IO (Sri Lanka) v Secretary of State for the Home Department

The usual approach is that the Secretary of State should concede an appeal within 28 days after permission is granted. Where a compromise is offered later, the court will ordinarily require the Secretary of State to pay the costs caused by the delay.

That approach is discretionary. The court may make no order for costs where the circumstances justify doing broad justice between the parties, taking account of the reasons for delay, each party’s conduct, concessions and practical gains. A compromised immigration appeal may be allowed and remitted on agreed terms without determining the underlying merits.

This was an appeal from the Asylum & Immigration Tribunal, AIT No. IA/11585/2009. Permission to appeal had been granted on 28 February. The Secretary of State later offered to allow the appeal and remit the case, while the appellant sought the substitution of indefinite leave to remain.

By the hearing, the parties had reached an improved compromise. The Secretary of State agreed to give independent consideration to the merits of the appellant’s Article 8 case, and the tribunal hearing was to be postponed until after 4 October. The principal issue for the court was the appropriate disposal of the appeal and the costs of the late compromise.

1. Disposition. The appeal was allowed and remitted to the Upper Tribunal on the terms of the draft order to be submitted by counsel. The court did not determine the merits of the Article 8 claim or substitute an order for indefinite leave to remain.
2. Usual costs approach. The court ordinarily expects the Secretary of State to concede an appeal within 28 days after permission is granted. If a compromise is reached after that period, and particularly shortly before the hearing, the ordinary order is that the Secretary of State pays the costs.
3. Discretion to do broad justice. The ordinary approach is not rigid. In deciding costs, the court may weigh the reasons for the delay, the conduct and concessions of both parties, and the respective gains and losses arising from the compromise. Here, the Secretary of State had been delayed by difficulties obtaining the judgment and a note of the reasons. The appellant had made concessions but had obtained a limited improvement in the proposed outcome.
4. Costs order. Balancing those matters, the appropriate order was no order for the costs of the appeal from beginning to end. The appeal was therefore allowed and remitted, with no order for costs.

• Court of Appeal (Civil Division): The appeal was allowed and remitted to the Upper Tribunal, with no order for costs: [2011] EWCA Civ 865.
• Asylum & Immigration Tribunal: The appeal arose from proceedings recorded as AIT No. IA/11585/2009.