Mozumder, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal on costs arises from litigation concerning an English language proficiency test (TOEIC) required for applicants seeking leave to remain in the UK. The test was administered by Company A, which used voice recognition software to detect cheating after a scandal involving proxy test takers. The Secretary of State made decisions cancelling or refusing leave to remain for numerous individuals alleged to have cheated.

The Appellant, a citizen of a foreign country, arrived in the UK as a student and was granted several periods of leave to remain. However, a removal decision was made against him under section 10 of the Immigration and Asylum Act 1999 on the basis that the TOEIC test he submitted was fraudulent. The Appellant sought judicial review challenging this decision but was initially refused permission, with the alternative remedy of an out-of-country appeal noted.

Following a significant Court of Appeal judgment in a related case, the Appellant was granted permission to apply for judicial review and the matter was remitted to the Upper Tribunal for a substantive hearing. Before the hearing, the parties agreed to a consent order dismissing the judicial review claim in exchange for the Secretary of State reconsidering the decision and providing an in-country right of appeal if the reconsideration was adverse.

The Upper Tribunal subsequently decided on costs, refusing an order for costs in favour of the Appellant. This decision was challenged on appeal to the Court of Appeal.

Legal Issues Presented

1. Whether the Upper Tribunal judge erred in law in her approach to the costs order following the consent order and partial success of the Appellant in the judicial review proceedings.
2. Whether the Appellant was entitled to recover costs of the judicial review proceedings before the Upper Tribunal and this appeal, given the subsequent outcome at the First-tier Tribunal.
3. The appropriate principles and application of the law relating to costs in judicial review and administrative cases, particularly in cases settled or compromised before a substantive hearing.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that he was entitled to costs because he had achieved at least partial success by securing the right to an in-country appeal, which was the substantive relief sought.
• He argued that the refusal to award costs failed to properly recognize the practical importance of the in-country right of appeal and the partial victory in the judicial review claim.
• The Appellant highlighted that the subsequent decision of the First-tier Tribunal accepting his evidence and allowing his appeal demonstrated that he was the successful party on the substantive issue.

Respondent's Arguments

• The Respondent submitted that the Upper Tribunal judge's decision to make no order as to costs was appropriate given that the Appellant had not succeeded in quashing the original removal decision and that the remedy was a compromise rather than a full victory.
• It was argued that the judicial review claim had not succeeded on the key issue of deception, which remained to be determined by the Upper Tribunal or First-tier Tribunal.
• The Respondent maintained that if costs were to be awarded, they should be limited or reserved until the substantive issues were resolved.
• Regarding the subsequent First-tier Tribunal decision, the Respondent contended that it should not affect the costs decision as it was based on evidence not before the Upper Tribunal judge at the time of her decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court identified a material error of law in the Upper Tribunal judge’s decision on costs, specifically her failure to recognize the Appellant’s partial success in obtaining the right to an in-country appeal through the judicial review proceedings. The Court emphasized that the Appellant’s judicial review was not wholly unsuccessful, as the substantive decision challenged was the removal without an in-country hearing, and the judicial review led to a remedy securing that right.

The Court acknowledged that if the judicial review had proceeded to a substantive hearing, or if the Rahman procedural route had been followed, the Appellant would likely have recovered costs. The procedural choice to resolve the judicial review by consent made costs allocation more complex but did not justify denying all costs.

The Court considered the subsequent First-tier Tribunal decision, which found in the Appellant’s favor on the substantive issue of deception, as relevant to the costs determination. It was held appropriate to consider this outcome because the Court was remaking the costs decision after setting aside the earlier order for error of law.

The Court rejected the Respondent’s argument that only a proportionate costs award was appropriate, finding that the main issues justified a full costs award to the Appellant. The Court applied established legal principles from precedent cases concerning costs discretion, partial success, and procedural fairness.

Holding and Implications

The Court allowed the appeal on costs and ordered the Respondent to pay the Appellant’s reasonable costs of the judicial review proceedings before the Upper Tribunal and of the appeal to the Court of Appeal.

The Respondent was also ordered to make an interim payment of costs within 14 days. The costs are to be subject to detailed assessment if not agreed.

The decision directly affects the parties by requiring the Secretary of State to bear the Appellant’s costs, reflecting recognition of the Appellant's partial success and ultimate substantive victory. No new legal precedent was established beyond the application of existing principles to the facts of this case.