AA (Pakistan), R (On the Application Of) v Secretary of State for the Home Department

A party’s entitlement to an oral reconsideration may be displaced by a consent order using clear and explicit language. Where costs are to be decided on the papers unless a hearing is necessary, and the court decides that no hearing is necessary, the paper determination is final. Even if jurisdiction to reconsider exists, costs remain discretionary in an academic appeal. A pragmatic fresh decision does not necessarily amount to complete success where the claim sought wider relief and involved no concession on the merits. A robust order for the costs of a strike-out application may be justified where a party persists with a substantive hearing after the appeal has become academic.

The applicant challenged the refusal of leave to remain, relying on private-life and protection-related grounds. Permission for judicial review was refused in the Upper Tribunal, but the Court of Appeal later granted permission to appeal. A fresh decision carrying an in-country right of appeal made the proceedings academic. The appeal was withdrawn by consent, with costs to be determined on the papers unless a hearing was necessary. Hickinbottom LJ made no order as to costs, save for an order requiring payment of 75% of the costs of the strike-out application, and refused an oral hearing. The applicant sought reconsideration. The central issues were whether the consent order excluded oral renewal and, alternatively, whether the costs decision was outside the available discretion.

1. Jurisdiction. The renewed application was rejected. Although the rules then in force provided for renewal at an oral hearing, that entitlement was subject to an express agreement to the contrary. Paragraph 3 of the consent order required costs to be determined on the papers unless the Court of Appeal ordered that a hearing was necessary. The court declined to order a hearing, and Hickinbottom LJ then determined costs on the papers. The parties had therefore precluded oral renewal, and the paper determination was final.
2. The agreement had to use clear and explicit language to displace the procedural entitlement. Paragraph 3 satisfied that requirement. The reasoning was consistent with Gilbert Ash, Bahta and RS (Sri Lanka). The observations relied on from Faya d, particularly at paragraph 33, arose in a different context and did not assist the applicant.
3. Alternative merits. Even if jurisdiction existed, the costs order was within the discretion available. The Secretary of State’s fresh decision was pragmatic and did not concede that the judicial review grounds were well founded. The applicant had sought wider relief than merely obtaining an appealable decision, so she could not be regarded as having achieved complete success. The case fell within the second category identified in M v Croydon LBC [2012] EWCA Civ 595. The reliance on Tesfay, at paragraph 67, did not alter that conclusion.
4. Strike-out costs and Taylor v Lawrence. The order requiring payment of 75% of the strike-out costs was justified. The applicant had persisted with a substantive appeal after it had become academic, and the application sought to end that unnecessary hearing rather than undermine the grant of permission. It was also inappropriate to invoke Taylor v Lawrence, both because effect had to be given to the express agreement and because the costs outcome was not unjust. The application was rejected on both jurisdictional and alternative merits grounds.

• Court of Appeal (Civil Division): on 1 May 2018, rejected the applicant’s renewed application concerning the costs order. [2018] EWCA Civ 1259.
• Upper Tribunal (IAC): permission for judicial review was refused on the papers and again on oral renewal on 26 November 2015.
• Court of Appeal: permission to appeal was granted by Arden LJ on 25 August 2016. A fresh decision then made the proceedings academic. The appeal was withdrawn by consent, and costs were determined on the papers by Hickinbottom LJ.