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

In settled judicial review proceedings, a claimant who obtains the decision sought will ordinarily be the successful party, unless there is a good reason to depart from that position. Costs discretion is broad but must be exercised rationally and on accepted principles. A strict causation test is not required in every case. The court should ask whether the proceedings, or an operative pre-action commitment, materially secured or accelerated the relief obtained. A clear commitment to make and communicate a decision by a specified date may create a legal obligation. By contrast, an indication that the authority merely aims to decide by a date creates no legal obligation, and failure to send a further pre-action letter may justify making no order as to costs.

The conjoined appeals arose from settled judicial review claims concerning delays in deciding applications for UK visitor entry clearance. In both cases the Secretary of State withdrew or agreed to reconsider earlier refusals and indicated a date by which a fresh decision would be made.

In Nisar, the Secretary of State stated unequivocally that a decision would be made by 21 August 2023, absent special circumstances. A refusal was made on 22 August but was not served until judicial review proceedings had been issued. The Upper Tribunal made no order as to costs.

In Mammedov, the Secretary of State said that it aimed to decide by 20 March 2025, absent special circumstances. The claimant issued proceedings after receiving no decision and before a refusal was served. The Upper Tribunal again made no order as to costs. The central issue was whether those costs decisions were irrational or wrong in principle.

1. Nisar appeal allowed. The costs discretion is wide, but an appellate court may intervene where it has been exercised irrationally or on a wrong principle. The principles in Roache v News Group Newspapers Ltd [1998] EMLR 161 and R (M) v Croydon LBC [2012] EWCA Civ 595 require the court to identify the successful party and any good reason for departing from the ordinary position that costs follow success.
2. The Secretary of State’s letter in Nisar did not create an enforceable undertaking in the specific-performance or contempt sense, but it was sufficiently clear to amount to a legal obligation to make and communicate a decision by 21 August 2023. The refusal made on 22 August was not effective until communicated.
3. The statement in Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225 that a claim must be causative of the relief does not impose a strict causation test in every costs case. The court must assess whether the claim or its threat materially secured or accelerated the relief. The prolonged correspondence, the unequivocal deadline and the threat of judicial review made it reasonable to issue proceedings after the deadline. The claim therefore fell within category (i) in R (M) v Croydon LBC [2012] EWCA Civ 595: the claimant obtained all the relief sought and should recover costs for the brief period before compromise.
4. Mammedov appeal dismissed. The Secretary of State’s letter said only that officials would aim to decide by 20 March 2025. It created no legal obligation, and the delay was not yet manifestly unreasonable, applying the approach in R (Ullah) v Secretary of State for the Home Department [2022] EWCA Civ 550. The Upper Tribunal was entitled to find that the claimant should first have raised the new issue of delay in a compliant pre-action letter. The failure to do so was a good reason for making no order as to costs.
5. Lady Justice King and Lord Justice Warby agreed with Lord Justice Bean.

• Court of Appeal (Civil Division): Nisar appeal allowed; Mammedov appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): UTJ Sheridan made no order as to costs in Nisar; UTJ Hirst made no order as to costs in Mammedov.
• Permission to appeal: granted by Asplin LJ in Nisar and Elisabeth Laing LJ in Mammedov.