Bibi Sajeedah Khan Soreefan & Ors, R (on the application of) v The Secretary of State for the Home Department

An Upper Tribunal costs order made in immigration judicial review proceedings may be appealed to the Court of Appeal on a point of law, subject to permission. Costs decisions are highly discretionary. Permission will therefore rarely be justified where the decision accords with established principles and has a tenable factual basis.

Where permission is not dealt with at a hearing, an application must be made within one calendar month, calculated from the day after the substantive decision was sent to the corresponding date in the following month. Time may be extended under the overriding objective. A written application need not use a prescribed form, but it must comply with rule 44(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Serious non-compliance may lead to strike-out.

Three applicants sought permission to appeal to the Court of Appeal against separate Upper Tribunal costs orders made after immigration judicial review proceedings had been resolved. In Soreefan, the respondent had been ordered to pay 20% of the applicant’s costs. In Anyamene and Nwanko, there had been no order as to costs.

Each applicant’s solicitors sent a short letter seeking permission. The letters did not identify any alleged error of law. The first two also failed to respond to a later direction requiring compliance with rule 44(7), causing an adjourned hearing. The Tribunal considered the appealability of costs orders, the applicable time limit, extension of time, form and content of permission applications, fees, and whether the defective applications should be struck out.

1. The applications were struck out. No valid application for permission to appeal had been made. The applicants had committed egregious and continuing non-compliance with rule 44(7)(b), by failing to identify any alleged error of law. Where applicable, they had also failed to make a compliant request for an extension of time under rule 44(6).

2. Under section 13 of the Tribunals, Courts and Enforcement Act 2007, a costs decision of the Upper Tribunal in immigration judicial review proceedings is a decision capable of appeal to the Court of Appeal, with permission. The statutory exclusion of certain decisions did not include such costs orders. The permission criterion is whether the proposed appeal raises an important point of principle or practice, or whether another compelling reason exists.

3. On costs, the Tribunal would apply M v London Borough of Croydon [2012] EWCA Civ 595. Costs depend substantially on the particular litigation matrix and judicial discretion. An appellate challenge will ordinarily be unassailable where the costs decision conforms to established principle and has a tenable basis. The applications would in any event have been refused on their merits.

4. For a permission application not determined at a hearing, rule 44(4) imposed a period of one calendar month. Applying the corresponding-date principle in Dodds v Walker [1981] 2 ALL ER 609, time runs from the day after the substantive decision was sent and ends on the corresponding date in the next month. The Tribunal may extend time under rule 5(3)(a), applying established principles and the overriding objective; a late application must request an extension and explain the delay.

5. A permission application must be written, but no prescribed form applies in judicial review proceedings. A letter may suffice if it identifies the decision, the alleged legal errors and the result sought. Rule 44(7) is mandatory, although breach is an irregularity capable of remedy or waiver under rule 7. The nature and gravity of the default, and the strike-out principles in R (SN) v Secretary of State for the Home Department (striking out – principles) [2015] UKUT 227 (IAC), govern whether to strike out under rule 8.

6. The £45 fee applied to a without-notice permission application in judicial review proceedings. The respondent’s wasted-costs application in Soreefan was refused, narrowly, despite the solicitors’ unreasonable defaults.

• Upper Tribunal (Immigration and Asylum Chamber): applications for permission to appeal to the Court of Appeal against separate costs orders in immigration judicial review proceedings were struck out under rules 7(2)(c) and 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
• Earlier Upper Tribunal costs orders: Soreefan received 20% of her costs; Anyamene and Nwanko each received no order as to costs. No citation for those orders is stated in the judgment.