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ABB, R (On the Application Of) v Secretary of State for the Home Department
Factual and Procedural Background
The Appellant is an Afghan national who was living in The State prior to a military invasion. He states he was married to a national of The State and subsequently lost contact with his wife during the events surrounding the invasion. The Appellant submitted two visa applications in March and April 2022 under schemes established by the Defendant's Immigration Rules: Scheme A (a family scheme) and Scheme B (a sponsorship scheme). The Defendant refused both applications in July 2022 and again in April 2023, principally on the basis that the Appellant's relationship with his wife was not shown to be genuine and subsisting and that he did not meet the nationality/relationship requirements under Scheme B.
The Appellant challenged the refusals by judicial review and pursued multiple grounds including unlawful factual assessment of the relationship, unlawful application of the schemes, and alleged breaches of Articles 8 and 14 ECHR. A pre-action protocol (PAP) letter was sent. The Defendant did not comply with the PAP timetable, sought extensions and later asked further questions. Following exchanges and post-decision material, the Defendant conceded and agreed to grant leave outside the Immigration Rules and to issue a visa; the judicial review was withdrawn by consent and costs were reserved. On paper submissions the Upper Tribunal (UT) Judge Kebede ordered the Defendant to pay 75% of the Appellant's reasonable costs. The Appellant appealed that costs order.
Legal Issues Presented
- Whether the UT judge erred in law in reducing the Appellant's costs from full recovery to 75% given the Appellant's success and the Defendant's failure to comply with the PAP.
- Whether post-decision material relied on by the Defendant justified a departure from the general rule that the successful claimant recovers all costs.
- Whether the UT judge properly balanced the relevant factors (PAP compliance, degree of success, and conduct) when determining the appropriate costs order.
Arguments of the Parties
Appellant's Arguments
- The Appellant was wholly successful as he obtained the remedy sought (entry clearance for 36 months).
- The Appellant and his solicitors complied with the PAP; the Defendant did not comply and unreasonably delayed or failed to ask clarifying questions during the PAP, causing unnecessary litigation costs.
- Any post-decision material said to have led to the concession would, and should, have been obtained or requested during the PAP; therefore there was no good reason to reduce costs.
- Because the Appellant obtained the primary remedy by settlement/concession, he should recover full costs; reducing costs on the basis of unadjudicated grounds would be improper.
Defendant's Arguments
- The UT judge's 75% order was appropriate because the Defendant had some merit in asserting that post-decision information prompted the change of position.
- The concession did not amount to the Defendant accepting the original decision was unlawful; the grant was made outside the Rules and was based in part on material presented after the challenged decision.
- The Appellant did not obtain all relief sought and did not succeed on several grounds; much of the work related to unsuccessful grounds (including Articles 8 and 14 claims), so a reduction in recoverable costs was justified.
- Settlement can occur at any time; there was no prejudicial delay in settlement that should justify full costs to the Appellant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Bahta & Others) v SSHD and Others [2011] EWCA Civ 895 | Importance of compliance with the Pre-Action Protocol and the burden on a defendant to justify departure from the general rule that an unsuccessful defendant pays the successful claimant's costs. | The court relied on Bahta to emphasise that the Defendant bore a heavy burden to justify reducing costs where the claimant complied with the PAP and the defendant did not. |
| R (M) v Croydon LBC [2012] EWCA Civ 595 (M v Croydon) | Classification of settlement outcomes into three categories (wholly successful; partially successful; compromise not reflecting claimant's claims) and guidance on costs implications. | The court applied the Croydon categories and concluded the case fell within category (i) (wholly successful), supporting an award of full costs absent good reason. |
| R (Tesfay & Ors) v Secretary of State for the Home Department [2016] EWCA Civ 415 (Tesfay) | Success in public law litigation can include securing reconsideration; such success is usually treated as a success for costs purposes. | The court considered Tesfay's principles on what counts as success and noted that the Appellant here obtained more than reconsideration—he obtained the grant of leave—supporting full costs. |
| R (LR) v SSHD [2024] UKUT 00236 (IAC) | Authority referenced regarding the merits of Article 8/14 arguments in similar contexts (not binding on costs in this case). | The court recorded that a subsequent, unconnected decision rejected similar Article 8/14 arguments but found that decision irrelevant to the costs assessment in the present settled claim. |
| R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258 | Earlier approach (rejected/superseded) assessing whether claimant would have been bound to succeed at trial when claims were settled. | The court noted Boxall had been superseded by later authorities (notably Emezie) and did not apply the "bound to succeed" test. |
| R (Emezie) v SSHD [2013] EWCA Civ 733 | Confirms the correct starting point is whether the claimant achieved what he sought, not whether he would have been bound to succeed at trial. | The court applied Emezie to hold that the Appellant's achievement of the primary remedy (entry clearance) was decisive for costs. |
| Re Appeals by Governing Body of JFS [2009] UKSC 1 | Referenced for the practical point that legal aid rates differ from inter partes recoverable rates. | The court cited the case to underscore the practical importance of full costs orders for access to justice and legal aid practice viability. |
| RL v London Borough of Croydon [2018] EWCA Civ 726 | Referenced regarding cost recovery and practical importance to legal aid firms. | The court relied on such authorities to emphasise the significance of awarding full inter partes costs where merited. |
| ZN (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 1059 | Referenced for commentary on recovery at inter partes rates versus legal aid rates. | Used to support the court's observation on the financial impact of partial costs awards on legal aid practice. |
Court's Reasoning and Analysis
The appellate court began from the principle that costs decisions attract appellate deference but must be rationally exercised. Applying the authorities, the court analysed (a) whether the case fell within Croydon's category (i) of a wholly successful claimant; (b) the Defendant's conduct regarding the PAP; and (c) whether there were good reasons or special circumstances to depart from full costs.
The court concluded the matter plainly fell within category (i): the Appellant achieved the outcome he sought (entry clearance for 36 months). The fact the grant was expressed as being outside the Immigration Rules, or that the Defendant did not concede unlawfulness, did not alter that result.
The court found the Defendant had failed to comply with the PAP: no interim reply was given, no adequate reasons were provided for extensions, and clarification questions that later elicited material were not put during the PAP stage. The court held that, if those clarification questions were necessary to "understand and properly identify the issues", the Defendant ought to have used the PAP to obtain them to avoid litigation and expense.
The Defendant had to justify any departure from full costs and, because of its PAP non-compliance, bore a heavy burden. The court concluded the Defendant did not discharge that burden. Arguments that the concession relied on post-decision material or that the Appellant did not succeed on all pleaded grounds were insufficient to justify reducing costs: many grounds were auxiliary, and it would be unprincipled to undertake a merits post-mortem on unadjudicated grounds when settlement produced the primary relief sought.
Accordingly, the UT judge's reduction to 75% was overturned for lack of sufficient justification.
Holding and Implications
HOLDING: The appeal is allowed. The Appellant is awarded the whole of his costs of the judicial review claim, to be assessed if not agreed.
Implications: The direct effect is that the Defendant must pay the Appellant's recoverable costs in full. The court emphasised that where a claimant who complied with the PAP obtains the relief sought by settlement or concession, a defendant who failed to comply with the PAP faces a heavy burden to justify any reduction in costs. The judgment also reiterated the practical importance of full costs awards for legal aid practitioners and access to justice. The decision does not purport to create a new legal test but applies established authorities to the facts of this case.
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