ABB, R (on the application of) v Secretary of State for the Home Department

In judicial review costs disputes resolved by consent, the court should first identify whether the claimant obtained the substance of the remedy sought. A claimant who secured the requested outcome is ordinarily wholly successful and should recover costs in full, unless the defendant shows a good or substantial reason for departure. The burden is especially heavy where the claimant complied with the pre-action protocol and the defendant did not. Post-decision evidence does not, without more, justify reducing costs if the defendant could have sought clarification during the protocol period. Where subsidiary grounds were not adjudicated, the court should not ordinarily conduct a post-mortem assessment of their merits to reduce costs.

ABB, an Afghan national formerly resident in Ukraine, applied under the Ukraine Family Scheme and the Homes for Ukraine Sponsorship Scheme for entry clearance to the United Kingdom. The Secretary of State refused the applications, principally finding that ABB’s relationship with his Ukrainian wife was not subsisting.

ABB brought judicial review proceedings. After further questions and evidence, the Secretary of State accepted that the relationship was subsisting, recognised ambiguity in the applicable Homes for Ukraine rules, and granted ABB entry clearance for 36 months outside the Immigration Rules. The claim was withdrawn by consent, with costs reserved.

The Upper Tribunal ordered the Secretary of State to pay 75% of ABB’s reasonable costs. The central issue on appeal was whether ABB was wholly successful and whether there was a sufficient reason to depart from the usual order that the successful claimant recover costs in full.

1. Appeal allowed. ABB obtained the substance of the remedy sought: entry clearance for 36 months. The fact that the grant was made outside the Immigration Rules, and that the decision under challenge was not formally withdrawn or conceded unlawful, did not alter that conclusion. ABB was therefore wholly successful.
2. Under [2012] EWCA Civ 595, a wholly successful claimant ordinarily recovers all costs unless there is a good reason or special circumstance to the contrary. Under [2011] EWCA Civ 895, the Secretary of State bore the burden of justifying departure from that rule, and the burden was heavy because ABB had complied with the pre-action protocol while the Secretary of State had not.
3. The post-decision evidence did not provide a good reason to reduce costs. The Secretary of State could have asked the relevant clarification questions during the protocol process. The protocol specifically contemplated an interim response, reasons for an extension, and requests for further information. Its aims included identifying the issues, facilitating settlement, and avoiding unnecessary expense.
4. The ambiguity in the Homes for Ukraine rules was known before proceedings began and had already led to amendment of the rules. It therefore did not justify a reduction.
5. The unadjudicated Article 8 and Article 14 grounds were subsidiary matters supporting ABB’s primary claim. Their inclusion did not justify setting off the costs of pursuing them. It would be unprincipled to conduct a post-mortem assessment of their merits after settlement. The later decision in R (LR) v SSHD, [2024] UKUT 00236 (IAC), had no bearing on the costs issue.
6. The appellant was awarded the whole of his judicial review costs, to be assessed if not agreed. Nugee LJ and Yip LJ agreed. Nugee LJ additionally emphasised the practical importance of full costs recovery for legally aided practices and access to justice, subject to Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 30(1).

• Court of Appeal (Civil Division) — [2026] EWCA Civ 61. Appeal allowed. The Upper Tribunal’s order for 75% of the appellant’s reasonable costs was set aside, and ABB was awarded all his judicial review costs.
• Upper Tribunal (Immigration and Asylum Chamber) — Following settlement and withdrawal of the judicial review claim, UTJ Kebede ordered the Secretary of State to pay 75% of ABB’s reasonable costs, to be assessed if not agreed.