Self‑Imposed Decision Deadlines, “Aims To” Assurances and Costs in Judicial Review: Commentary on Nisar & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1646

1. Introduction

This Court of Appeal judgment addresses a narrow but practically important question: when a public authority, in pre‑action correspondence, gives a date by which it will (or will “aim to”) make an immigration decision, what are the cost consequences if the deadline is missed and the applicant brings judicial review proceedings for delay?

The appeals in Nisar and Mammedov concerned only the allocation of costs in judicial review claims that had become academic once the Home Office eventually made fresh decisions refusing entry clearance. The core legal questions were:

When can an applicant who sues for delay after a missed deadline be treated as the “successful party” for costs purposes, even if the substantive immigration outcome remains adverse?
What causal link between the judicial review and the decision is required before costs are awarded?
How strictly must claimants comply with the Pre‑Action Protocol for Judicial Review when the Secretary of State has already engaged in pre‑action correspondence and promised a decision by a particular date?

The Court (Bean LJ giving the lead judgment, with King and Warby LJJ agreeing) used the paired appeals to refine the law in three important ways:

It held that a firm written assurance that a decision “will be made” by a specified date, “absent special circumstances”, can amount to a public law legal obligation, breach of which can justify judicial review and a costs order in the claimant’s favour even if the delay is short.
It drew a sharp distinction between such firm commitments and more tentative statements that the Secretary of State merely “aims to” decide by a given date, which do not create an equivalent legal obligation.
It clarified that the statement in Speciality Produce that a claim “must be causative of the relief” should not be treated as imposing a rigid, statute‑like causation test in every costs dispute in public law.

The combined effect is a nuanced framework for future costs disputes in immigration delay judicial reviews, particularly where the Home Office has promised – but then missed – a decision deadline in pre‑action correspondence.

2. Factual Background

2.1 The Nisar proceedings

The appellants in Nisar were a Pakistani mother, Mrs Benish Nisar, and her four children, all seeking visit visas to the UK. Between June 2022 and June 2023, their applications were refused five times, against a background of persistent pre‑action correspondence and one earlier judicial review in which the Secretary of State had already agreed to pay costs.

The key chronology is:

8 June 2022: First visit visa application.
29 August 2022: First refusal.
5 September 2022: First pre‑action protocol (PAP) letter.
15 September 2022: SSHD agrees to reconsider.
3 November 2022: Second refusal (on reconsideration).
21 November 2022: Second PAP letter.
16 January 2023: First judicial review claim issued.
23 February 2023: Consent order: SSHD agrees to reconsider and to pay the claimants’ reasonable costs.
12 April 2023: Third refusal.
18 April 2023: Third PAP letter.
2 May 2023: SSHD again agrees to reconsider.
16 June 2023: Fourth refusal.
23 June 2023: Fourth PAP letter.

In response to that fourth PAP letter, the Home Office first stated (on 5 July 2023) that it “aims” to issue a reconsidered decision by 16 October 2023, “barring complexities”. The claimants’ solicitors rejected that timetable as excessive, highlighting the “history of issuing a decision with faulty reasoning and then conceding the same once challenged”. They insisted on a decision within six weeks, by 21 August 2023.

Importantly, on 25 July 2023 the Secretary of State’s representatives replied:

“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.”

No “special circumstances” were ever advanced. In fact, the decision to refuse the applications for a fifth time was taken on 22 August 2023, one day late, and not notified immediately. Before learning of that decision, Mrs Nisar’s solicitors issued a judicial review claim on 22 August 2023 complaining of the delay and the missed deadline. The claim was later withdrawn by consent once the decision was served on 23–24 August, with costs left for the Upper Tribunal to determine.

The Upper Tribunal (UTJ Sheridan) made no order as to costs, essentially because:

the Home Office had missed the deadline by only one day; and
the applicants could (and should) have contacted the Home Office against to ask when the decision would be taken instead of issuing proceedings straight away.

Permission to appeal was granted by Asplin LJ on the basis that there was a real prospect of showing that this exercise of discretion was irrational or wrong in principle.

2.2 The Mammedov proceedings

The appellant in Mammedov was a Turkmen national living in Turkey as a student. He applied for a visit visa on 28 August 2024. The application was refused twice in late 2024. On each occasion a pre‑action letter prompted the Secretary of State to agree to reconsider and, on the second occasion, to give a time estimate for the reconsidered decision.

