R v Secretary of State for the Home Department

Where a binding appellate decision determines the governing Convention issue, an appellant cannot obtain costs for pursuing arguments that merely repackage the same submission or seek to reopen that decision. A distinct argument must be legally separate and properly arguable. An alleged flagrant breach of the right to private life, when advanced as a route to degrading treatment, is not a discrete Article 8 argument if it is in substance an Article 3 submission. The court also indicated that a later successful appeal in a related case might require affected cases to be reconsidered, depending on the terms of the decision and the facts of each case.

The appellant appealed from the Immigration Appeal Tribunal. The substantive appeal had been treated as governed by the Court of Appeal’s decision in Ullah, while permission to appeal that decision to the House of Lords had been granted but the appeal had not yet been lodged.

After judgment, the court considered the consequences for the appellant pending the possible appeal in Ullah, including removal to Zimbabwe and the possibility of a later challenge. It then addressed the appellant’s costs, including arguments based on a flagrant breach, a distinction within Article 8, the continued relevance of Ullah, alleged error in Ullah, and reliance on Smith v Brady.

1. Disposition and costs. The court treated Ullah as determinative of the appellant’s substantive arguments. The appellant was awarded costs only up to 16 January, one week after the respondent’s skeleton argument, with the solicitor’s costs allowed despite the court’s misgivings.
2. Characterisation of the arguments. The proposed flagrant-breach argument was not a separate Article 8 argument. It was, in substance, a further Article 3 argument. The court regarded it as legally incapable of advancing a distinct case beyond the effect of Ullah.
3. Effect of the pending appeal in Ullah. The court indicated that, if the House of Lords appeal in Ullah succeeded in terms capable of benefiting this appellant, cases of this kind might require reconsideration. That would depend on the terms of the decision and the facts of the individual case. A fresh challenge would then be required.
4. Removal and future challenge. The respondent would in any event have to give notice of removal. Removal before the House of Lords decision, while the issue remained pending, was described as potentially vulnerable to a separate challenge in the Administrative Court as inappropriate and irrational.
5. Future costs. The court warned that anyone seeking to reopen Ullah, or refusing to recognise its effect, should not expect to recover costs and might be ordered to pay the respondent’s costs.

• Court of Appeal (Civil Division): Appeal from the Immigration Appeal Tribunal. The Court of Appeal treated its decision as governed by Ullah and limited the appellant’s recoverable costs to 16 January.
• House of Lords: Permission to appeal in Ullah had been granted, but the petition had not yet been presented. No citation for that decision is stated in the judgment.