AL (Albania) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 710

Case No C5/2011/0550; C5/2011/0832; C5/2011/1518

[2012] EWCA Civ 710

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

AA/02412/2010

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/05/2012

Before

LORD JUSTICE MAURICE KAY, Vice President of the Court of Appeal, Civil Division

LORD JUSTICE RICHARDS

LORD JUSTICE KITCHIN

Between

AL (ALBANIA) and orsAppellants

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr Tim Buley (instructed by Messrs Duncan Lewis & Co) for Appellants AL (Albania) and FN (Gambia)

Mr Tim Buley (instructed by Hafiz and Haque Solicitors for DH (Bangladesh)

Mr Jonathan Hall (instructed by Treasury Solicitors) for Respondent

Hearing Hearing date : 18 April 2012

Judgment

Lord Justice Maurice Kay :

[1]For some years appeals in asylum and immigration cases have accounted for a substantial amount of the workload of this Court. They emanate either as appeals from the Administrative Court arising out of applications for judicial review or as statutory appeals from the specialist tribunals. [Since the coming into force of section 13 of the Tribunals, Courts and Enforcement Act 2007 (TCEA) such statutory appeals come from the Upper Tribunal (Asylum and Immigration Chamber).] In the present case, we are concerned with statutory appeals. The right of appeal is exercisable only with the permission of the UT or of this Court. Although the Secretary of State is occasionally the appellant, in the great majority of cases she is the respondent. It often happens that an appeal for which permission has been granted (usually by this Court) is disposed of by consent. Sometimes such a disposal takes the form of the appeal being allowed on the basis of a remittal of the case to the UT. On other occasions it is on the basis that the Secretary of State agrees to grant the appellant some status which satisfies his immediate aspiration. We are not concerned with a further kind of disposal whereby the appellant effectively abandons the appeal.

[2]The issue with which we are concerned is the order for costs where the appeal is disposed of by consent in circumstances in which the appellant has obtained a benefit – either a remittal or some status – from the appellate process. In the paradigm case, the appellant seeks an order for costs in his favour but the Secretary of State contends that there should be no order for costs. At one time disputes about costs at this stage were relatively unusual but they have now become common. In the cognate area of the settlement of judicial review applications in the Administrative Court, the general approach was the subject of general guidance in Reg (Boxall) v Waltham Forest LBC (2001) 4 CCL Rep 258 and its application in asylum and immigration cases was the subject of further guidance in Bahta v Secretary of State for the Home Department

[2011] EWCA Civ 895

. Very recently, the position arising in judicial review was revisited in M v London Borough of Croydon

[2012] EWCA Civ 595

. However, the context of a statutory appeal is somewhat different. It is not preceded by a Pre-Action Protocol and the respondent is not necessarily an active participant prior to the grant of permission in the way that she is in the Administrative Court where she is obliged to acknowledge service and plead the basis of her resistance (if any) to the application.

[3]The three cases now before us have provided an opportunity for us to formulate general guidance in relation to costs in settled statutory appeals. Before proceeding further, it is appropriate to refer to the pattern of such cases in this Court. In the most recent 12 month period, approximately 60% of appeals from the UT settled after the grant, almost always by this Court, of permission to appeal. In almost 40% of those settled appeals, the issue of costs was left to be determined by the Court. Dozens of cases falling into this category are presently awaiting determination following the handing down of this judgment. There has been a clear upward trend in relation to settlements in which the parties have been unable to agree costs.

[4]The basic rules in relation to costs in statutory appeals are the same as those in other appeals, notwithstanding the fact that, when an appellant appeals from the UT, he is emerging from a jurisdiction which operates on a no-costs basis. The principal provision is CPR 44.3, the relevant provisions of which are as follows:

“(1) The court has discretion as to – (a)whether costs are payable by one party to another; (b)the amount of those costs; and (c)when they are to be paid. (2) If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order … (4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; (5) The conduct of the parties includes – (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.”

There are no Practice Direction provisions expressly referable to costs in statutory appeals and there is no pre-action protocol. (a)whether costs are payable by one party to another; (b)the amount of those costs; and (c)when they are to be paid. (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.”

