JH (Palestinian Territories) v Upper Tribunal of the Immigration And Asylum Chamber & Anor

In a Cart judicial review, the judicial-review claim and the substantive appeal to the Upper Tribunal are distinct proceedings governed by different costs regimes. Unless statute or rules authorise it, the Administrative Court cannot make a stand-alone order treating judicial-review costs as costs of the Upper Tribunal appeal. Where available, the safer course is to transfer the judicial-review costs application to the Upper Tribunal. Costs should ordinarily await the outcome of the underlying appeal because permission establishes arguability, not ultimate success. Immediate costs orders may be justified by unreasonable conduct or misleading the tribunal. Legal-aid status does not alter the ordinary costs principles.

The appellant’s asylum claim was refused, although the First-tier Tribunal allowed his humanitarian-protection claim. Permission to appeal was granted on limited grounds. The Upper Tribunal later refused permission to rely on amended and extended grounds.

The Administrative Court initially refused permission for judicial review. On appeal, the refusal of permission to amend the grounds was quashed under the CPR 54.7A procedure, but the order was silent on costs. Moulder J ordered detailed assessment of the appellant’s legally aided costs but made no order against the Secretary of State. The appeal concerned the jurisdiction to make a contingent costs order and, if that was unavailable, the proper treatment of the judicial-review costs after the underlying immigration proceedings were withdrawn.

1. Appeal and cross-appeal. The Court of Appeal, in the lead judgment of Macur LJ agreed by Bean LJ and Haddon-Cave LJ, allowed the appeal and dismissed the cross-appeal. It substituted an order that the Secretary of State pay the appellant’s costs of the CPR 54.7A proceedings.
2. Separate jurisdictions. The judicial-review proceedings and the substantive appeal to the Upper Tribunal are distinct proceedings. The former are governed by the costs discretion under section 51 of the Senior Courts Act 1981 and the Civil Procedure Rules 1998. The latter are governed by section 29 of the Tribunals, Courts and Enforcement Act 2007 and the Tribunal Procedure (Upper Tribunal) Rules 2008. Absent express statutory or procedural authority, the Administrative Court cannot make a stand-alone order effective in the separate Upper Tribunal jurisdiction that the judicial-review costs be treated as costs of the appeal.
3. The expression “of and incidental to” does not overcome that jurisdictional divide. The reasoning of Burnett LJ in Darroch v FA Premier League Ltd (2017) 4 WLR 6, identified as obiter, was respectfully adopted. The earlier decision in Faqiri [2019] EWCA Civ 151 had to be read as concerning proceedings within the same jurisdiction.
4. Transfer. The jurisdictional difficulty can ordinarily be avoided by transferring the judicial-review proceedings, or the costs application, to the Upper Tribunal under section 31A of the Senior Courts Act 1981 and section 19 of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal can then assess the judicial-review costs separately under the civil costs regime and the appeal costs under its own rules.
5. Timing. Success in the underlying appeal should ordinarily be a prerequisite to an award of costs. Permission to bring a Cart judicial review shows that the proposed appeal is arguable and satisfies the second-appeals threshold; it does not establish that the substantive appeal will succeed. The successful party will usually be identifiable only when the proceedings end by order or compromise. An immediate order may be appropriate where the Secretary of State unreasonably seeks or prosecutes a full judicial-review hearing, or has misled the Upper Tribunal.
6. Public funding considerations do not justify treating legally aided litigants differently from other litigants. In the present case, the appellant was in substance the successful party. His appeal was withdrawn only after the Secretary of State withdrew her challenge to the humanitarian-protection finding, and the Secretary of State could have accepted the First-tier Tribunal’s decision earlier.

• Court of Appeal (Civil Division): allowed the appeal, dismissed the cross-appeal and ordered the Secretary of State to pay the appellant’s costs of the judicial-review proceedings.
• Administrative Court: HHJ Pearce quashed the refusal of permission to amend the grounds on 20 April 2018, with no order as to costs. Moulder J later ordered detailed assessment of the legally aided costs but made no further costs order.
• First-tier Tribunal and Upper Tribunal: the First-tier Tribunal allowed the humanitarian-protection claim but rejected the asylum claim; the Upper Tribunal refused permission to rely on amended and extended grounds.