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

In a settled judicial review, a claimant may achieve material partial success even though the challenged decision has not been quashed. The court must identify the practical result secured by the proceedings. Where an appellate court sets aside a costs decision for error of law and remakes it, it may consider a later tribunal decision on the substantive merits. That is so where the later decision resulted from adjudication rather than compromise. Costs remain fact-sensitive, but a claimant who secured the procedural opportunity necessary to challenge the underlying decision, and later succeeded on the merits, may recover the costs of the proceedings which made that outcome possible.

The appellant challenged removal directions based on an alleged fraudulent English-language test. His judicial review claim argued, among other matters, that removal without an effective opportunity to challenge the deception finding at an in-country hearing was unlawful. Permission was initially refused because an out-of-country appeal was treated as an alternative remedy.

After Ahsan [2017] EWCA Civ 2009, the Court of Appeal recognised that an out-of-country appeal would not be effective where oral evidence was necessary and realistic video-link facilities were unavailable. The appellant’s appeal was then allowed by consent, with permission granted and the matter remitted to the Upper Tribunal. Before the substantive hearing, the judicial review was settled on terms providing for a fresh appealable decision and an in-country right of appeal, with costs left to the Upper Tribunal.

The Upper Tribunal made no order as to costs. The central issues were whether that decision contained an error of law and whether the later First-tier Tribunal decision, which accepted the appellant’s evidence and allowed his appeal, could be considered.

1. Appeal allowed. The Upper Tribunal made an error of law by overlooking that the appellant had achieved at least partial success. The judicial review secured, in practical terms, an opportunity to challenge the deception finding and give evidence at an in-country hearing. Following Ahsan [2017] EWCA Civ 2009, that procedural opportunity was material. It was wrong to treat the settlement as a compromise which did not reflect the claim merely because the challenged removal decision had not been quashed or withdrawn.
2. Costs decisions are discretionary and appellate intervention is limited. An appellate court may interfere where the judge erred in principle, omitted a material consideration, considered an irrelevant matter, or reached a decision that was wholly wrong because the relevant factors had not been fairly balanced. The guidance in M v Croydon London Borough Council [2012] EWCA Civ 595 applied in the Upper Tribunal, but remained fact-sensitive.
3. In a settled judicial review, the court must consider the practical result, the pleaded case, the conduct of the parties and, where appropriate, whether it is tolerably clear who would have won had the matter proceeded. The default of no order as to costs is not automatic where the claimant has achieved significant partial success.
4. Where an appellate court sets aside a costs decision for error of law and must remake it, it may consider a later adjudicated determination of the substantive claim. Excluding that outcome would be artificial. The First-tier Tribunal’s finding that the appellant had not cheated justified treating him as the winner in substance as well as on the procedural issue. A partial reduction was unnecessary because subsidiary grounds had added little, if anything, to the costs.
5. The result was consistent with the alternative procedural course considered in R (Rahman) v Secretary of State for the Home Department [2018] EWCA 1572. The respondent was ordered to pay the appellant’s reasonable costs of the judicial review and the appeal, subject to detailed assessment, together with an interim payment of £12,500.

• Court of Appeal (Civil Division) [2021] EWCA Civ 138: appeal allowed. The Upper Tribunal’s costs decision was set aside and the respondent was ordered to pay the appellant’s reasonable costs of the judicial review and the appeal.
• Court of Appeal (Civil Division): on 3 December 2018, by consent, the appeal against refusal of permission was allowed, permission for judicial review was granted and the matter was remitted to the Upper Tribunal. The respondent was ordered to pay the costs of that appeal.
• Upper Tribunal (Immigration and Asylum Chamber): following a consent order, the judicial review claim was dismissed and the issue of costs was reserved for determination on paper. The Upper Tribunal subsequently ordered no order as to costs.
• First-tier Tribunal: on 21 January 2020, the appellant’s appeal against removal was allowed after his evidence was accepted. The judgment does not give a citation.