The position in judicial review

[5]The general guidance on costs in settled judicial review cases was first formulated by Scott Baker J in Boxall (at paragraph 22):

“(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs; (ii) it will ordinarily be irrelevant that the claimant is legally aided; (iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost; (iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend upon the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties; (v) in the absence of a good reason to make any order the fall back is to make no order as to costs; (vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.”

The context of Boxall was the assessment of accommodation and community care needs.

[6]Bahta was concerned specifically with cases in which claimants in immigration cases had sought judicial review of decisions made on behalf of the Secretary of State but the applications were resolved by consent, subject to the issue of costs. Judges in the Administrative Court had decided to make no order as to costs, but appeals to this court by the claimants on the costs issue were successful. Pill LJ (with whom Sullivan LJ and Hedley J agreed) set out the Boxall principles and (at paragraph 66) declined to tack words onto them. It seems to me that, having considered CPR 44.3 and Boxall, the ratio of Bahta is contained in paragraph 65 of the judgment of Pill LJ:

“Where relief is granted [ie by the Secretary of State pursuant to the terms of the settlement], the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol. I regard that approach as consistent with the recommendation in para 4.13 of the Jackson Report.”

Paragraph 4.13 of the Jackson Report was in the form of an identified need to modify the Boxall principles to take account of compliance or non-compliance with the judicial review Pre-Action Protocol.

[7]At the time of hearing the present appeals, we were able to alert counsel to the fact that this Court (the Master of the Rolls, Hallett and Stanley Burnton LJJ) would shortly be handing down judgment in M v London Borough of Croydon. We agreed not to determine these appeals before counsel had had the opportunity to digest and make written submissions on M. Judgment was handed down on 8 May 2012 and we now have those written submissions.

[8]M was concerned with an age assessment decision in relation to a young immigrant. It culminated in a consent order whereby the claimant withdrew his application for judicial review following a concession by the local authority as to his age. The parties were unable to agree costs, which the consent order left to be determined by a judge on consideration of the papers. In due course, a judge in the Administrative Court made no order as to costs. The claimant’s appeal to this Court was successful.

[9]Although M was a judicial review case and therefore turned in part on compliance/non-compliance with the Pre-Action Protocol, the judgment of the Master of the Rolls contains much which can be applied by way of general approach to statutory appeals from the UT. Paragraphs 52-65 of the judgment repay careful reading. The following passages seem to me to be of particular relevance in the present context:

“60. … in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant’s claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case. 61. In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued; that is one of the main points of the pre-action protocols. Ultimately, it seems to me that Bahta was decided on this basis. 62. In case (ii), when deciding how to allocate liability for costs after a trial, the court will normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Given that there will have been a hearing, the court will be in a reasonably good position to make findings on such questions. However, where there has been a settlement, the court will, at least normally, be in a significantly worse position to make findings on such issues than where the case has been fought out. In many such cases, the court will be able to form a view as to the appropriate costs order based on such issues; in other cases, it will be much more difficult. I would accept the argument that, where the parties have settled the claimant’s substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs. That I think was the approach adopted in Scott. However, where there is not a clear winner, so much would depend on the particular facts. In some such cases, it may help to consider who would have won if the matter proceeded to trial, as, if it is tolerably clear, it may, for instance support or undermine the contention that one of the two claims was stronger that the other. Boxall appears to have been such a case. 63. In case (iii), the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases, it may well be sensible to look at the underlying claims and enquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win. 64. Having said that, I should add that I have read what Stanley Burnton LJ says in his judgment, and I agree with it.”

The reference to Scott is to R (Scott) v Hackney LBC

[2009] EWCA Civ 217

[10]The passage in the judgment of Stanley Burnton LJ in M with which the Master of the Rolls was expressing agreement was as follows:

“77. Where the parties are unable to agree costs, and they are left to be determined by the Court, it is important that both the work and costs involved in preparing the parties’ submissions on costs, and the material the judge is asked to consider, are proportionate to the amount at stake. No order for costs will be the default order when the judge cannot without disproportionate expenditure of judicial time, if at all, fairly and sensibly make an order in favour of either party. This is not to say that there are not cases where the merits can be determined and no order for costs can be seen to be the appropriate order; but in such cases that order is not a default order, but an order made on the merits.”

