Sengoz v Secretary of State for the Home Department

Where an appeal is discontinued or does not proceed to a substantive hearing after permission has been granted, the usual fallback is no order as to costs, unless there is good reason for a different order. A respondent should consider promptly whether the appeal will be opposed, but the question remains fact-sensitive. Delay will not necessarily justify a costs order where the legal issue required proper analysis and the respondent genuinely considered fairness and hardship. The court should also avoid discouraging early concessions or settlements.

The appellant appealed from the Immigration Appeal Tribunal. Permission to appeal had initially been refused by the Tribunal but was later granted on the papers by a single Lord Justice. The substantive appeal did not proceed, and the issue before the Court of Appeal was whether the Secretary of State should pay the appellant’s costs because of delay in deciding whether to oppose the appeal.

The parties relied on observations in Vauxhall v London Borough of Waltham Forest. The central question was whether the circumstances justified departing from the usual costs outcome.

1. The court accepted that the observations of Scott Baker J in Vauxhall v London Borough of Waltham Forest were relevant and applicable. In the absence of a good reason for another order, the fallback position was no order as to costs.
2. The Secretary of State should consider critically and as soon as possible whether an appeal will be opposed after permission has been granted. Prompt consideration is important because delay may increase wasted costs and the appellant’s anxiety.
3. The assessment remained fact-sensitive. The issue here concerned the legal question whether the Tribunal had power or a duty to hear oral evidence. It did not require detailed examination of the underlying merits. Until the grounds had been fully considered and advice obtained, the Secretary of State might not have been able to decide his best course.
4. The Secretary of State’s conduct had not caused the necessity for a costs order. His decision appeared to take account of fairness and hardship to the appellant, rather than simply reflecting a view that the appeal could not be defended.
5. The court therefore made no order as to costs, subject to assessment of the appellant’s costs under the legal aid provisions.

• Court of Appeal (Civil Division): appeal from the Immigration Appeal Tribunal; the court determined the costs issue and ordered no order as to costs, subject to public funding assessment.