Nwankwo & Anor v Secretary of State for the Home Department

For an application for permission to appeal from a decision of the Upper Tribunal in judicial review proceedings, the Tribunal is exercising original jurisdiction. The second-appeal restriction in section 13(6) of the Tribunals, Courts and Enforcement Act 2007 therefore does not apply. The first-appeal test in Part 52 of the Civil Procedure Rules applies instead, both in the Upper Tribunal and in the Court of Appeal. Costs decisions may be difficult to challenge because they involve discretion, but that does not justify an elevated permission threshold. In settled judicial review claims, success depends on the remedies sought and obtained and remains fact-sensitive. Both applications were refused because neither had a real prospect of success or another compelling reason for an appeal.

These joined applications concerned permission to appeal from two Upper Tribunal costs decisions in immigration judicial review proceedings. The substantive claims had been resolved by consent orders requiring reconsideration of the applicants’ immigration decisions.

• In Nwankwo, the Upper Tribunal made no order as to costs although the Secretary of State agreed to reconsider the decision.
• In Anyamene, the Upper Tribunal likewise made no order as to costs after reconsideration was agreed, although wider remedies had been sought.

The Upper Tribunal had issued guidance stating that the second-appeal test applied to applications for permission to appeal to the Court of Appeal. The central issue was whether that guidance was correct and whether either costs decision had a real prospect of being successfully appealed.

Disposition. Lord Justice Singh gave the judgment, with Lord Justice Peter Jackson agreeing. Both applications for permission to appeal were refused. The Court also made no order as to costs in the Court of Appeal.

1. The right to appeal from the Upper Tribunal arises under section 13(1) of the Tribunals, Courts and Enforcement Act 2007, and a costs decision is not an excluded decision under section 13(8). The second-appeal restriction in section 13(6), through section 13(7), applies only to an application concerning a decision made by the Upper Tribunal on an appeal from the First-tier Tribunal under section 11. It does not apply where the Upper Tribunal exercises its original judicial review jurisdiction under sections 15 to 21. The decision in R (TH (Iran)) v East Sussex County Court [2013] EWCA Civ 1027 was consistent with that route of appeal.
2. The applicable test was the first-appeal test in old rule 52.3(6) of the Civil Procedure Rules: a real prospect of success or some other compelling reason. The same test must be applied when permission is first considered by the Upper Tribunal and when the application is made to the Court of Appeal. The discretionary nature of costs decisions may make an appeal difficult in practice, but does not justify an elevated or robust test.
3. The approach to costs after settlement in judicial review proceedings remained governed by the categories identified in R (M) v Croydon LBC [2012] EWCA Civ 595; [2012] 1 WLR 2607. A wholly successful claimant will ordinarily recover costs absent good reason, while partial success commonly leads to no order, subject to the facts.
4. Nwankwo fell within the wholly successful category because reconsideration was obtained, but the proceedings had been commenced prematurely after the Secretary of State’s concession and without awaiting further correspondence. The costs discretion was therefore reasonably exercised and there was no real prospect of success.
5. Anyamene was properly treated as a partial-success case. Although reconsideration may amount to complete success where it is the only remedy sought, the applicant had also sought mandatory orders granting leave to remain and other relief. The Court also held that the applicant had not supplied the relevant factual material, including the medical evidence, needed to demonstrate error in the discretionary costs decision. The principles discussed in R (Tesfay & Others) v Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4863 did not establish that this applicant was wholly successful.
6. Although the Respondent had been directed to make submissions and attend the hearing, the Court declined to award her costs. The Respondent’s proposed elevated permission threshold had been rejected, and the full hearing had been required because of the Upper Tribunal’s error on the point of principle.

• Court of Appeal (Civil Division): On 12 January 2018, the Court held that the first-appeal test applied to appeals from the Upper Tribunal exercising original judicial review jurisdiction, but refused both applications for permission to appeal. It made no order as to costs.
• Upper Tribunal (Immigration and Asylum Chamber): On 13 October 2015, McCloskey J and UT Judge Lindsley refused permission to appeal and issued guidance stating that the second-appeal test applied.
• Underlying costs decisions: UT Judge Rintoul made no order as to costs in Nwankwo on 15 June 2015. UT Judge Hanson made no order as to costs in Anyamene on 17 April 2015. In Anyamene, permission for judicial review had previously been refused by Silber J in the High Court before being granted on an oral hearing in the Upper Tribunal.