This did not create a legal obligation, even after the "chaser letter" of 16 May 2025. The delay had not reached the stage where it was so excessive as to be manifestly unreasonable: see for example per Elisabeth Laing LJ in R (Ullah) v SSHD [2022] EWCA Civ 550; and delay had not been complained of prior to the letter of 16 May 2025. UTJ Hirst was fully entitled to take the view that “it would have been reasonable, and in accordance with the overriding objective, for the Applicant to raise the (new) issue of delay via a pre-action letter prior to issuing the claim for judicial review. I consider that the failure to do so is a good reason to make no order as to costs.”

Accordingly I do not consider that there is any basis on which the exercise by UTJ Hirst of the court’s discretion to make no order as to costs can be impugned. I would therefore dismiss Mr Mammedov's appeal.

I agree.

I also agree.