Factual and Procedural Background
The Supreme Court delivered its decision in a test case concerning human rights claims under the Dublin II Regulation, reversing the Court of Appeal and remitting the cases to the Administrative Court. Following this, the Secretary of State withdrew certification of human rights claims in over 300 cases. The appeals and applications before this court relate to appropriate costs orders following these withdrawals.
The cases fall into three groups: first, appellants challenging decisions certifying their human rights claims as clearly unfounded and their removal to Italy; second, applications raising similar issues concerning removal to Italy; and third, applicants challenging removal to Malta and certification of their human rights claims. The first two groups are collectively referred to as "the Italy applicants", and the third as "the Malta applicants".
The Italy applicants sought judicial review permission against certification and removal decisions. Although permission was not granted in these cases, proceedings were stayed pending the Supreme Court's decision. After the Supreme Court ruling, the Secretary of State withdrew the certifications by consent. The issue of costs was left to be determined and is now appealed.
The Malta applicants sought judicial review of certification and removal decisions; their claims were dismissed and permission to appeal refused initially, but later referred to the full court. Before substantive hearing, the Secretary of State withdrew certification of the human rights claims, and costs applications were consolidated with the Italy applicants' cases.
Legal Issues Presented
- Whether the court has jurisdiction to make costs orders for proceedings withdrawn before permission to appeal was granted.
- The appropriate approach to costs following withdrawal of certification of human rights claims after the Supreme Court decision.
- Whether the appellants/applicants should be regarded as successful parties entitled to costs despite withdrawal of the certification and no substantive hearing.
- Whether there are good reasons to depart from the general rule that the unsuccessful party pays costs in these circumstances.
Arguments of the Parties
Appellants' Arguments
- The judge below applied an unlawful test by focusing on who would have succeeded had the proceedings run their course, reverting to the Boxall approach rather than considering the extent of success achieved by settlement or withdrawal.
- The withdrawal of the certifications amounted to success and the appellants should receive their costs accordingly.
- The reasoning justifying costs for issuing proceedings applies equally to costs of continuing the proceedings, as the appellants had no alternative but to maintain them to prevent removal.
- The judge erred in concluding the appellants would not have succeeded on the merits; the Supreme Court decision vindicated their legal position.
Respondent's Arguments
- The judge was entitled to consider the prospects of success, including the likelihood of ultimate success on the merits.
- The respondent's approach to certification was lawful at the time, relying on binding Court of Appeal authority until reversed by the Supreme Court.
- The withdrawal of certification does not amount to acceptance of error; it was a procedural step to reconsider decisions in light of new legal developments.
- The Malta applicants sought to advance new legal arguments not raised below, justifying refusal of costs.
- The respondent should not be penalised for withdrawing and reissuing decisions rather than continuing proceedings on an erroneous basis.
- The respondent would ultimately have succeeded on the merits.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12 |
Clarified the test for risk of inhuman or degrading treatment under Article 3 ECHR in Dublin II cases; systemic deficiency not a necessary pre-requisite. |
Supreme Court decision led to withdrawal of certifications; established legal basis for claimants' success in costs applications. |
| R (on the application of Boxall) v Waltham Forest LBC (2001) |
Guidelines for costs awards where judicial review proceedings settle. |
Discussed and distinguished; court considered Boxall approach outdated for these cases. |
| M v Croydon London Borough Council [2012] EWCA Civ 595 |
Set out that claimants who obtain all relief sought should normally receive costs; nuanced approach for partial success. |
Applied as the prevailing framework for assessing costs entitlement. |
| R (on the application of Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895 |
Costs decisions in immigration judicial reviews must consider circumstances at date of assessment; no special rule for government departments. |
Supported the principle that publicly funded parties are entitled to costs and that pragmatic settlements should be justified. |
| R (TH) v East Sussex CC [2013] EWCA Civ 1027 |
First principle in M v Croydon is not absolute; parties have duty to take reasonable opportunities to settle. |
Reinforced approach to costs and settlement in public law litigation. |
