Kaya, R (On the Application Of) v Immigration Appeal Tribunal

Where judicial review proceedings are resolved by concession after permission but before a substantive hearing, the court retains discretion to determine costs. The usual order is no order as to costs unless there is good reason to depart from it. Relevant considerations include whether the claimant was very likely to succeed on the papers as they stood when permission was determined, the conduct and circumstances of the parties, and the need to avoid discouraging early concessions. A comparatively cursory but informed review is appropriate; the court should not rehear the substantive challenge. Impecuniosity, including the claimant’s lack of resources and related Article 6 considerations, does not by itself constitute an exceptional circumstance or justify a costs order.

The claimant challenged the Immigration Appeal Tribunal’s dismissal of his application for leave to appeal against a Special Adjudicator’s refusal of his asylum and human-rights claims. Permission for judicial review was initially refused on the papers but was granted on renewal. The Secretary of State subsequently conceded that the Tribunal’s decision should be quashed and the matter remitted. The remaining dispute concerned whether the Secretary of State should pay the claimant’s costs of and incidental to the permission hearing. The central issue was the proper exercise of the court’s discretion where proceedings had been resolved without a substantive hearing.

The claim was effectively resolved by the Secretary of State’s concession, and the Tribunal’s decision was formally quashed. The court ordered no order as to costs and refused permission to appeal.

1. The Deputy Judge applied the principles stated by Scott Baker J in Boxall. The court has power to make a costs order where substantive proceedings end without trial and the parties cannot agree costs. Legal aid is ordinarily irrelevant. The overriding objective is to do justice without unnecessary court time and additional cost. The court must avoid discouraging early concessions.
2. The court should not conduct a substantive rehearing when deciding costs. It should make a comparatively cursory but informed assessment of whether, at the permission stage, the claimant was clearly very likely to succeed. The earlier refusal of permission by Maurice Kay J indicated that this threshold was not met.
3. A later Immigration Appeal Tribunal decision, referred to as A, might have clarified the law and made success more likely, but it was decided after the relevant permission stage. It therefore did not assist the costs discretion. The Secretary of State’s possible reasons for conceding were also immaterial.
4. The claimant’s asserted exceptional circumstances did not justify departure from the usual order. The strength of the claim was no more than arguable; oral argument, the Secretary of State’s resources, the claimant’s lack of resources and Article 6 considerations were insufficient. Impecuniosity did not, provisionally, appear to be a factor capable of distorting the normal costs order.
5. The order was therefore no order as to costs. The court also directed a detailed Legal Aid assessment, refused leave to appeal, and quashed the Tribunal’s decision, which was understood to be remitted automatically.

The judgment does not state a prior appellate decision in the same proceedings. It records that Maurice Kay J refused permission on the papers, and Elias J granted permission on renewal. The Secretary of State then conceded that the Immigration Appeal Tribunal’s decision should be quashed.