AAA & Ors., R (on the application of) v The Secretary of State for the Home Department

On consequential matters following a judicial review judgment, costs ordinarily follow success, but the court must assess partial success and the issues actually pursued. A substantial reduction may be appropriate where a claimant succeeds on individual decisions but fails on extensive generic challenges. Permission to appeal may be granted where proposed grounds have no realistic prospect of success but raise issues of sufficient importance to justify appellate consideration. Permission may be refused where a ground misreads the judgment, is inadequately formulated, concerns matters not pleaded, or raises no compelling circumstances. A court may invite a properly redrafted ground where the existing formulation risks confusion.

The judgment concerned consequential matters arising from the Divisional Court’s judgment of 19 December 2022 in judicial reviews challenging arrangements under which asylum claims might be determined in Rwanda rather than the United Kingdom.

The court determined the terms of orders, costs, and applications for permission to appeal in claims brought by individual claimants, organisations and Asylum Aid. The central questions were the appropriate costs consequences of mixed success and whether proposed appeal grounds had a realistic prospect of success or compelling circumstances warranting permission.

1. Orders and disposition. The court settled orders giving effect to the December judgment while preserving the opportunity to appeal. Claims were dismissed in whole or in part according to the grounds identified for each claimant. Individual decisions successfully challenged remained quashed.
2. Costs. Under CPR 44.2, the general rule is that the unsuccessful party pays the successful party’s costs, subject to all the circumstances, including partial success. The individual claimants were successful insofar as they challenged decisions concerning inadmissibility and, where applicable, human rights claims and certificates. Their substantial failure on generic challenges and aspects of procedural unfairness justified significant reductions: 40% of costs in AAA and HTN, 25% in RM, and 75% in AS. Organisations refused permission were ordered to pay only the additional costs attributable to standing. Claimants who failed on the issues heard, including AB, SAA and Asylum Aid, were ordered to pay the Defendant’s costs, subject to the stated £30,000 cap for Asylum Aid.
3. Permission to appeal. Permission was granted where issues concerning the lawfulness of the Rwanda arrangements, the application of the Othman assurances test, the Refugee Convention penalty issue, retained EU law, certification powers and procedural fairness raised compelling circumstances suitable for consideration by the Court of Appeal.
4. Permission was refused where grounds misread the judgment, were inadequately formulated, concerned issues not pleaded or not part of the claimant’s case, or disclosed no realistic prospect of success and no compelling circumstances.
5. Asylum Aid’s proposed procedural-fairness ground was refused in its existing form because it could be misconstrued. The court indicated that a more precise ground concerning whether procedural fairness itself required information or representations on matters in paragraph 345B(ii)–(iv) of the Immigration Rules could be submitted for consideration on the papers.

High Court (King’s Bench Division), Divisional Court — The court’s 19 December 2022 judgment determined the substantive judicial review challenges. This judgment determined consequential orders, costs and permission to appeal. Permission was granted on specified grounds and refused on others.