The crucial letter was dated 20 December 2024:

“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)…

3-months is therefore the standard timeframe for reconsideration to ensure all relevant checks are conducted thoroughly.”

As 20 March 2025 approached, the Secretary of State sent emails directly to Mr Mammedov asking for proof of his right to work in Turkey. His solicitors, SAJ Legal, sent a short email reminder on Sunday 16 March 2025:

“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.”

No fresh pre‑action letter specifically challenging delay was sent. When no decision was received by 20 March, judicial review proceedings were issued on 21 March 2025. A third refusal decision followed on 28 March 2025. The claim was then withdrawn by consent, with costs to be determined by the Upper Tribunal.

UTJ Hirst, applying the guidance in M v Croydon, accepted that:

since a decision had been obtained post‑issue, the applicant should be regarded as the successful party in a broad sense; but
there was a good reason to depart from the normal order that costs follow the event, namely the claimant’s failure to comply with the pre‑action protocol in relation to the new delay complaint.

He therefore also made no order as to costs. Permission to appeal was granted by Laing LJ, who regarded the interaction between missed “absent special circumstances” deadlines and pre‑action conduct as an issue of general importance.

3. Summary of the Court of Appeal’s Judgment

3.1 Outcome

Nisar: Appeal allowed. The Court of Appeal held that the appellants had been wholly successful in obtaining the relief sought (a decision by the promised date), that they acted reasonably in issuing judicial review when the deadline was missed and no explanation or extension was given, and that the Secretary of State should therefore have been ordered to pay their costs up to the compromise of the claim.
Mammedov: Appeal dismissed. The Court held that the Home Office’s letter stating that it “aims to” decide within three months did not create a comparable legal obligation; the delay was not yet manifestly unreasonable; and the claimant’s failure to send a fresh, compliant pre‑action letter about delay was a proper ground for the Upper Tribunal to depart from the usual costs rule by making no order.

3.2 Key holdings

A time‑specific statement that a decision “will be made by [date], absent special circumstances” in pre‑action correspondence can be “sufficiently clear to amount to a legal obligation” in public law, even if it is not enforceable by specific performance or contempt.
Where such a legal obligation is breached and proceedings are issued reasonably in response, a claimant who then receives the decision – even a refusal – can fall within category (i) of M v Croydon, i.e. a wholly successful claimant entitled to their costs, absent good reason to the contrary.
By contrast, a statement that the Secretary of State merely “aims to issue” a decision by a particular date is an aspirational timescale, not a binding legal obligation. Missing such an indicative target, without more, does not automatically make judicial review proceedings reasonable or successful for costs purposes.
The proposition in Speciality Produce that a claim “must be causative of the relief” obtained does not impose a strict or mechanistic causation test in every case. In some contexts, particularly where the Defendant has voluntarily assumed a deadline obligation in response to pre‑action pressure, the court can infer that the proceedings and the pre‑action threat were materially linked to the timing of the decision, without detailed evidential inquiry.
Where an issue (here, delay) is new in the sense that it was not the subject of the original PAP letter, the claimant is normally expected to send a fresh, protocol‑compliant pre‑action letter on that issue before issuing judicial review. A mere reminder email threatening proceedings is insufficient, and non‑compliance can justify a no‑costs order even for a broadly successful claimant.

4. Precedents Cited and Their Influence

4.1 Appellate restraint in costs appeals – Roache and its progeny

The Court reaffirmed the orthodox approach, drawn from Roache v News Group Newspapers Ltd [1998] EMLR 161 and repeatedly approved in later cases such as Burgess v Lejonvarn and Parveen v Redbridge LBC, that:

Before an appellate court can interfere with a costs order, it must be shown that the judge has:

erred in principle;

left out of account a relevant factor or taken into account an irrelevant one; or

reached a decision so plainly wrong that it can only be explained by a failure properly to balance the factors in play.

This standard framed the Court’s task: the question was not simply whether it would have made the same costs orders as the Upper Tribunal, but whether those orders were wrong in principle or irrational. In Nisar the Court concluded that UTJ Sheridan had misdirected himself in relation to the nature of the Secretary of State’s obligation and the reasonableness of issuing proceedings, thereby justifying intervention. In Mammedov it found no such misdirection.

