IX, R (on the application of) v Secretary of State for the Home Department (Judicial review; costs)

Where judicial review proceedings end before trial, the ordinary rule that costs follow the event still applies. The court should use the categories in R (M) v Croydon LBC [2012] 1 WLR 2607 as flexible guidance, not as a code.

A claimant is not necessarily wholly successful merely because the defendant later takes action resembling the relief sought. The tribunal may consider all relevant information available, including the likely merits and whether the proceedings were causally necessary to vindicate a legal right. Its costs jurisdiction is the same after compromise as after trial, subject to a proportionate approach.

The applicant, an Egyptian national in the former MEDP cohort, brought judicial review of wording in a Home Secretary’s letter which said that, if circumstances changed, inadmissibility action might become appropriate. He contended that the wording was inconsistent with policy and with assurances concerning the cohort’s asylum claims.

After the applicant was granted asylum, he sought to amend the claim to pursue declaratory relief concerning other cohort members. On the day before the listed hearing, the Home Secretary published a statement confirming that inadmissibility action for the cohort had been discontinued. The applicant sought to withdraw and recover his costs; the Home Secretary sought her costs. The issue was whether the applicant had been wholly successful, or whether costs should instead reflect the merits and circumstances of the discontinued claim.

1. The applicant’s costs application was refused and the Home Secretary’s counter-application was granted. The claim fell within the third, compromise category described in R (M) v Croydon LBC [2012] 1 WLR 2607, not the category in which a claimant has been wholly successful.
2. The ordinary costs rule remains applicable when proceedings end before trial, but the outcome of a hypothetical trial is unavailable. The categories in M are broad guidance for identifying a suitable proxy for the event. They are not prescriptive. The tribunal must apply them in the circumstances of the particular case and proportionately.
3. A compromise does not require the tribunal to disregard relevant information. It may consider the available merits of the claim when deciding whether action taken by a defendant was a concession and whether a claimant was compelled to litigate to vindicate a legal right. The rationale identified in ZN (Afghanistan) v Secretary of State for the Home Department [2018] 3 Costs LO 357 therefore required examination of the causal connection between the proceedings and the asserted legal right.
4. That connection was absent. The impugned wording did not make, or evidence, a decision to reconsider inadmissibility. Read as a whole, the letter confirmed that the applicant’s asylum claim would be determined substantively in the United Kingdom. The proposed policy and legitimate-expectation grounds were very weak, and the proposed amendment would probably have been refused as disclosing no arguable case.
5. The Home Secretary had in substance given the requested assurance before proceedings began, and the applicant’s individual claim became academic when asylum was granted. The later public statement was not a concession caused by this claim. The usual restriction on enforcement applied because the applicant was publicly funded.

Upper Tribunal (Immigration and Asylum Chamber): Judicial review proceedings were issued on 22 October 2024. After the applicant was granted asylum and the Home Secretary made the 8 April 2025 statement, the Tribunal determined the parties’ competing costs applications. The applicant’s application was refused and the Home Secretary’s counter-application was granted.