Mostafa Shahi v Secretary of State for the Home Department

A claimant who obtains interim relief in judicial review proceedings is not thereby necessarily the successful party for costs purposes. Interim relief granted because a claim is arguable and the balance of convenience favours preserving the position does not determine the lawfulness of the challenged conduct.

Where a consent order merely discharges interim relief and permits withdrawal, without a concession or determination on the substantive issue, the court may consider whether it can identify who would have succeeded at a final hearing. If it cannot fairly do so, an order for no costs may be appropriate. Benefits or accommodation supplied by unjoined third parties do not establish success against the defendant.

The appellant had been recognised as a refugee and his asylum support was due to end 28 days after the decision. He sought judicial review of the Secretary of State’s refusal to continue support and accommodation, contending that the statutory scheme created an unlawful gap before he could obtain Universal Credit and local-authority housing.

Johnson J granted without-notice interim relief requiring continuing support pending the permission application. The appellant subsequently received Universal Credit and accommodation. By consent, he withdrew the judicial review claim and the interim order was discharged, with costs reserved. HHJ Worster made no order for costs. The appeal concerned whether the grant of interim relief made the appellant the successful party for costs purposes.

1. Appeal dismissed. The appellant was not shown to be the successful party for the purposes of the general costs rule. The order of HHJ Worster making no order for costs was upheld.

2. The essential issue in both the judicial review claim and the application for interim relief was whether the Secretary of State had acted unlawfully in ending asylum support. A claim for interim relief could not be detached from that issue merely because the immediate practical objective was short-term support.

3. Johnson J decided only that the underlying claim was sufficiently arguable for interim relief and that the balance of convenience favoured maintaining the status quo. He expressly did not decide either the merits or whether permission for judicial review should be granted. Applying the ratio of R (Naureen) v Salford City Council [2012] EWCA (Civ) 1795, interim relief in a public-law case is not, without more, a reason to award the claimant the costs of the action.

4. The consent order did not concede or decide unlawfulness, nor did it settle the substantive claim by acknowledging an entitlement to all or substantially all the relief sought. The guidance in M v Croydon London Borough Council [2012] EWCA (Civ) 595 was not a comprehensive code, but it did not bar an inquiry into whether the court could identify the party who would have succeeded at a final hearing.

5. It was both open and correct for the Judge to conclude that this could not be determined. The claim raised difficult questions concerning the apparent 28-day statutory limit, the high threshold for an article 3 breach based on state support, the absence of a general article 8 right to benefits or housing, and the availability of work, an advance of Universal Credit and possible housing assistance. The merits had neither been tried nor conceded.

6. Support and accommodation obtained from unjoined third parties did not establish success in the claim against the Secretary of State. The Court also held that the costs order in Jabarkhil v Secretary of State for the Home Department was wrong in principle.

Dingemans LJ would initially have treated the appellant as successful in practical terms, but agreed that the appeal should be dismissed. He accepted that, where only interim relief is obtained and costs are left to the court, a claimant in such bridging-support litigation will not ordinarily obtain costs without a further determination.

• Court of Appeal (Civil Division). Appeal dismissed in [2021] EWCA Civ 1676 . The Court upheld the order that there be no order for costs.
• High Court. HHJ Worster, sitting as a Judge of the High Court in proceedings CO/639/2020, made no order for costs after the judicial review claim was withdrawn by consent and the interim order discharged.