SM (Afghanistan) v The Secretary of State for the Home Department

In settled judicial review proceedings, costs depend on the substance of the settlement, not merely on the form of the consent order. The court should distinguish between a claimant who is wholly successful, one who succeeds only in part, and a compromise that does not reflect the claim. The appropriate order remains fact-sensitive. In public-law litigation, success may be difficult to identify because the court is not the primary decision-maker. The court may consider what was sought, the basis on which it was advanced and opposed, and what was realistically achievable. Proportionate further submissions may clarify the settlement’s basis. On an appeal from a discretionary costs order, the appellate court must not substitute its own view unless there is an error of principle, a material failure in the exercise of discretion, or a conclusion that is wholly wrong.

The appellant, an Afghan national who arrived in the United Kingdom as an unaccompanied minor, had made asylum, humanitarian protection and human-rights claims. After delays and periods of leave, he brought judicial review proceedings seeking indefinite leave to remain, alternatively corrective leave, or a decision on his renewed asylum claim. The proceedings were stayed pending TN (Afghanistan). They were later withdrawn by consent after the Secretary of State granted indefinite leave to remain on the stated basis of the case’s exceptional circumstances. The consent order left costs to be decided. The Administrative Court, HHJ Oliver-Jones QC, ordered no order as to costs on the basis that the grant reflected six years of discretionary leave. The appeal concerned whether that order was wrongly categorised under the settled-judicial-review costs principles or was an impermissible exercise of discretion.

Appeal dismissed. The appeal concerned only the costs order made after the judicial review proceedings were withdrawn by consent.

1. Applicable framework. The categories identified in M v Croydon LBC ([2012] 1 WLR 2607) distinguish between wholly successful claims, claims succeeding only in part, and compromises that do not reflect the claims. In public-law litigation, success must also be assessed by reference to what was sought, the basis on which it was sought and opposed, and what was realistically achievable. The court is not the primary decision-maker, so the practical significance of a settlement may differ from the pleaded relief.
2. Further submissions. Settlement terms may leave the basis of success unclear. Proportionate further submissions may therefore assist the costs court in identifying the applicable category. They do not authorise extensive or indefinite argument. Here, the appellant had a sufficient opportunity to respond to the Secretary of State’s explanation of the basis on which indefinite leave to remain had been granted.
3. Application. The material before the court showed that indefinite leave to remain had been granted on the basis that the appellant had accrued six years of continuing discretionary leave. The question whether this made him wholly or partly successful, or instead amounted to a compromise unconnected with the pleaded judicial review relief, was primarily for HHJ Oliver-Jones QC.
4. Appellate restraint. The guidance in HE v Secretary of State for the Home Department ([2013] EWCA Civ 1846) required the Court of Appeal to avoid substituting its own view merely because it might have exercised the discretion differently. The judge had correctly directed himself by reference to M v Croydon LBC. His order was neither based on an error of principle nor perverse. The order of no order as to costs was therefore upheld. Lord Justice Singh agreed.

• Court of Appeal (Civil Division): On 24 January 2018, the appeal was dismissed and the costs order below upheld: [2018] EWCA Civ 32.
• High Court of Justice, Queen’s Bench Division, Administrative Court: On 19 July 2014, HHJ Oliver-Jones QC ordered no order as to costs after the judicial review proceedings were withdrawn by consent.
• Permission to appeal: Permission was refused on the papers by Floyd LJ on 7 March 2015 and later granted by Rupert Jackson LJ on oral renewal in January 2016.