DP (United States of America) v Secretary of State for the Home Department

When an immigration appeal is withdrawn after leave is granted outside the Immigration Rules on compassionate or exceptional grounds, costs are not determined solely by asking which party would have won the substantive appeal. The court may take a broad-brush approach, considering the conduct of both parties, the timing of the proposed settlement and costs caused by subsequent investigations. Where fault lies on both sides, no order as to costs may be appropriate. A grant of leave outside the Rules does not necessarily concede that the tribunal’s decision was wrong. If a respondent proposes withdrawal after the court is seized of the matter, the proposal and costs submissions should generally be made sufficiently early to permit disposal on paper.

The appellant, a United States national, appealed against refusal of further leave to remain as a Tier 1 (General) migrant. The First-tier Tribunal dismissed his appeal, and the Upper Tribunal found a material error of law but rejected the appeal. The proceedings concerned whether an overdraft facility amounted to possession of funds and whether fresh evidence about a company bank account could be admitted.

During the Court of Appeal proceedings, the Secretary of State accepted the company account evidence and granted the appellant a further three years’ leave to remain on an exceptional basis. The substantive application was withdrawn. The remaining issue was the appropriate order for costs, including the parties’ conduct and the timing of the Secretary of State’s decision.

1. Disposition. The application was withdrawn. The Court of Appeal ordered that there be no order as to costs.
2. Costs assessment. Longmore LJ held that the question could not be resolved simply by observing that the Secretary of State might have succeeded on the strict legal merits. The appellant’s bank document had the potential to mislead because it appeared to show personal funds although the account belonged to his company. There was therefore fault on his side. However, the Secretary of State’s proposal came late, and the investigations into the bank account had generated costs which would have been avoided had the matter been resolved earlier. Taking a broad-brush view, the appropriate order was no order as to costs throughout.
3. Underlying issues. The court noted that The Queen (Adeyemi-Doro) v Secretary of State for the Home Department [2011] EWCA Civ 849 made the overdraft argument difficult. The fresh-evidence issue was not finally determined because the application was withdrawn. Lewison LJ agreed that granting leave under a residual discretion outside the Immigration Rules should not itself penalise the Secretary of State or imply that the Upper Tribunal’s decision was wrong.
4. Case management. Arden LJ added that where the court is already seized of the matter, a proposal for withdrawal by consent and written costs submissions should generally be made sufficiently early, with the submissions available immediately unless the court directs otherwise. Here, the late proposal justified proceeding with an oral costs hearing.

1. Court of Appeal (Civil Division): On 22 February 2012, the application was withdrawn and the court ordered no order as to costs: [2012] EWCA Civ 365.
2. Upper Tribunal (Immigration and Asylum Chamber): SIJ Batiste found a material error of law but rejected the appeal concerning the availability of funds and Article 8. Permission to appeal was later refused as out of time.
3. First-tier Tribunal: IJ Pooler dismissed the appeal on 18 March 2010, finding that the evidence did not establish the required funds and that the refusal did not breach Article 8.