| R (KR) v Secretary of State for the Home Department [2012] EWCA Civ 1555 |
Appellate interference with costs orders requires error in principle or irrationality. |
Guided appellate court's approach to reviewing costs orders below. |
| Hunt v North Somerset Council [2015] UKSC 51 |
Successful judicial review claimants are entitled to costs unless good reason shown otherwise. |
Supported claimants' entitlement to costs following Supreme Court victory. |
| Soering v United Kingdom (1989) 11 EHRR 439 |
Removal forbidden if real risk of treatment contrary to Article 3 ECHR. |
Supreme Court reaffirmed this as the critical test in Dublin II cases. |
| MSS v Belgium (2011) 53 EHRR 2 |
Systemic deficiencies in asylum procedures can breach Articles 3 and 13 ECHR. |
Contextual background for systemic deficiency test discussed and distinguished. |
| R (NS) v Secretary of State for the Home Department [2013] QB 102 |
Interpretation of Dublin II Regulation and EU Charter; systemic deficiencies may rebut presumption of compliance. |
Considered in relation to systemic deficiency and evidential presumptions. |
| R (E) v JFS Governing Body [2009] UKSC 1 |
Failure of legally aided litigant to obtain costs order may have serious consequences. |
Noted in relation to costs and legal aid issues. |
| R (A) v Chief Constable of Kent [2013] EWCA Civ 1706 |
Limits on considering fresh material post-decision; preference for procedural clarity. |
Supported respondent’s procedure in withdrawing and reissuing decisions. |
| R (Sabir) v Secretary of State for the Home Department [2015] EWCA Civ 1173 |
Emphasized strict compliance with procedural time limits. |
Referenced in context of respondent’s delay in lodging respondent’s notice. |
Court's Reasoning and Analysis
The court first addressed jurisdiction, concluding it had authority over costs incurred both before this court and below, including pre-permission costs, based on statutory provisions granting broad jurisdiction over costs incidental to appeals.
The court examined the approach to costs in settled judicial review proceedings, rejecting the judge below's focus on whether the claimants would have succeeded had the proceedings continued (the Boxall approach). Instead, the court emphasized the prevailing principle that where a claimant obtains all or substantial relief by settlement or withdrawal, they should normally receive their costs unless there is a good reason to depart.
The court analyzed the claimants' success, noting that although none obtained permission for judicial review, their legal arguments were ultimately vindicated by the Supreme Court decision in EM (Eritrea), which overturned the legal basis on which the Secretary of State had certified their claims as clearly unfounded. The withdrawal of certification was therefore regarded as a success for costs purposes.
The court rejected the respondent's arguments that non-compliance with the pre-action protocol or reliance on binding Court of Appeal authority before the Supreme Court decision justified denying costs, noting that the protocol was inapplicable given the short timeframes and policies requiring judicial review to halt removal.
The court also considered the nature of the litigation, recognizing the "rolling" or evolving judicial review process in third country cases, but found that the respondent's decision to withdraw and reissue certifications acknowledged legal error and was the appropriate course. The respondent could not avoid costs liability by this procedural choice.
Regarding the Malta applicants, the court found their success limited. Their claims had been dismissed at first instance, permission to appeal was refused, and they sought to advance new legal arguments not previously raised. The withdrawal of certification did not undermine the correctness of the earlier decisions. The court found strong reasons to deny costs to the Malta applicants, including false accounts given and reliance on new unestablished legal points.
The court declined to grant an extension for the respondent's late cross-appeal against costs awarded for issuing judicial review proceedings, citing inadequate explanation for delay and prior adverse comments about the respondent's approach to time limits.
Holding and Implications
The court allowed the appeals of the Italy applicants and the applications of the related claimants, ordering the respondent to pay their costs incurred up to the withdrawal of the human rights certification.
Conversely, the court made no order as to costs in respect of the Malta applicants, reflecting their limited success and conduct during proceedings.
The respondent's cross-appeal for permission to appeal out of time was refused.
The direct effect is that the Italy applicants recover costs up to the point of withdrawal, reflecting their substantial legal success, while the Malta applicants do not recover costs due to the limited nature of their success and procedural issues. No new precedent was established beyond application of existing principles on costs in public law judicial review settlements and withdrawals.