Some features of appeals from the UT

[11]An applicant for permission to appeal to this Court from the UT must first seek permission from the UT. Only if the UT refuses permission, can he seek it from this Court: TCEA, section 13(5). Appeals are only on a point of law: section 13(1). This Court can only allow an appeal, whether by consent or otherwise, if the decision giving rise to the appeal was wrong or unjust by reason of procedural irregularity. Thus, when this Court allows an appeal and remits the case to the UT – a common disposal pursuant to section 14(2) – it is implicitly accepting and acting upon an error of law which is the sole justification for the remittal and the resumption of jurisdiction by the UT. It sometimes happens that in the Statement of Reasons which accompanies the joint application for the appeal to be allowed by consent, the Secretary of State indicates that the error of law is merely “arguable” and that she is consenting to the order for “purely pragmatic reasons”. Whatever the Secretary of State may say, the making of the consent order by this Court assumes an error of law, without which there would be no jurisdiction for this Court to remit or for the UT to revisit the case.

[12]There are differences between a statutory appeal pursuant to section 13 and an application for judicial review, even though they are both subject to permission. They include:(1) the absence of a pre-action protocol in a statutory appeal;

(2) the absence of an obligation on the part of the respondent to engage with the application prior to a grant of permission in a statutory appeal (in judicial review he has to acknowledge service and state his grounds for resistance);

(3) the compressed timescale in statutory appeals – the application to this Court for permission has to be made within 14 days after the refusal of permission by the UT; the appellant’s notice must be served upon the respondent within 7 days after filing with the Court;

(4) the fact that, at the time when the appellant’s notice is served on the respondent, there is no obligation to serve the documents which were before the UT (although these will usually also be in the possession of the respondent in any event).

[13]Relying on some of these features, especially (1) and (2), the practice of the Secretary of State in the great majority of cases is not to engage with the application through the Treasury Solicitor unless and until permission to appeal has been granted. Plainly this obviates need to incur costs at the pre-permission stage. Permission to appeal to this Court is rarely granted by the UT and, when applications for permission are made to this Court, most are refused.

[14]I should also refer to practical considerations which condition the different concerns of the parties. From the individual’s point of view, it is understandable that he does not want to be out-of-pocket when he has achieved all or most of what was sought by the appeal. If his legal representatives are publicly funded, they too have an interest in his obtaining an order for costs, as does the Legal Services Commission. Scott Baker J acknowledged in Boxall (at paragraph 12), the level of remuneration for the lawyers is different between a legal aid and an inter partes determination of the costs. Of course, practitioners know this when they undertake the work. Nevertheless, there is a public interest in there being an adequate number of competent and specialist practitioners willing to do this kind of work on a publicly funded basis. It is well known that some such firms of solicitors have withdrawn from the field in recent years because they no longer considered the work to be profitable. There has been a recent 10% reduction in legal aid rates. Since the hearing of these appeals the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has been enacted, as a result of which legal aid will cease to be available for the majority of immigration cases which do not raise asylum or international protection issues. We are told that the spectre of conditional fee agreements has emerged in immigration cases. All this suggests that a refusal to order costs in favour of a successful or partially successful appellant could lead to a contraction of the availability of competent legal advice and representation and a reduction of access to justice. A similar observation was made in a rather different context by Lord Hope in Re Appeals by Governing Body of JFS

[2009] 1 WLR 2353

, at paragraphs 24-25.

[15]On the other hand, one appreciates the difficulties faced by the Secretary of State. Faced with a high volume of applications for permission to appeal, a substantial majority of which do not overcome the permission hurdle, it is not surprising that, particularly in cash-strapped times, she defers engagement until after permission has been granted. Thereafter, she often consents to the appeal being allowed by consent without undue delay, although in some cases the consent is not forthcoming as soon as it reasonably could be. By not engaging with the majority of proposed appeals, she limits expenditure on her own costs. However, by only engaging after the grant of permission, she is ensuring that the appellant will have incurred the costs of filing his application and skeleton argument, together with court fees, and quite often the costs of an oral application for permission, in a case where it is then agreed that his appeal should succeed, wholly or in part.