4.2 M v Croydon: Categorising success in judicial review settlements

Lord Neuberger MR’s judgment in R (M) v Croydon LBC [2012] EWCA Civ 595 is now the classic authority on costs in judicial review claims that settle or become academic. The Court in Nisar re‑emphasised several principles:

Costs are discretionary, but the discretion must be exercised rationally and consistently with CPR 44.3.
The general rule remains that the “successful party” should have their costs, subject to good reason to depart from that starting point.
Funding arrangements (e.g. legal aid, CFAs, pro bono) rarely affect entitlement to costs.
Cases where the claim is compromised or rendered academic can broadly be divided into three categories:
1. (i) Wholly successful: the claimant obtains, whether by judgment or settlement, all or substantially all the relief sought. They should generally recover their costs, absent special circumstances.
2. (ii) Partially successful: the claimant obtains some but not all of the relief. The court often, though not always, makes no order as to costs unless it can fairly identify the extent of success.
3. (iii) Compromise not reflecting the pleaded relief: default position is usually no order as to costs, save where it is tolerably clear who would have won had the case gone to trial.

Bean LJ explicitly placed Mrs Nisar’s claim in category (i). Although she never obtained a grant of entry clearance, the relief realistically achievable in such public law proceedings was a lawful, timely decision, not a visa as of right. Once a decision was secured in circumstances where the Home Office had breached its own deadline, she was to be treated as wholly successful for costs purposes.

4.3 Tesfay: Success in public law and the notion of “substantial achievement”

In R (Tesfay) v SSHD [2016] EWCA Civ 415, Lloyd Jones LJ emphasised that success in public law must be gauged by what is realistically achievable:

“…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… Nevertheless, to achieve an order for reconsideration will often be a substantial achievement.”

This analysis underpins the Court’s approach in Nisar and Mammedov. In visitor visa cases, there is no right to entry; what the court can secure is a decision taken lawfully and without unreasonable delay. The appellants measured their success by that yardstick; the Court accepted that framing in principle, but distinguished between the two appeals on the strength of the Secretary of State’s commitments and the parties’ pre‑action conduct.

4.4 Speciality Produce: Causation and parallel routes to relief

Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225 concerned a claimant who pursued both judicial review and a statutory appeal, succeeding via the latter. Vos J and, on appeal, Patten LJ declined to award judicial review costs where the statutory route had in fact produced the relief. Patten LJ stated at [29]:

“…the claim must be causative of the relief obtained.”

Bean LJ’s treatment of this dictum is central to the new precedent set by Nisar. He cautions against treating it as if it were a statutory test or a rigid rule to be mechanically applied:

“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 Nisar, there was no parallel statutory route. More importantly, the relief sought was a decision by a particular date, and the Secretary of State had already accepted a deadline obligation. Bean LJ concludes that:

Given the protracted history and the unequivocal “will decide by” commitment, it was reasonable to infer that, “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”.
In such a case the conventional, granular causation inquiry in Speciality Produce is unnecessary and inappropriate.

Thus Nisar softens and contextualises the “must be causative” formulation in the specific setting of self‑imposed deadlines and delay litigation.

4.5 RL v Croydon: Measuring “success” where only timing is in issue

R (RL) v Croydon LBC [2018] EWCA Civ 726 is a leading case on costs where a claimant alleges unlawful delay in performing a duty that the authority has already accepted. Underhill LJ held that:

“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.”

Because there was no evidence in RL that the judicial review accelerated the local authority’s assessment, the claimant was not treated as successful for costs.

Bean LJ draws a contrast with Nisar:

In RL, there was nothing to suggest that the timing of the assessment was materially affected by the litigation.
In Nisar, the Secretary of State had voluntarily assumed a time‑specific obligation in response to pre‑action pressure. The claim was issued promptly once that obligation was breached.
Bean LJ treats it as “plain” that without the deadline – and the credible threat of litigation – the decision would have been even later.

Thus, while RL underscores the need for some causal link between proceedings and timing, Nisar indicates that the court may draw that link more readily where the authority has expressly bound itself to a date.

4.6 ZN (Afghanistan), Parveen and access to justice

In ZN (Afghanistan) v SSHD [2018] EWCA Civ 1059, Singh LJ stressed that the normal rule on costs rests on the idea that a party has been compelled to litigate to vindicate legal rights that were not respected. Administrative failures extrinsic to the litigation, even if they make it sensible to concede, do not automatically justify an award of costs:

“…there will normally be a causal link between the fact that costs have been incurred and the underlying merits of the legal claim.”

