Tesfay, R (on the application of) v Secretary of State for the Home Department

Where a public authority withdraws an immigration decision and agrees to reconsider it, costs do not follow automatically. The court must assess the relief realistically obtainable and the likely outcome had the claim proceeded. Material fresh evidence ordinarily supports withdrawal and reconsideration, but the decision-maker should not generally be penalised in costs for taking that course. Where success was improbable, the appropriate order may be to allow the claimant the costs of preparing and lodging the claim, followed by no order for costs. The assessment must also account for any legal error relied upon and the extent of the relief sought.

Three judicial review claims challenged decisions certifying and directing the removal of asylum seekers to Italy under Dublin II. The claims alleged a real risk of treatment contrary to Article 3 of the European Convention on Human Rights. While the claims were stayed, the legal position developed through decisions including EM and the Secretary of State withdrew the decisions to reconsider the up-to-date position.

The court determined the consequential costs issue. The central questions were whether withdrawal gave the claimants practical success and whether, had the claims proceeded, they were likely to establish unlawfulness.

1. The claims were not treated as wholly successful merely because the decisions under challenge had been withdrawn. The principal relief realistically available would have been quashing for reconsideration. Further mandatory relief or a declaration would not have been granted.

2. In a judicial review costs application following withdrawal, the court must consider whether the challenged decision was unlawful and whether the claimant would probably have succeeded had the claim proceeded. The court must also take account of the actual relief sought and obtained. The approach is consistent with M v Croydon and R (A) v Chief Constable of Kent.

3. Where fresh material may affect the decision, the better course is ordinarily for the decision-maker to withdraw the original decision and reconsider it. A claimant may make a fresh claim, but permission may be required. The defendant should not generally be penalised in costs merely because it has adopted that course.

4. The claims were reasonably brought to prevent removal, given the uncertainty and concerns then existing about conditions in Italy. Nevertheless, success was considered improbable. The claimants were therefore awarded the costs of preparing and lodging the claims, including appropriate counsel’s drafting fees. Thereafter there was no order for costs, including in respect of the costs hearing. Leave to appeal was refused.

5. Collins J also expressed views on the substantive Dublin II and Article 3 issues. The presumption that European Union member states comply with Convention obligations may be rebutted by substantial grounds establishing a real risk. A systemic failure was not generally required where special personal circumstances created an individual risk, but the observations were made in the context of the costs decision.

The claims were stayed pending appellate decisions concerning removal to Italy under Dublin II, including [2013] EWCA Civ 921 and the Supreme Court decision in EM. The Secretary of State subsequently withdrew the decisions and reconsidered them. This court determined the consequential costs applications.