Discussion

[16]Although statutory appeals to this Court from the UT have distinctive features, some of which I have already identified, it is common ground that CPR 44.3 applies to them. Accordingly, the starting point is that the Court has a discretion as to whether to make an order that costs are payable by one party to the other (CPR 44.3(1)(a)). If it decides to make such an order, the general rule is that the “unsuccessful” party will be ordered to pay the costs of the “successful” party, although the Court may make a different order (CPR 44.3(2)). In the course of his submissions, Mr Jonathan Hall, on behalf of the Secretary of State, was constrained to accept that there is no special regime for statutory appeals and that if an appellant is indeed the successful party, the Secretary of State, in order to resist an order for costs, will have to satisfy the Court that the circumstances of the particular case are such that the discretion to make an order ought not to be exercised positively. He advanced two particular circumstances why that may be so, without closing the door on further possibilities. The first relates to the nature of the task. The second concerns a specific, but, it is said, common feature of appeals from the UT (IAC) and goes to the issue of the conduct of the appellant.

[17]The first submission draws on the relationship between CPR 44.3(2) and the threshold hypothesis:

“If the court decides to make an order about costs …”

In BCT Software Solutions Ltd v C Brewer & Sons Ltd [2004] CP Rep 2, Chadwick LJ said:

“21… a trial judge should be cautious before making an order as to costs in litigation in which all other issues have been compromised without a full trial . 22… The first question for the court – in every case – is whether it is satisfied that it is in a position to make an order about costs at all … 23… Unless the court is satisfied that it has a proper basis of agreed or determined facts upon which to decide whether the case is one in which it should give effect to ‘the general rule’ – or should make ‘a different order’ (and, if so, what order) – it must accept that it is not in a position to make an order about costs at all. That is not an abdication of the court’s function in relation to costs. It is a proper recognition that the course which the parties have adopted in the litigation has led to the position in which the right way in which to discharge that function is to decide not to make an order about costs.”

[18]I do not question that principled approach. It was propounded in a case concerning costs at first instance following a compromise of the action. We are concerned with appeals, either ones that have been allowed by consent, with the appellant obtaining the very relief sought (for example, a remittal) or ones resolved by the grant of a status which was not previously offered. Even in the context of compromised trials, Chadwick LJ went on to say (at paragraph 25):

“There will be cases (perhaps many cases) in which it will be clear that there was only one issue, that one party has been successful on that issue, and that conduct is not a factor which could replace the general rule.”

Agreeing with that passage, the Master of the Rolls said in M (at paragraph 49):

“In particular, it seems to me that there is no ground for refusing the claimant his costs simply on the ground that he was accorded such relief by the defendants conceding it in a consent order, rather than by the court ordering it after a contested hearing.”

This may be even more readily apparent when this Court allows an appeal and remits a case to the UT, albeit by consent and notwithstanding any reference to “pragmatism” on the part of the respondent. For my part, I am prepared to accept that, in the appellate circumstances with which we are concerned, there may be cases where there are features or complexities which would justify the Court deciding not to make a positive costs order but in the types of disposal with which we are concerned they should be relatively rare. I reject any suggestion that the BCT approach justifies a default position of “no order as to costs” in appeals from the UT. To the extent that Potter LJ seems to have supported such a default position in his brief judgment in Sengoz v Secretary of State for the Home Department

[2001] EWCA Civ 1135

, it is common ground that what he said is not binding upon us and I would respectfully decline to follow it.

[19]The second submission seeks to draw support from the fact that an unsuccessful party in the UT who seeks permission to appeal to this Court must first apply to the UT for permission. Only if the UT refuses permission can he apply to this Court for permission (TCEA, section 13(4) and (5)). It very often happens (and the present cases provide examples) that the application to the UT for permission is made in short form by a legal representative or by someone else with knowledge of the case up to that stage. The time limits are tight (Tribunal Procedure (Upper Tribunal) Rules 2008, rule 48(3A) and (3B)) and the formal requirements are undemanding (rule 48(7)). They do not call for a skeleton argument. Usually, and appropriately, the UT refuses permission. At that stage, it often happens that counsel, or different counsel, is instructed. The publicly funded remuneration rates are better at this level and it is a common occurrence for both parties to be represented by more senior advocates in the Court of Appeal. These are the circumstances which underlie Mr Hall’s submission. Why, he asks rhetorically, should the Secretary of State be burdened with the appellant’s costs in this Court when the appeal is advanced on a more refined basis and in more expensive circumstances? If it had been advanced in this way to the UT, it is possible that permission to appeal would have been granted at that level. If it had been, the Secretary of State would not have been at risk as to costs because the proceedings in the UT are, save in exceptional circumstances, contained within a no-costs jurisdiction. Effectively, Mr Hall submits, the Secretary of State is being penalised for the failure of the appellant to put forward his final case on appeal before proceedings leave the UT. If an appellant has obtained permission to appeal from the UT itself, the same settlement would materialise before cost-shifting became relevant.

