PETITION OF OA AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT

Factual and Procedural Background

The petitioner, representing a young adopted child, brought a judicial review following the refusal by the Secretary of State for the Home Department of the child's application under the EU Settlement Scheme to join family in the UK. The First-tier Tribunal (FtT) had determined that there was no right of appeal against the Secretary of State's refusal, a decision which was quashed by the court on the ground that the FtT failed to engage with the grounds of appeal or provide adequate reasoning. The matter was remitted to the FtT for redetermination. The Secretary of State did not enter appearance in the judicial review proceedings, which were unopposed due to an administrative oversight. The petitioner now seeks an award of expenses against the Secretary of State, which is opposed on the basis that the Secretary of State did not resist the petition and was not responsible for the circumstances necessitating court proceedings.

Legal Issues Presented

1. Whether an award of expenses should be made against the Secretary of State where the judicial review petition was unopposed due to administrative oversight.
2. Whether the decision on expenses should be postponed until the final outcome of the underlying application for the child's permission to enter the UK is resolved.
3. The appropriate principles and application of the general rule that expenses follow success in the context of unopposed judicial review petitions related to immigration decisions.

Arguments of the Parties

Appellant's Arguments

• Expenses should follow success as a general rule; the refusal by the Secretary of State triggered the appeal and subsequent judicial review.
• Court proceedings are a separate process and expenses should be resolved now rather than delayed.
• Reference to awards against interested parties in other appeal contexts supports immediate resolution.
• The child is legally aided, but practitioners rely on awards of expenses to maintain viability of this area of work.

Respondent's Arguments

• The Secretary of State did not oppose the petition and was not responsible for the need for court proceedings due to administrative oversight.
• Successful and unsuccessful parties cannot yet be identified until the underlying application is resolved.
• Relied on Court of Appeal decisions suggesting that costs orders in such circumstances should be postponed or transferred until the overall outcome is known.
• The Secretary of State’s refusal was made in accordance with Immigration Rules and was not challenged on its merits.
• It would be inappropriate to make an award of expenses now as the judicial review success may be a pyrrhic victory.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the general rule that expenses follow success, rooted in the causal link between the conduct of the paying party and the incurrence of costs. However, in judicial review petitions, especially unopposed ones, the identification of successful and unsuccessful parties is not straightforward. The court noted that judicial review is an equitable remedy and success in such petitions does not automatically entitle the petitioner to expenses.

The court considered the unusual circumstances of this case, including the Secretary of State’s non-appearance due to administrative oversight and the fact that the Secretary of State had not caused the failure of the FtT to engage with the grounds of appeal. Despite this, the Secretary of State remained the petitioner’s true opponent in the underlying dispute, and there was a sufficient causal link between the Secretary of State’s refusal and the need for judicial review proceedings.

The court weighed the competing considerations of awarding expenses now versus reserving the decision until the underlying immigration matter is resolved. It recognized that reserving or transferring costs decisions may prolong proceedings indefinitely and create uncertainties. The court also noted the importance of prompt resolution of discrete parts of litigation to avoid difficulties.

Having regard to the authorities, the court expressed concern about adopting a practice of reserving costs decisions in cases of this nature, emphasizing that judicial review proceedings are often distinct and capable of closure when decided on their merits. The court found that while the Secretary of State did not oppose the petition, the petitioner was successful and the refusal by the Secretary of State was the operative cause for the judicial review.

Balancing the factors, the court exercised its wide discretion and concluded that an award of expenses was appropriate but should be modified to reflect the Secretary of State’s non-opposition and lack of direct involvement in the procedural defect. The court therefore ordered a 50% award of the petitioner’s expenses against the Secretary of State, emphasizing that this decision was specific to the unusual facts of the case and not intended as general guidance.

Holding and Implications

The court awarded the petitioner 50% of their expenses against the Secretary of State, modifying the usual rule of expenses following success to reflect the particular circumstances of administrative oversight and non-opposition.

The direct effect of the decision is that the petitioner recovers a substantial portion of their costs despite the Secretary of State not opposing the petition, recognizing the causal link between the Secretary of State’s refusal and the need for judicial review. The court explicitly stated that this ruling is limited to the facts of this case and does not establish a general principle or precedent for all similar cases.