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

A claimant who obtains the relief sought in compromised judicial review proceedings is ordinarily entitled to costs, but the circumstances may justify a different order. Failure to comply with the pre-action protocol may justify making no order as to costs. A pre-action letter challenging a refusal does not satisfy the protocol for a subsequent claim challenging delay after that refusal has been withdrawn. A chasing email must identify the legal dispute and allow the appropriate response period, ordinarily 14 days unless urgency justifies shortening it. An undertaking to aim to reconsider an application within three months does not itself impose a legal obligation to decide within that period. Missing that target does not alone establish unlawful delay.

Mr Khan, a Pakistani national seeking to visit the United Kingdom, applied to the Secretary of State for the Home Department for entry clearance. Following refusal, he sent a pre-action letter challenging the decision. The Secretary of State withdrew the refusal and stated that the Entry Clearance team aimed to reconsider the application within three months, absent special circumstances.

Mr Khan’s representatives sent a chasing email six days before that period expired, threatening proceedings if no decision was made by the target date. He commenced judicial review proceedings the following day after the period expired. The Secretary of State subsequently made a fresh decision, and the proceedings were withdrawn with costs reserved. Upper Tribunal Judge Hoffmann made no order as to costs on 9 July 2025.

Mr Khan appealed. The issues were whether a further pre-action letter was required, whether the chasing email satisfied the protocol, and whether the appeal could be distinguished from the Mammedov appeal determined in R(Nisar and others) v Secretary of State for the Home Department; R(Mammedov) v Secretary of State for the Home Department [2025] EWCA Civ 1646; [2026] 4 WLR 2.

1. The appeal was dismissed unanimously. The Upper Tribunal judge was entitled to make no order as to costs. Dingemans LJ gave the substantive judgment, with which King and Edis LJJ agreed (paras 18, 21–23).

2. Appellate interference with a costs order required an error of principle, omission of relevant matters, consideration of irrelevant matters, or a plainly wrong decision. In compromised judicial review proceedings, the ordinary principle was that a party obtaining all the relief sought was entitled to costs. Each case nevertheless depended on its circumstances, and an unusual feature could justify departing from the otherwise appropriate order. The principles in R(M) v Croydon London Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 2607 therefore did not require a costs award merely because a fresh decision had been obtained (paras 12–15, 18).

3. The original pre-action letter challenged the refusal of entry clearance. Once that decision had been withdrawn, it was a matter of history. The subsequent claim challenged delay in reconsideration and required compliance with the pre-action protocol for that different dispute. The earlier letter did not satisfy that requirement (para 15).

4. The chasing email did not satisfy the protocol. Its description as a pre-action letter in internal Home Office communications did not determine compliance. It failed to explain the legal basis for alleging that a decision after the target date would be unlawful. Knowledge that a decision was required differed from identification of the legal issues in dispute. The email also allowed less than 14 days for a response, and no urgency justified shortening that period (para 16).

5. There was no material distinction from the Mammedov appeal in R(Nisar). Stating an aim to decide within three months did not create a legal obligation to meet that target. The delay had not become so excessive as to be manifestly unreasonable. Additional internal correspondence about workload, staffing and the missed target did not establish unlawfulness or remove the need for a proper pre-action letter (paras 14–17).

6. The Secretary of State’s failures, including failure to acknowledge the chasing email or request further time, justified withholding her costs below. As guidance, parties should show greater willingness to agree costs when settling judicial review proceedings. Doing so could save the costs of submissions and judicial time (paras 19–20).

• Court of Appeal (Civil Division): In [2026] EWCA Civ 997 , unanimously dismissed the appeal and upheld the Upper Tribunal’s decision to make no order as to costs.
• Upper Tribunal (Immigration and Asylum Chamber): Following withdrawal of the judicial review proceedings after a fresh entry clearance decision, Upper Tribunal Judge Hoffmann made no order as to costs by a written ruling dated 9 July 2025. No citation for that ruling was stated.