Kaya, R (On the Application Of) v Immigration Appeal Tribunal

THE DEPUTY JUDGE: On 11th April of this year the applicant, Mr Kaya, instigated proceedings for judicial review of the determination of the Immigration Appeal Tribunal which had, on 13th January, dismissed his application for leave to appeal against the determination of the Special Adjudicator. The Special Adjudicator's determination had been to refuse Mr Kaya's claim for asylum and also his claim that his human rights under the European Convention would be infringed if he was returned to Turkey.

On 1st May the Secretary of State for the Home Department, as an Interested Party, acknowledged service of the claim form and indicated that he intended to contest the proceedings. He put in summary grounds of resistance to the application, and that being the state of affairs the application was considered on paper by Maurice Kay J. On consideration of the papers he refused permission to apply for judicial review.

To that point, as I understand it, the claimant had the benefit of a Legal Aid certificate in these proceedings, but upon the refusal of permission the Legal Aid certificate was discharged. Nonetheless the claimant and his lawyers considered that a renewed application for permission should be made and in order to fund his lawyers the claimant, who I think can properly be described as an impecunious asylum seeker, borrowed the necessary money.

The renewed application came on for hearing before Elias J on 17th June. He heard oral argument from both parties and he granted permission. Both counsel who appear before me now appeared before Elias J and they accept that he confined himself to considering whether the applicant's case was properly arguable. He gave no judicial hint as to the probable outcome of the case, he simply granted permission. Permission having been granted, as I understand it, Legal Aid was restored.

On 4th August of this year, approximately 2 and a half weeks after Elias J's decision, those acting for the Secretary of State indicated to the applicant's solicitors that the Secretary of State was prepared to concede that the decision of the Immigration Appeal Tribunal should be quashed and that the case should be remitted to that Tribunal.

As I understand it all that has been between the parties since that date is whether or not the Secretary of State should pay the applicant's costs of and incidental to the permission hearing which took place before Elias J. Having heard argument this morning it seems to me clear that the principles upon which I should act in making a decision about that issue are those which are set out by Scott Baker J, as he then was, in a case which I will call for shorthand purposes, Boxall.

In that case Scott Baker J gave specific consideration to those categories of cases where there has been a discontinuance after permission and before a substantive hearing, in the context of the defendant or interested party conceding that relief should be granted. He begins his consideration of the relevant principles at paragraph 16 of his judgment, but sets out the guiding principles at paragraph 22:

Given the focus of the argument before me it seems to me to be obvious that the most relevant of those points of principle, for the determination of this case, are those which are set out at sub-paragraphs 4 to 6. That said, of course, the principle at sub-paragraph 3 will always be of overriding importance.

In this case, it seems to me, that it is manifest that prior to the grant of permission the Secretary of State considered, at the very least, that he had an arguable defence. He said as much in his acknowledgment of service, he said as much before Elias J. His acknowledgment of service was sufficient to persuade Maurice Kay J that permission should not be granted.

Nonetheless, says Mr Collins, on behalf of the applicant, if one analyses the position as one should, the position of the Secretary of State was in fact untenable. It was very likely, says Mr Collins, that the position of the Secretary of State was doomed to failure, and was always doomed to failure on a proper appreciation of the relevant facts and legal principles. He says that that was the position as of April 2003 when these proceedings were launched and remained the position as at June 2003 when permission was actually resolved. The claimant was, so he submits, at the very least likely to win this challenge.

I have obviously given close regard to Mr Collins' submissions about that, but, in my judgment, I cannot go that far. In simple terms, the mere failure to persuade such an experienced judge as Maurice Kay J that permission should be granted gives the sort of indication of the hurdle that Mr Collins has to surmount. But it also seems to me that it is not for me, at this stage, in effect, to rehear a substantive challenge. That would be time-consuming, costly and wholly disproportionate to the amount of costs at stake. It seems to me that I have to approach it on the basis: does a comparatively cursory reading of the papers, albeit a reading which is intended to be informed, demonstrate to me, clearly, that the Secretary of State was very likely to lose and the claimant very likely to succeed as at the permission stage? I do not think I could possibly reach such a conclusion applying that test.

Following the decision of Elias J a decision was made in the Immigration Appeal Tribunal which I will call A for shorthand purposes. That decision was given on 28th July. I have no doubt that the effect of that decision was to make it more likely that the claimant would succeed in this challenge. At the very least that decision, by which I mean A, had the effect of clarifying the law and giving guidance to the Immigration Appeal Tribunal.

As of 4th August 2003, as I have indicated, the Secretary of State made his concession. That concession may have been on the basis of A, it may have been because he was acting in accordance with the practice which I am told he adopts, which is in cases of this type, on many occasions, to concede the point and return the case to the IAT rather than incur costs, waste of time and other factors relating to court management, by insisting upon substantive hearings of this sort of challenge.

Whatever may have been the motivating factor in the Secretary of State's concession, it does not seem to me that it assists in the resolution of the exercise of my discretionary function. It seems to me that the fact of A cannot make it more appropriate to make an order for costs in favour of a claimant when A had not been decided at the relevant time. The permission application was being determined in the light of what was then known, both in terms of authority and objective evidence.

It does not seem to me that I can take into account the potential motives of the Secretary of State in making his concession, in the exercise of my discretion. Accordingly, as interesting as the issues are surrounding the effect of the case of A, ultimately, I do not believe that that is something to be taken into account in the exercise of my discretion.

