FM (Afghanistan) & Ors, R (On the Application of) v Secretary of State for the Home Department

In judicial review costs disputes, a claimant who obtains the relief sought starts from the position that costs should be awarded, unless there is a good reason to depart from that result. The court must first classify the case correctly. The categories identified in M v London Borough of Croydon do not replace that starting point. A change of position following a settlement, or the emergence of further evidence, may justify withholding costs in an appropriate case, but does not itself determine the category into which the claim falls. Permission to appeal a costs order requires an arguable error of principle, failure to take a relevant matter into account, consideration of an irrelevant matter, or a Wednesbury unreasonable conclusion.

Three renewed applications concerned costs orders made after successful judicial review proceedings involving immigration decisions. In each case, the Secretary of State changed position and the claim was resolved without a contested final hearing, but the deputy judges refused to order the Secretary of State to pay the applicants’ costs.

The decisions were made on written submissions, and permission to appeal was initially refused on the papers. The renewed applications raised whether the cases had been placed in the correct costs category, whether the judges had adopted the correct starting point, and whether they had relied on irrelevant or factually mistaken considerations.

Permission granted. Lord Justice Beatson held that the renewed applications disclosed a real prospect that the costs decisions involved errors of principle or material errors in the exercise of discretion. The applications did not determine the merits of the costs appeals. The appeals were directed to be heard together by a constitution of three, including a judge with immigration law experience.

1. Permission test. Permission to appeal in a costs case requires an arguable error in principle, failure to take account of a relevant feature, consideration of an irrelevant feature, or a Wednesbury unreasonable decision. The applicants met that threshold under Civil Procedure Rules 1998, Part 52.
2. Costs starting point. Following R (on the application of Bahta) v SSHD [2011] EWCA Civ 895 and M v London Borough of Croydon [2012] EWCA Civ 595, the general civil litigation rule applies in the Administrative Court. A claimant who obtains the relief sought is ordinarily entitled to costs unless there is good reason to order otherwise. The earlier default position in R (Boxall) v Waltham Forest London Borough Council (2000) 4 CCLR 258 had been replaced.
3. Classification of settled claims. A compromise which does not reflect the claimant’s claim may fall within the third category identified in M v London Borough of Croydon. However, a defendant’s change of position following late or additional evidence may be a reason to withhold costs in an appropriate case; it does not itself determine the correct category or displace the ordinary starting point.
4. In FM’s case, the correspondence arguably showed that the Secretary of State had proceeded on an erroneous policy basis rather than genuinely disputing the evidence of destitution. In SN’s case, the consent order secured a fresh decision carrying an in-country right of appeal. In AM’s case, the later medical report arguably confirmed concerns already raised by earlier material. These matters made the costs decisions sufficiently arguable to require appeals.

1. Court of Appeal (Civil Division): Permission to appeal was initially refused on the papers. On renewal, Lord Justice Beatson granted permission and directed that the appeals be heard together.
2. Queen’s Bench Division: Deputy judges refused to order the Secretary of State to pay costs after the applicants obtained relief in judicial review proceedings.