[20]In my judgment, this ingenious submission does not succeed. One has to confront the realities that(1) the UT grants permission only in a small number of eventually successful appeals and it is right that its approach should remain conservative;

(2) applications to this Court are inherently more expensive because of the requirements of an appellant’s notice and a skeleton argument (which is usually preceded by counsel’s advice, if only for funding reasons); and

(3) court fees are payable. Moreover, whether the Secretary of State is the respondent or (far less frequently) the appellant, it is the common practice of both parties to deploy different advocates at this level. This is understandable and, as Mr Buley observes, no one has previously contended on a summary or detailed assessment that a successful appellant should be refused his costs of obtaining permission to appeal from this Court on the ground that his failure to obtain it from the UT was relevant conduct for the purposes of CPR 44.3(4)(a), which is the provision upon which Mr Hall seeks to rely. For these reasons, I do not consider that, in general, the Secretary of State, upon effectively conceding an appeal, will be able to avoid an adverse costs order by reference to the failure of the appellant to have obtained permission to appeal before leaving the no-costs regime of the UT. I do not consider that this is conduct that can fairly be held against the appellant.

[21]Next, Mr Hall submitted, in restrained terms, that we should do nothing to discourage the Secretary of State from consenting to the sensible disposal of appeals by consent at an early stage. At one level, it is impossible to disagree with such a proposition. However, it is unlikely that the Secretary of State will continue with resistance to an appeal until a substantive hearing, with the probability of an increased liability for costs, if it is considered that the appeal is, or is probably, meritorious.

[22]All this leads me to the conclusion that once it is accepted (as it is) that there can be no context-specific carve-out from CPR 44 for statutory appeals from the UT, there is no particular characteristic of such appeals which will commonly accrue to the benefit of the Secretary of State in cases of the kind with which we are concerned. In short, if the appellant is clearly identifiable as the successful party, CPR 44.3(2)(a) will usually entitle him to his costs, absent specific matters of conduct or other features which point to a different order being appropriate. The plain fact is that the appellant will have had to have come this far in order to obtain a litigation benefit which the UT has denied him, often because it fell into legal error with the encouragement or acquiescence of the Secretary of State. I appreciate that there are cases in which the Secretary of State may not have been so instrumental – for example, where the legal error is purely one of inadequate reasoning on the part of the UT. However, I would not create a general exception in relation to that.

[23]It follows from what I have said that the crucial question in cases such as this will be the identification of the successful party. As to this, the recent guidance in M will be relevant in the present context, even though we are not in Pre-Action Protocol territory. It is difficult to see why, special protocol considerations apart, the position should be significantly different. After all, in the context of a second appeal, the respondent will usually be familiar with the appellant’s case well before the determination of the UT. I understand why the Secretary of State usually chooses not to engage with an appeal to this Court before permission to appeal has been granted (although she will have been served with the appellant’s notice well before a Lord Justice has considered the application for permission on the papers). It is a matter of prioritising resources, as to which these are especially difficult times. However, that is not a sufficient reason to place a barrier in the way of an identifiably successful appellant. I repeat, indeed, emphasise, that there may be circumstances in a particular case where, for example, the identification of success is not straightforward, or where identified success is accompanied by some feature which raises a genuine conduct issue, or where the Court finds itself unable to come to a clear conclusion without embarking upon a disproportionate investigation. However, if the present cases are typical, such considerations will not be the norm. I now turn to the three cases before us. These three cases AL (Albania)