Leggatt LJ, however, in the same case highlighted that the public interest in facilitating access to justice has three effects:

It encourages the court to undertake a serious analysis of success rather than lazily defaulting to “no order”.
It counsels against setting the bar for “success” too high: achieving “any material part” of the relief may suffice.
It cautions against too readily depriving a claimant who has achieved material success of their costs, provided the claim was reasonably conducted.

Bean LJ’s judgment in Nisar is clearly influenced by this more claimant‑friendly approach to success and causation in judicial review, while remaining faithful to the need for some link between the litigation and the outcome.

Finally, Parveen v Redbridge LBC [2020] EWCA Civ 194 re‑emphasises that even if a claimant obtains the relief sought, costs may still be refused where that relief would have occurred anyway:

“The fact that the claimant has obtained the relief… does not necessarily mean that the existence of the proceedings has caused or contributed to that result.”

Bean LJ cites Parveen in support of the broader proposition that causation is often decisive. What Nisar adds is that, in the specific (and common) scenario where a public authority has committed to a fixed date in pre‑action correspondence, a court may be prepared to treat that commitment, and its breach, as sufficient evidence of a causative link between the litigation threat and the eventual decision.

4.7 Ullah and manifestly unreasonable delay

In the Mammedov segment, the Court briefly refers to R (Ullah) v SSHD [2022] EWCA Civ 550 for the proposition that, to succeed in a pure delay challenge, the delay must normally be manifestly unreasonable having regard to all the circumstances. Bean LJ uses this to underline that the minor slippage beyond an aspirational three‑month timescale in Mammedov did not, without more, reach the threshold required for a sustainable judicial review of delay.

5. The Court’s Legal Reasoning

5.1 The nature of the Secretary of State’s commitments

The central doctrinal move in Nisar is the distinction between:

a statement that a decision “will be made by [date], absent special circumstances”; and
a statement that the Secretary of State merely “aims to issue” a decision by a certain date.

Bean LJ holds that the former, in context, created a legal obligation:

“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.”

Several features justify this conclusion:

Language of certainty: “will be made by 21 August 2023” is promissory, not merely indicative.
Qualification is limited: the only caveat is “absent special circumstances”, which were never asserted.
Context: there was a long history of pre‑action correspondence and prior judicial review in which the Secretary of State had conceded and paid costs. The deadline was offered in direct response to robust pressure from the appellants’ solicitors.

By contrast, in Mammedov, the Secretary of State’s letter used materially different wording:

“… the SSHD aims to issue a reconsidered decision… within 3 months… by 20 March 2025, absent special circumstances.”

Bean LJ describes this as a statement of an aim, a standard timeframe for reconsideration, not a binding promise. The court emphasises that:

Such an “aims to” assurance does not itself create a legal duty to decide by that date.
A short overrun of an indicative target, without manifest unreasonableness or further pre‑action engagement, does not automatically justify judicial review or costs in the claimant’s favour.

5.2 Reasonableness of issuing proceedings after a missed deadline

5.2.1 Nisar

The Upper Tribunal in Nisar criticised both parties: the Secretary of State for not informing the claimants that the decision would be slightly late, and the claimants for not checking with the Home Office before issuing proceedings. Bean LJ agreed with the first criticism but rejected the second.

He places weight on:

the clarity and firmness of the 25 July 2023 letter;
the absence of any claimed “special circumstances” for missing the deadline; and
the already protracted and unsatisfactory history of repeated refusals and reconsiderations.

Against that backdrop, he held it was reasonable for the claimants’ solicitors to issue judicial review proceedings promptly on 22 August 2023 when:

the promised date (21 August) had passed without any decision or explanation; and
they had no way of knowing that a refusal decision had in fact already been taken (but not yet served).

The Court also stresses the administrative law principle that a decision of this kind is not effective until communicated. Accordingly, on 22 August there had been:

a breach of the time‑specific legal obligation to decide by 21 August; and
a continuing failure to communicate any decision.

In those circumstances, issuing judicial review was neither premature nor disproportionate.

