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

Where a public authority concedes in judicial-review proceedings that its decision was unlawful and undertakes to correct it, the claimant may properly be treated as the substantive victor. A demand for the authority’s costs will ordinarily lack justification on those facts.

In exercising its procedural powers and the overriding objective, the Upper Tribunal may approve and revise a proposed consent order to secure a fair, swift and proportionate disposal. Parties should seek prompt agreement on consent orders, explain any failure to execute them, and should expect non-compliance with that guidance to be material on costs.

The applicant, an unrepresented Ugandan national, sought judicial review after the Secretary of State refused leave to remain without making an appealable removal decision. The claim began in the Administrative Court and was automatically transferred to the Upper Tribunal.

In a delayed Acknowledgment of Service, the Secretary of State accepted that her removal-decision policy applied and proposed reconsideration, but required the applicant to withdraw and pay her costs. The parties did not agree the draft consent order. At the permission hearing, the Secretary of State sought dismissal and increased costs. The central issues were the proper disposal of the claim and costs following the concession.

1. The Secretary of State’s application for dismissal was rejected. The Tribunal approved a revised consent order. The challenged decision was rescinded; a fresh decision was required within four weeks; and, if the Secretary of State maintained the decision, removal directions would be served so as to generate a right of appeal. There was no order as to costs between the parties.

2. The Secretary of State’s concession meant that the applicant’s decision to bring proceedings had been fully vindicated. The failure to make an appealable removal decision in accordance with the applicable policy was unlawful. The applicant was therefore, in substance, the successful party. A costs order against him was utterly without merit. Had he been represented, the Tribunal would have ordered the Secretary of State to pay his costs and would have considered indemnity costs.

3. Under Rules 17 and 39 of the Tribunal Procedure (Upper Tribunal) Rules 2008, and consistently with rule 2’s overriding objective, the Tribunal could amend and approve the proposed consent order. This was the fair, just and reasonable disposal. Without the revised order, permission for judicial review would have been granted with directions for an expedited final hearing.

4. The Tribunal also issued general guidance. A concession in an Acknowledgment of Service should not routinely be accompanied by a costs claim. Any exceptional justification should be stated briefly. Parties should actively seek agreement on a draft consent order within three weeks, give focused written explanations if it remains unexecuted, and communicate important material electronically. Compliance will be considered when costs are determined.

5. The Tribunal drew attention, without deciding the point, to Morrow v Chief Constable of Strathclyde Police [2011] NIQB 6, concerning the possible recovery by an unrepresented litigant of disbursements and some properly incurred earlier legal costs.

• Upper Tribunal (Immigration and Asylum Chamber): approved a revised consent order and made no order as to costs: [2014] UKUT 514 (IAC).
• Administrative Court: the applicant commenced judicial-review proceedings in September 2013. The proceedings were automatically transferred to the Upper Tribunal in November 2013.