These three cases

[24]The appellant lost in both the FTT and the UT. The Secretary of State indicated a willingness to agree to a remittal about three weeks after permission to appeal was granted by Sullivan LJ who stated that the appeal had a “strong” prospect of success and referred to the decision of the UT as “plainly wrong”. It is submitted on behalf of the Secretary of State that this case exemplifies the difficulties in identifying a winner and a loser. I disagree. The appellant, an asylum seeker, had to appeal to this Court to obtain a lawful disposal of his appeal in the FTT and the UT. In so doing, significant costs were incurred. Arguments on behalf of the Secretary of State which had prevailed in the UT have now been abandoned. Although some criticism is made of the conduct of the proceedings on behalf of the appellant, it seems to me that it is neither significant nor such that the appellant, as the successful party, should be denied his costs. He sought an order for remittal and that is what he obtained. In the event, his appeal succeeded at the remitted hearing. The Statement of Reasons accompanying the request for an order allowing the appeal by consent asserted in terms that the determination of the UT had been legally erroneous. In the absence of any special indulgence in asylum and immigration cases, it seems to be that this is a plain case for the appellant to be granted an order for costs.

FN (Gambia)

[25]The principal difference between this case and AL is that the Secretary of State did not go so far as to accept that the UT had fallen into legal error. She admitted only of an “arguable” error. However, she joined the appellant in inviting this Court to allow the appeal and this was duly achieved by consent with an order for remittal. As I understand it, the remitted appeal has yet to be determined. However, the appellant was undoubtedly successful in his appeal to this Court. As in AL, there was some refinement in the grounds of appeal after refusal of permission by the UT but, for the reasons given earlier, not so as to disentitle the appellant from the benefit of an order for costs. Again, there was an element of the Secretary of State resiling from her previous stance before the UT.

DH (Bangladesh)

[26]It is difficult to imagine a case in which so much dispute has surrounded so small an issue. It is not an asylum or Article 3 case. It is a modest case about leave to remain as a student. As the Immigration Judge observed in the FTT, “it is quite clear that [the appellant] was and is a genuine student intending to pursue an entirely reputable academic course”. His application was refused by the Secretary of State whose official took the view that the application form had not been completed properly. It was later accepted that the form had been duly completed at a subsequent date but the Border Agency then contended that the financial information was out of date. To cut a very long story short, the Immigration Judge saw and heard the appellant’s solicitor give evidence and he accepted that evidence as truthful and accurate. This amounted to a finding of fact that the form had been properly completed when it was first submitted with financial information that was accurate at the time. The Secretary of State then appealed to the UT. Her appeal was successful which prompted the appellant to seek permission to appeal to this Court. There were also concurrent, albeit swiftly compromised judicial review proceedings. Next, the permission to appeal from the UT to this Court, having first been refused on the papers, was compromised at an oral renewal hearing after the Secretary of State had agreed to reconsider the application for leave to remain on the basis that it had been properly made in time. In other words, the purely technical points which had been taken at the outset (and which, it would seem, were disposed of by the Immigration Judge’s finding of fact) had now fallen away, but only after the appellant had incurred the cost of an application to, and an oral hearing in, this Court. The disposal at that hearing left the question of costs to be determined upon written submissions. To complete the story, when the Secretary of State finally considered the appellant’s application for leave on the merits, leave was granted.

[27]Even now, there are disputes which affect the costs issue. In my judgment, the case for the Secretary of State unduly complicates a straightforward case. The appellant has been put to the expense of pursuing proceedings in this Court quite unnecessarily. The Immigration Judge’s finding of fact is unassailable. It is unnecessary for this Court to embark on an investigation of some of the technicalities which remain the subject of written submissions. By coming to this Court, and not otherwise, the appellant has obtained substantially what he sought. He is the successful party. That this litigation could and should have been completed at an earlier and less expensive stage is not his fault. I agree with Mr Buley that, within the second appeals test, this is a “plain and obvious” case. The appellant should have his costs.

Conclusion

[28]Applying the principles expounded earlier in this judgment, I would make an order for costs in favour of each of the appellants.

Lord Justice Richards:

[29]I agree.

Lord Justice Kitchin:

[30]I also agree.