5.2.2 Mammedov

In Mammedov, there was no comparable firm obligation. The Secretary of State had:

merely indicated that she aimed to decide within three months;
sent follow‑up emails seeking further information from the applicant; and
not been the subject of any prior complaint about delay.

The claimant’s solicitors sent only a brief reminder email on 16 March 2025 threatening proceedings if no decision was made by 20 March, without:

setting out any public law grounds for alleging unlawful delay;
identifying the alleged breach of duty; or
allowing any realistic opportunity for a reasoned response.

Bean LJ endorses UTJ Hirst’s view that issuing judicial review in these circumstances, without a proper delay‑focused PAP letter and before the delay had become manifestly unreasonable, was not conduct that should attract a favourable costs order.

5.3 Classifying the claims under M v Croydon

5.3.1 Nisar as a category (i) case

Bean LJ holds that Nisar falls “fairly and squarely” into category (i) of M v Croydon:

“The threat of the claim achieved all that the Appellants were seeking.”

The relief sought in the delay claim was not a visa, but a timely decision, in accordance with the previously agreed deadline. That is exactly what the litigation – in conjunction with the pre‑action correspondence – secured, albeit a day late and in the form of a refusal.

Accordingly:

The appellants were to be treated as having been vindicated in their challenge to delay.
Absent good reason to the contrary, they should have been awarded their costs up to the date of compromise.

5.3.2 Mammedov: successful but with good reason to depart from the norm

In Mammedov, UTJ Hirst had already acknowledged that the applicant was “to be regarded as the successful party” because a decision was ultimately obtained. Bean LJ does not disturb that characterisation. Instead, the Court affirms that this is one of those cases in which there is a good reason to depart from the normal order that the successful party recovers costs, namely:

the claimant’s failure to comply with the pre‑action protocol in relation to the new delay complaint; and
the modest degree of delay beyond an aspirational target that did not yet amount to unlawfulness.

This approach is squarely in line with M v Croydon, where failure to adhere to a relevant protocol is expressly listed as a factor that can justify a departure from the ordinary “costs follow the event” rule.

5.4 Pre‑action protocol compliance and the overriding objective

A significant aspect of the Court’s reasoning in Mammedov concerns the content and purpose of the Pre‑Action Protocol for Judicial Review. UTJ Hirst had held that:

The original PAP letter of 13 December 2024 challenged the substance of the 12 December decision, not delay.
The issue of delay was new and therefore required a fresh PAP letter.
The 16 March 2025 “reminder” email was not compliant in form or substance: it did not identify proposed grounds of challenge or give the Secretary of State a fair opportunity to respond.

Bean LJ expressly endorses this analysis:

“…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.”

The reference to the overriding objective (CPR 1.1) highlights that:

Pre‑action correspondence is not a mere formality; it is integral to resolving disputes justly and at proportionate cost.
Where a new alleged unlawfulness (here, delay) arises, parties should ordinarily engage via a fresh PAP letter, even if they have already corresponded robustly about the merits of earlier decisions.

The Court thus sends a clear signal: even in areas like immigration delay where pre‑action exchange is frequent and sometimes fraught, protocol compliance remains a live and important factor in cost decisions.

6. Impact and Significance

6.1 For claimants and their advisers

The judgment has several practical consequences for immigration practitioners and public law litigators:

Value of firm deadlines in pre‑action correspondence Where a claimant can secure, in writing, a clear assurance that a decision “will be made by” a specified date “absent special circumstances”, that assurance may:
- create a public law obligation enforceable by judicial review; and
- position the claimant as a wholly successful party for costs purposes if proceedings are reasonably issued upon breach and a decision follows.
Need to distinguish “will” from “aims to” Practitioners should carefully scrutinise the wording of Home Office correspondence:
- “Will decide by [date]” signals a commitment.
- “Aims to decide by [date]”, “expects”, or “hopes” are indicative only, and do not, by themselves, ground a strong delay claim after a short slippage.
Timely issue of proceedings when a firm deadline is breached Where a firm deadline is missed with no explanation or request for extension, immediate judicial review may be reasonable and can lead to a favourable costs order even if the delay is only a few days. The Court has rejected the idea that claimants must always “chase” again before litigating in such circumstances.
Importance of a fresh PAP letter on delay If the ground of challenge changes from substantive unlawfulness to delay, a fresh protocol‑compliant letter is generally required:
- It must identify the decision (or failure to decide) being challenged;
- set out the legal basis for alleging that the delay is unlawful; and
- state the relief sought, usually a decision by a particular date.
A brief email reminder threatening proceedings, as in Mammedov, is not enough.
Causation remains important but is applied with nuance Claimants should still be prepared to explain how their proceedings (or pre‑action threat) contributed to the timing of the decision. However, Nisar confirms that in some contexts – particularly where the authority has accepted a deadline – the court may infer causation without demanding detailed proof.

