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

In judicial review proceedings concerning removal to Italy under Dublin II, a claim may be dismissed where the claimant has failed to comply with case-management directions and the court is satisfied that the claim would inevitably fail. A recent decision on materially similar claims, whose reasoning remained undisturbed after refusal of permission to appeal, may provide the basis for that conclusion. Costs remain fact-sensitive. Where a claimant has not obtained comparable reconsideration or partial success, the ordinary rule that costs follow the event may apply.

The claimant challenged the proposed return of an asylum claimant to Italy under Dublin II. The proceedings had been stayed with other cases pending the judgment in Tabrizagh, in which Elisabeth Laing J held that claims based on the material then available were bound to fail and could lawfully be certified. Permission to appeal in Tabrizagh was later refused.

The claimant amended his grounds but failed to comply with directions requiring further evidence, a trial bundle and a skeleton argument. The court considered whether the claim should proceed and, separately, whether costs should follow the event in light of Tesfay and the Supreme Court decision in EM (Eritrea).

1. Disposition. The judicial review claim was dismissed. The claimant’s absence did not prevent the hearing because notification had been served, his solicitors had withdrawn after failing to receive instructions, and he had been declared an absconder after failing to comply with reporting conditions.
2. Failure to comply with directions. The claimant had failed to provide further evidence, a trial bundle and a skeleton argument as required by the court’s directions. The interests of justice required finality, and the claim should not be allowed to continue.
3. Merits. Independently, the claim was bound to fail in light of Tabrizagh. The material considered in that case supported certification of claims concerning return to Italy under Dublin II. The Court of Appeal had refused permission to appeal, so no basis was shown for reopening the issue.
4. Costs. The court distinguished Tesfay [2014] EWHC 4048 (Admin), where the claimants had achieved partial success through reconsideration and were awarded the costs of lodging their claims, followed by no order for costs. Costs decisions are highly fact-sensitive. This claimant brought his challenge after EM (Eritrea), had obtained no reconsideration, and had failed in the claim. The ordinary rule therefore applied: costs followed the event.
5. The Secretary of State was awarded costs, summarily assessed at £3,030 inclusive of VAT.

Not stated in the judgment.