AL (Albania) v Secretary of State for the Home Department

In judicial review proceedings challenging delay in determining an asylum claim, costs after compromise depend principally on whether the claimant succeeded or would have obtained the relief sought. A decision is not unlawful merely because it was made later than desired or was accelerated after proceedings began. The Secretary of State may take reasonable time to obtain and assess evidence, including overseas inquiries and information connected with a related claim. Rule 333A of the Immigration Rules requires information about delay or expected timing in specified circumstances, but does not impose a fixed decision deadline. Judicial review requires irrationality in the delay, not merely administrative imperfection.

The appellant claimed asylum in December 2014, relying in part on an alleged blood feud affecting his family. After extended inquiries, he commenced judicial review proceedings in December 2015, challenging delay and seeking a decision within 28 days. The Secretary of State later refused the asylum claim, and the proceedings were withdrawn by consent subject to costs.

Upper Tribunal Judge Jacobs ordered the appellant to pay the Secretary of State’s costs of the summary grounds of defence, assessed at £1,760. The appeal concerned whether that costs order disclosed an error of law, particularly whether the appellant had achieved the relief sought and whether the delay was unlawful.

The appeal was dismissed. Lady Justice Arden gave the leading judgment, and Lord Justice Holroyde agreed.

1. Costs after compromise. Applying the approach in M v Croydon [2012] 1 WLR 2607, the relevant question was whether the appellant had succeeded, or would have obtained the relief sought if the judicial review claim had proceeded. He therefore had to show that the Secretary of State’s proposed six-month timetable was unlawful and that the proceedings were justified.
2. Delay in asylum decisions. Rule 333A of the Immigration Rules requires a decision as soon as possible without prejudice to an adequate and complete examination. Its six-month provision requires information about delay or the expected timeframe in specified circumstances. It does not require a decision within that timeframe or create an inflexible deadline.
3. Application of the standard. The claim was complex and required overseas inquiries into credibility and related matters concerning the appellant’s brother. The Secretary of State was entitled to take reasonable time to complete those inquiries. Provisional decisions remained subject to internal review and further information, and the appellant was not entitled to be informed of every step taken before a final decision. There was no evidence that the delay resulted from irrational action or inaction.
4. The fact that proceedings may have accelerated the decision did not establish success. Any acceleration was minor and likely de minimis. Public funding provided no principled basis for departing from ordinary costs principles. It was also reasonable to allow the Secretary of State to file summary grounds out of time while settlement discussions were continuing.

The costs order disclosed no error of law. The further question of what order should have been made if the appeal succeeded did not arise.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the costs order. [2018] EWCA Civ 1183.
• Upper Tribunal (Immigration and Asylum Chamber): after the judicial review claim was withdrawn by consent subject to costs, ordered the appellant in July 2016 to pay the Secretary of State’s costs of the summary grounds of defence in the sum of £1,760.
• Judicial review proceedings: commenced in December 2015 to challenge delay in determining the asylum claim. The asylum refusal was notified in April 2016, after which the claim was withdrawn by consent subject to costs.