6.2 For the Secretary of State and public authorities

Public authorities, especially the Home Office, need to draw careful lessons from this judgment:

Drafting of pre‑action responses The choice between “will decide by” and “aims to decide by” is not mere semantics:
- Using promissory language in response to pre‑action pressure may create a time‑bound legal obligation with costs consequences if breached.
- If a timescale is genuinely only a target, that should be made explicit and caveated appropriately.
Duty of candour and communication Once a firm deadline is given, fairness requires that:
- if the deadline cannot be met, the authority should inform the claimant before it expires, explaining any “special circumstances” and suggesting a revised timetable;
- failure to do so will weigh against the authority in any subsequent costs dispute, as UTJ Sheridan and Bean LJ both recognised.
Internal case management The pattern in Nisar – multiple flawed refusals, repeated reconsiderations and a prior costs order – illustrates the institutional risks of weak initial decision‑making. Every further reconsideration under litigation pressure increases:
- the likelihood that a firm deadline will be demanded; and
- the exposure to adverse costs if that deadline is missed.
Encouraging proper use of the pre‑action protocol The Court’s endorsement of UTJ Hirst’s approach in Mammedov should reassure public bodies that they will not necessarily face adverse costs where:
- no firm deadline obligation has been assumed;
- the delay is not manifestly unreasonable; and
- the claimant has failed to observe the spirit and letter of the pre‑action protocol.

6.3 For courts and tribunals

The judgment provides structured guidance to the Upper Tribunal and Administrative Court on how to approach costs in “missed deadline” judicial reviews:

Scrutinise the precise language of any time commitments.
Consider whether, in context, a document amounts to a legal obligation or merely an indicative timescale.
Analyse whether it was reasonable to issue proceedings at the time they were issued, having regard to:
- the existence and breach of any such obligation;
- the history of correspondence and prior proceedings; and
- the degree of delay beyond any stated timeframe.
Evaluate pre‑action compliance carefully: failure to send a proper PAP letter on a new issue may justify a no‑costs order, even where the claimant can be regarded as having some measure of success.
Apply M v Croydon flexibly, being willing to:
- treat some delay cases as category (i) where the relief realistically obtainable has been fully achieved; and
- decline costs where causation or reasonableness is lacking, as in RL, ZN, and Parveen.

7. Simplifying the Key Legal Concepts

7.1 Judicial review in immigration decision‑making

Judicial review is a procedure by which the courts supervise the lawfulness of decisions by public bodies. In visitor visa cases, applicants usually cannot appeal to a tribunal on the merits. Judicial review is often their only remedy, but it is limited to:

whether the decision was lawful, rational, and procedurally fair; and
whether any delay in deciding was so excessive as to be unlawful.

The court generally cannot order that a visa be granted; it can only order that a decision be made, or remade, according to law and without further unreasonable delay.

7.2 The Pre‑Action Protocol (PAP)

The PAP is a set of rules governing how parties should behave before judicial review proceedings are issued. Its aims are to:

give the public authority a clear summary of the proposed claim;
allow time to correct errors, reconsider a decision, or provide further reasons; and
avoid unnecessary litigation and costs where possible.

A compliant PAP letter should:

identify the decision or omission being challenged;
set out facts and legal grounds;
state the remedy sought; and
give a timeframe for response.

In Nisar, the PAP process was used repeatedly and fairly fully. In Mammedov, while there was an earlier PAP letter on the merits, the delay claim was raised only via a brief reminder email, which the Court held was not PAP‑compliant.

7.3 “Costs follow the event” and “no order as to costs”

Civil courts in England and Wales operate on the principle that “costs follow the event”: the losing party usually pays the winning party’s legal costs. In judicial review:

the “event” is often whether the claimant has obtained the relief realistically sought (e.g. a decision, a reconsideration), not necessarily whether they secured their ultimate substantive outcome (e.g. a visa).
a “no order as to costs” ruling means each side bears its own costs.

