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

In a compromised public-law appeal, costs remain a matter of judicial discretion. The court should assess the relief obtained against the claim advanced. An appellant who secures all relief sought on appeal is ordinarily entitled to the appeal costs, even though the underlying merits remain unresolved. Costs of an uncompleted judicial review may be left for the tribunal that will decide the substantive issues. Where a claim has been fully compromised and there is no court or tribunal to which costs can be reserved, reserving costs is inappropriate. The court must not treat unresolved allegations as disproved. Depending on the alternative basis for the decision and the terms of compromise, the proper order may be no order as to costs.

Three conjoined appeals concerned challenges arising from alleged proxy cheating in TOEIC tests. Two involved removal decisions under section 10 of the Immigration and Asylum Act 1999; permission for judicial review had been refused because an out-of-country appeal was treated as an adequate alternative remedy. The third involved certification under section 94(1) of the Nationality, Immigration and Asylum Act 2002 of a human-rights claim as clearly unfounded.

Following Ahsan and Others v The Secretary of State for the Home Department [2017] EWCA Civ 2009, the substantive appeals were compromised by consent, with relief granted and the merits left undecided. The outstanding issue was the appropriate costs order in each appeal.

The Court of Appeal determined the costs consequences of three conjoined appeals which had been allowed by consent. The substantive merits, including the allegations of TOEIC deception, remained undecided.

1. Under CPR rule 44.2, the court has a discretion concerning liability, amount, timing and form of costs orders. The general rule that the unsuccessful party pays costs remains subject to all the circumstances, including conduct and the extent of success. The principles in R (M) v Croydon London Borough Council [2012] EWCA Civ 595 and BCT Software Solutions Limited v C Brewer & Sons Limited [2003] EWCA Civ 939 apply, with appropriate modification, to appeals.

2. Mr Rahman and Mr Al Amin had obtained all the relief sought from their appeals: allowance of the appeals, permission for judicial review and remittal of the substantive claims. In light of Ahsan and Others v The Secretary of State for the Home Department [2017] EWCA Civ 2009, they were wholly successful on the appeals and were entitled to their appeal costs irrespective of the eventual findings on deception. The Secretary of State was ordered to pay those costs on the standard basis, subject to detailed assessment.

3. Mr Rahman’s judicial-review costs could not be determined because the substantive issues remained for the Upper Tribunal. They were to await the outcome of that claim. In Mr Al Amin’s case, the earlier costs order was quashed, although the tribunal could make an appropriate order later.

4. Mr Ali’s claim concerned the lawfulness of certification under section 94(1) of the Nationality, Immigration and Asylum Act 2002, rather than the ultimate merits of the human-rights claim. Reserving costs was inappropriate because the substantive claim had been compromised and there was no court or tribunal to which the costs could be reserved. The court could not treat the unresolved allegations concerning the TOEIC test or marriage as disproved. Given the Upper Tribunal judge’s alternative conclusion that the claim would fail apart from those allegations, and the pragmatic basis of the compromise, there was to be no order as to costs. The earlier procedural costs order was quashed.

1. Upper Tribunal (Immigration and Asylum Chamber) Upper Tribunal Judges Frances, Freeman and McWilliam refused permission for judicial review or permission to appeal in the respective cases. Two cases concerned removal decisions under section 10 of the Immigration and Asylum Act 1999; the third concerned certification under section 94(1) of the Nationality, Immigration and Asylum Act 2002. No neutral citations for those decisions were stated.

2. Court of Appeal (Civil Division) The appeals were stayed pending Kiarie and Byndloss [2017] UKSC 42 and then Ahsan and Others v The Secretary of State for the Home Department [2017] EWCA Civ 2009. Following Ahsan, the substantive appeals were allowed by consent and the outstanding costs issues were determined in this judgment.