Summary of Opinion by Judge Bean (Court of Appeal)

Factual and Procedural Background

This opinion addresses two consolidated appeals concerned with the award of costs after applications for entry clearance to the United Kingdom were refused and then reconsidered. The common factual pattern in both matters was that foreign nationals (the Appellants) applied for visitor entry clearance, received refusals, pursued pre-action correspondence, and received assurances from the Respondent that the decisions would be reconsidered by a specified date "absent special circumstances." In each case the Respondent did not make the fresh decision by the date specified but did so shortly afterwards, again refusing entry clearance. The Appellants issued judicial review proceedings in relation to the delay between the promised date and the actual service of the decisions; the claims were discontinued by consent once the fresh decisions were served, leaving costs as the only issue for the courts.

Case A ("Nisar" family): The Appellants were a mother and four children. After multiple applications and rounds of pre-action correspondence across 2022–2023 the Respondent's entry-clearance team wrote on 25 July 2023 that, "absent special circumstances," a reconsidered decision would be issued by 21 August 2023. A decision refusing entry clearance was made on 22 August 2023 and was served on the Appellants' representatives on 23–24 August 2023. The Appellants had issued judicial review proceedings on 22 August 2023 (before receiving notification). The parties settled by consent as to substance but reserved costs. The First-tier/Upper Tribunal (judge below) ordered no order as to costs; permission to appeal that costs decision was later granted.

Case B ("Mammedov"): The Appellant was an individual who applied for entry clearance in late 2024. Following refusals and pre-action correspondence, the Respondent indicated by letter of 20 December 2024 that, "barring complexities," it aimed to issue a reconsidered decision within three months (by 20 March 2025). The Appellant's solicitors sent a reminder on 16 March 2025 indicating that proceedings would be issued if no decision were served by 20 March 2025. No decision was received by that date; judicial review proceedings were issued on 21/24 March 2025 and the Respondent made a fresh refusal decision on 28 March 2025. The claim was discontinued by consent save as to costs. The Upper Tribunal below ordered no order as to costs; permission to appeal that costs decision was later granted and consolidated for hearing with the Nisar appeal.

Legal Issues Presented

1. Whether, in the circumstances where the Respondent had undertaken in pre-action correspondence to make and serve a reconsidered decision by a specified date "absent special circumstances," a claimant who issued proceedings after that date but before being served with a late decision should be regarded as the successful party for costs purposes (i.e., whether the breach of the specified timeframe justified awarding costs to the claimant).
2. Whether a claimant who has previously engaged in pre-action correspondence raising related complaints is required to send a further, separate pre-action protocol letter specifically complaining of the breach of a promised timeframe before issuing judicial review proceedings, and whether failure to do so can justify an order of no costs.
3. Whether the Upper Tribunal judges below erred in principle or exercised their discretion irrationally in making no order as to costs in each case.

Arguments of the Parties

Appellants' Arguments

• In the family case (Nisar), the Appellants contended that the Respondent had unequivocally committed in pre-action correspondence to make a decision by a fixed date "absent special circumstances," and that issuing proceedings when that date was missed (but before service of the late decision) amounted to justified and successful litigation for costs purposes.
• In the individual case (Mammedov), the Appellant argued that the Respondent had committed to a deadline and that the reminder email sent shortly before the deadline was sufficient pre-action communication; the judge below erred in law by requiring a further formal pre-action letter before issuing judicial review.
• Both appellants argued that the decisions below to make no order as to costs were irrational or wrong in principle given the facts in each case and the applicable legal principles on costs in public law litigation.

Respondent's Arguments

• The Respondent argued that in many instances its correspondence (particularly in the Mammedov case) expressed an intention or aim rather than a legally binding obligation to issue a decision by a given date, so no breach giving rise to costs liability occurred.
• The Respondent contended that claimants must comply with the Pre-Action Protocol: where a fresh or distinct complaint (such as delay) arises, claimants should normally send a compliant pre-action letter about that specific issue before issuing proceedings; failure to do so justified departure from the normal rule that costs follow the event.
• The Respondent relied on the discretion of the tribunal and the established principle that, on settlement, the court must consider causation between proceedings and the relief obtained and the parties' conduct in exercising discretion on costs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Precedent A ([1998] EMLR 161)	Standard for appellate interference with a judge's exercise of discretion on costs: interference only if judge erred in principle or misbalanced factors.	Used to state the high threshold for appellate intervention on costs and to frame review of the Upper Tribunal decisions.
Precedent B ([2020] EWCA Civ 114)	Authority approving the approach to appellate review of costs decisions.	Referenced as an example of approval for the Roache approach; supports deference to the lower tribunal unless error shown.
Precedent C ([2020] EWCA Civ 194)	Principle that causation is relevant; success in proceedings does not automatically mean proceedings caused the result.	Cited to emphasise the relevance of causation when deciding whether a claimant was the successful party for costs.
Precedent D (M v Croydon LBC) ([2012] EWCA Civ 595; [2012] 1 WLR 2607)	Authoritative guidance on costs in public law claims settled by consent: classification of outcomes (wholly successful; partially successful; compromise) and principles on when costs should follow the event.	Applied as the primary framework: the court classified the Nisar case as falling within the "wholly successful" category and the Mammedov case as not.
Precedent E (R (Tesfay) v SSHD) ([2016] EWCA Civ 415)	Observation that success in public law must be assessed in light of what was sought and achievable; settlement outcomes in public law can be less clear-cut than private law.	Used to support caution when assessing success after settlement, particularly in the Mammedov analysis.
Precedent F (Speciality Produce Ltd v Secretary of State) ([2014] EWCA Civ 225)	Emphasis on causation: claimant must show the litigation was causative of the relief obtained; if relief obtained by a different route, claimant may not recover costs.	Discussed and distinguished: the court rejected a strict or mechanistic causation test in all cases and explained why Nisar was different from Speciality Produce.
Precedent G (R (RL) v Croydon LBC) ([2018] EWCA Civ 726)	Examination of whether proceedings caused an earlier administrative outcome; courts must be satisfied that proceedings materially advanced the outcome before awarding costs.	Considered in comparing facts: M v Croydon principles applied to determine whether issue of proceedings accelerated the outcome in the two appealed cases.
Precedent H (ZN (Afghanistan) v SSHD) ([2018] EWCA Civ 1059)	Discussion of causal link and whether administrative failures outside litigation are "extrinsic" to the litigation for costs purposes.	Used to assess whether administrative failures by the Respondent were part of the litigation conduct or extrinsic and whether that should affect costs.
Precedent I (Dawod Khan v SSHD) (CA-2024-000219)	Example relied on below/above concerning whether previous pre-action correspondence sufficed to challenge delay.	Referred to by the parties; the court noted factual distinctions between that authority and the present appeals.
Precedent J (R (Ullah) v SSHD) ([2022] EWCA Civ 550)	Authority referenced on the reasonableness threshold for delay in immigration/entry clearance contexts.	Used in the Mammedov discussion to illustrate that the delay had not reached a manifestly unreasonable level in that case.