Because many judicial reviews settle or become academic after a decision is made, courts have to work out, on a summary basis, who can fairly be said to have “won” and whether there is any good reason to depart from the usual rule.

7.4 Legal obligation vs. aspirational timescale

A legal obligation in this context is a commitment that the public authority is expected, as a matter of public law, to honour. If it is breached, the affected person may have an arguable judicial review claim. In Nisar:

“will be made by 21/08/2023, absent special circumstances” was such a commitment.

An aspirational timescale, by contrast, is a target or goal that the authority hopes to meet but does not strictly promise. In Mammedov:

“aims to issue… within 3 months… by 20 March 2025” was only a target, even though it also used the phrase “absent special circumstances”.

This distinction is crucial: missing a legal obligation deadline may justify immediate judicial review and costs; missing an aspirational target normally will not, at least not by a short margin.

7.5 Manifestly unreasonable delay

Courts accept that immigration and asylum decisions can legitimately take time. A delay becomes manifestly unreasonable when, considering:

the type of decision;
operational constraints and security checks;
any complexity in the case; and
promises previously made by the authority,

the period taken exceeds what is objectively justifiable. In Ullah, the Court of Appeal stressed that delay alone is not enough; it must be so excessive as to be unlawful. In Nisar, the focus was not merely on the length of delay but on the breach of an agreed deadline. In Mammedov, the Court considered that the delay had not yet crossed the unlawfulness threshold.

7.6 The overriding objective

The overriding objective in the Civil Procedure Rules (CPR 1.1) requires cases to be dealt with justly and at proportionate cost. It underpins:

the expectation that parties will engage meaningfully at pre‑action stage;
the need to avoid precipitate litigation where a pre‑action letter could resolve the matter; and
judicial decisions to depart from normal costs rules where a party’s conduct has unduly escalated costs.

In Mammedov, it justified treating the failure to send a proper PAP letter on delay as a good reason to make no order as to costs.

8. Conclusion

Nisar & Ors v SSHD [2025] EWCA Civ 1646 is a significant Court of Appeal authority at the intersection of immigration judicial review, pre‑action practice, and costs. It establishes that:

A firm, time‑specific assurance in pre‑action correspondence that a decision “will be made by” a particular date, “absent special circumstances”, can amount to a legal obligation. Breaching that obligation may render judicial review proceedings both reasonable and successful for costs purposes, even if the resultant decision is a refusal and the delay is short.
The statement in Speciality Produce that the claim “must be causative of the relief” obtained should not be applied as an inflexible causation test in every public law costs dispute. In cases like Nisar, courts may infer a causal link from the acceptance and subsequent breach of a clear deadline.
By contrast, where the Secretary of State merely “aims to” decide by a given date, a modest slippage beyond that aspirational timescale will not normally justify adverse costs orders if:
- the delay is not manifestly unreasonable; and
- the claimant has not sent a proper PAP letter on delay before issuing proceedings.
Pre‑action protocol compliance remains central. A fresh ground of challenge – such as delay – usually demands a fresh, compliant PAP letter. A reminder email threatening litigation is insufficient, and failure to comply can be a decisive factor in making no order as to costs.

Doctrinally, the judgment refines the application of M v Croydon, RL v Croydon, Speciality Produce, ZN (Afghanistan) and Parveen to delay‑based judicial reviews, and it provides concrete guidance on when claimants can be treated as wholly successful where the only achievable remedy is a decision itself. Practically, it will influence how both claimants’ lawyers and the Home Office draft and respond to pre‑action correspondence, and how tribunals approach costs following late but ultimately delivered decisions.

In sum, Nisar establishes a clear and important principle: when public authorities voluntarily commit to deciding by a particular date in response to pre‑action pressure, they assume a legal duty that carries real costs consequences if they fail to honour it. At the same time, the Court confirms that claimants must continue to respect the pre‑action protocol and cannot expect costs where they litigate prematurely against non‑binding targets. Together, Nisar and Mammedov mark a carefully balanced development in the law of costs in public law proceedings.

Self‑Imposed Decision Deadlines, “Aims To” Assurances and Costs in Judicial Review: Commentary on Nisar & Ors v SSHD [2025] EWCA Civ 1646