Mr Collins, in effect, conceded that if I was not persuaded that it was at least "very likely" that the claimant would succeed, looking at the papers as they were in April or June of this year, then he would only be entitled to his costs as claimed if he could demonstrate that there were exceptional circumstances in the case. In that regard, in a helpful skeleton argument, he set them out on the last page. He identified a total of five factors which he submitted made this case exceptional.

Firstly, he said, the strength of the claim. In effect, by virtue of that part of this judgment which I have already given, I reject that in terms of the exceptional nature of the case. I have already reached the conclusion that on the sort of appraisal justified in this kind of hearing, the case can be described as no more than arguable.

Secondly, he sets out this point: given there has been full argument, in effect, it led to an early substantive hearing of the claim. That could be said of very many applications for permission which are heard orally and where there is a concession thereafter. In my judgment, that cannot amount to an exceptional reason.

Thirdly: the resources of the Secretary of State. Again, in my judgment, that self-evidently cannot be an exceptional reason. Fourthly, the lack of resources of the claimant: clearly that is a matter which is of concern to this court. The plain fact is that this claimant undoubtedly has a lack of resources, but the reality is that a person in the position of this claimant, namely a person who has made an application for asylum which has been refused, is always going to be in this position, or at least very usually is going to be in this position, and therefore that of itself cannot amount to an exceptional reason.

Fifthly, Mr Collins relies upon what he calls Article 6 ECHR implications. In my judgment that too cannot be an exceptional circumstance, since, in effect, it relates to the claimant's impecuniosity. I have also asked myself whether those factors, if not individually, can collectively amount to circumstances which could be categorised as exceptional. But, in my judgment, that is not the case. The reality is that this is said to be exceptional because the claimant is impecunious. In my judgment that cannot of itself amount to exceptional circumstances, to depart from what would normally be the order for costs.

It has been submitted to me, in my event, on behalf of the Secretary of State, that the claimant's impecuniosity is not a factor at all to be taken into account in the exercise of my discretion. I have heard no authority on this point one way or the other, but certainly on a provisional basis I would be disposed to accept that that is right. Otherwise the mere fact of impecuniosity would distort what would normally be an order for costs. In my judgment that cannot be the case.

Accordingly, it seems to me, firstly, because I cannot be satisfied that the claimant was very likely to succeed, and, secondly, because, in my judgment, there are no exceptional circumstances in this case, I ought, in the end, to be guided by what Scott Baker J said in Boxall and put succinctly: in the absence of a good reason the normal order is that there should be no order for costs.

Despite the persuasive and determined arguments of Mr Collins, in the end I have been unable to discern the good reason why I should depart from what is normally done in this court. That being my state of mind the order that I make is that there be no order for costs in this case.

MR COLLINS: My Lord, if I might ask for, obviously, a detailed Legal Aid assessment, as far as that goes in respect of the case?

THE DEPUTY JUDGE: Yes.

MR COLLINS: My Lord, if I might also canvas, with respect, of course, I would ask for permission to appeal. If I could refer my Lord very briefly to paragraph 47 of the Mount CookLand case, the comments of the Court of Appeal there are about the considerable public importance of this type of issue, yet on a perusal of that case, given that it looks at the position of respondents/defendants, there is no reference by the Court of Appeal to situations in cases such as this. My submissions encompass that there were common strands about impecuniosity and the financial situation of the parties.

Secondly, my Lord, on the basis of this threshold. My learned friend raised, as I put it, the threshold, in respect of what a claimant had to show as to likelihood of success. My Lord refers to "very likely", I refer to one of the authorities referring to the likelihood being "probable". It is apparent that all the authorities referred to in Boxall -- none of them are Court of Appeal authorities, they are all High Court authorities, and there must be some confusion as to what threshold a claimant has to obtain in respect of likelihood of success.

On that basis, my Lord, with the importance of the issues raised, and in particular in respect of claimants in this situation, as my Lord rightly points out, there is no authority on the point in respect of impecuniosity. With respect this is a matter which perhaps deserves the attention of the Court of Appeal.

THE DEPUTY JUDGE: Well, Mr Collins, first of all, can I say, which perhaps I should have done, that so far as I was concerned Mount Cook afforded me no real assistance in the exercise of my discretion. But in relation to your wider points, although I see the force of why you put them to me, the reality is that this is peculiarly an exercise of a discretion by a judge of first instance. That being the case I think it not right that I should grant leave to appeal. If you can persuade their Lordships then so be it.

MR COLLINS: Thank you, my Lord.

MR O'CONNER: My Lord, the only matter remaining, because of this dispute on costs, there has actually been no formal order quashing the determination of the Immigration Appeal Tribunal. I would perhaps ask that you make an order in those terms?

THE DEPUTY JUDGE: Yes, I take it you do not object to that Mr Collins?

MR COLLINS: No, my Lord.

THE DEPUTY JUDGE: For the avoidance of any doubt I do make an order quashing the decision of the Immigration Appeal Tribunal which was given, I believe, on 13th January of this year. Is it necessary for me to remit it to the Immigration Appeal Tribunal or does that happen automatically?

MR O'CONNER: I believe that has happened automatically.

THE DEPUTY JUDGE: Yes, thank you very much.