Court's Reasoning and Analysis

The court first set out the legal standard for appellate review of discretionary costs decisions (Precedent A and related authorities), emphasising that interference is justified only if the judge below erred in principle or misapplied the relevant factors.

Applying the M v Croydon framework, the court analysed each case separately.

Case A (family, "Nisar")

• The court reviewed the chronology and the Respondent's letter of 25 July 2023 which stated, unambiguously, that a reconsidered decision would be issued by 21 August 2023 "absent special circumstances." The court concluded that, while that statement did not amount to an enforceable undertaking in the sense of specific performance or committal, it nevertheless created a legal obligation to make and communicate the decision by that date.
• The court noted that the judicial review claim had been issued on 22 August 2023 and that the formal decision had been made on 22 August but was not communicated until 23–24 August 2023. It found it unreasonable to require the Appellants to chase for a one-day delay when the Respondent had given a clear deadline and had not communicated any inability to meet it prior to the date.
• The court rejected the lower tribunal's suggestion that the Appellants should have telephoned or otherwise enquired before issuing proceedings; given the unequivocal commitment in the Respondent's letter and the protracted history of exchanges, issuing proceedings when the deadline passed was reasonable and causatively linked to achieving the result (the Respondent's decision to serve reconsidered refusals and settle the claim).
• On that basis, the court concluded the Nisar litigation fell within category (i) of M v Croydon (claimant essentially wholly successful by reason of the Respondent conceding the relief sought), and that the judge below was wrong to make no order as to costs. The appeal in Nisar was allowed.

Case B (individual, "Mammedov")

• The court examined the wording of the Respondent's letter of 20 December 2024, which said the SSHD "aims to" issue a reconsidered decision by 20 March 2025, and the reminder email sent by the Appellant's solicitors on 16 March 2025.
• The court found that the December wording expressed an intention or operational aim rather than a clear legal obligation. The reminder email did not set out proposed grounds of challenge and therefore did not comply in form and substance with the Pre-Action Protocol in relation to a new complaint of delay.
• The court accepted the Upper Tribunal judge's view that, in those circumstances, it was reasonable to expect a further compliant pre-action letter specifically raising the delay before issuing judicial review, and that the failure to do so was a good reason to depart from the normal rule that costs follow the event.
• The court concluded there was no error in the exercise of discretion by the judge below in making no order as to costs in the Mammedov case and dismissed that appeal.

The panel therefore distinguished between a clear, unequivocal commitment to a deadline (which may create an obligation and, if breached without communication, justify costs) and correspondence expressing an operational aim or intention (which does not create the same legal obligation and where a failure to follow the Pre-Action Protocol may justify no costs).

Holding and Implications

Case A (family, "Nisar") — APPEAL ALLOWED.

Holding: The court concluded that the Respondent's unequivocal deadline in pre-action correspondence created a legal obligation to make and communicate a decision by that date "absent special circumstances," and that issuing judicial review proceedings after the deadline but before service of the late decision was reasonable. The judge below erred in making no order as to costs. The consequence is that the Appellants in the family case should have an appropriate costs order in their favour for the brief period up to the compromise of the claim.

Case B (individual, "Mammedov") — APPEAL DISMISSED.

Holding: The court concluded that the Respondent's correspondence in that case did not create a legally enforceable deadline, that the reminder sent by the Appellant's solicitors did not comply with the Pre-Action Protocol for a new complaint of delay, and that the Upper Tribunal was entitled to exercise its discretion to make no order as to costs. The consequence is that the no-order-as-to-costs outcome below remains.

Broader implications: The court emphasised that the outcome depends on the factual matrix and the precise wording of pre-action correspondence. It reiterated established principles: (a) appellate interference with costs discretion requires error of principle or irrationality; (b) M v Croydon provides the framework for assessing success after settlement; and (c) causation between proceedings and relief obtained is a central consideration. The decisions do not create new legal rules but illustrate application of existing principles to distinguish cases where an unequivocal pre-action deadline makes issue of proceedings reasonable from cases where correspondence is merely aspirational and further protocol compliance is required. The rulings therefore affect only the parties in these appeals and do not constitute a novel precedent beyond their factual application.

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Panel: Judge Bean; Judge King (concurring); Judge Warby (concurring).