Tesfay & Ors, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 415

Case Nos: C4/2014/3918, C4/2014/3919, C4/2014/3931, C4/2013/0482[2016] EWCA Civ 415
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
COLLINS J. in Tesfay & Ors v SSHD [2014] EWHC 4048 (Admin).
MITTING J. in R(MB & Ors) v SSHD [2013] EWHC 123 (Admin).
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/05/2016
Before
LORD JUSTICE LLOYD JONESLORD JUSTICE McCOMBELORD JUSTICE BEATSON
Between
THE QUEEN ON THE APPLICATION OFAppellantsSEMERE TESFAYAppellantTARIQ RAHMAAppellantABDO TAYYARAAppellantADAM SOULAIMANAppellantALI SALIHAppellantMesfin BrahaneAppellantYonase TesfayeAppellantGadiso ArarsoAppellantTeklehaymanot KiflemariamAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Stephen Knafler QC, Declan O’Callaghan, and Greg O’Ceallaigh (instructed by Duncan Lewis Solicitors) for Appellants Tesfay, Rahma, Tayyara, Soulaiman and Salih.Hugh Southey QC and Philip Nathan (instructed by Duncan Lewis Solicitors) for Appellants Brahane, Tesfaye, Ararso and KiflemariamAlan Payne and Stephen Kosmin (instructed by the Government Legal Department) for RespondentsHearing Hearing dates : Wednesday 16th & Thursday 17th March 2016
JudgmentLORD JUSTICE LLOYD JONES :
[1]On 19 February 2014 the Supreme Court delivered its decision in EM (Eritrea) v. Secretary of State for the Home Department [2014] UKSC 12; [2014] AC 1321, reversing the decision of the Court of Appeal and remitting the test cases before it to the Administrative Court. Thereafter the Secretary of State withdrew her certification of the human rights claims and reconsidered those claims in, we are told, over 300 other cases. The appeal and the applications before this court concern the appropriate orders for costs following these withdrawals.[2]The appeals and applications before this court fall into three groups.(1) Semere Tesfay, Tariq Rahma and Abdo Tayyara appeal, by leave of Underhill L.J. against the order of Collins J. dated 3 December 2014 (Tesfay and others v. Secretary of State for the Home Department [2014] EWHC 4048). These proceedings concern the return of the appellants to Italy under Regulation 343/2003 (“the Dublin II Regulation”).(2) Applications for costs by Adam Soulaiman and Ali Salih, in relation to which no decision has been made by the court, raise the same or very similar issues to those considered in the judgment of Collins J. These proceedings also concern the return of the applicants to Italy under the Dublin II Regulation. The first two groups are considered together. The individuals in these groups are referred to collectively as “the Italy applicants”.(3) Mesfin Brahane, Yonase Tesfaye, Gadiso Ararso and Teklehaymanot Kiflemariam make applications for costs in their proceedings which concern the return of the applicants to Malta under the Dublin II Regulation. The individuals in this third group are referred to collectively as “the Malta applicants”.[3]The Italy applicants issued proceedings for permission to apply for judicial review of the decision of the respondent certifying as clearly unfounded their human rights claims in accordance with the presumption in section 92(4)(a), Nationality, Immigration and Asylum Act 2002 and paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and ordering their removal to Italy. Although permission to apply for judicial review was granted in none of these cases, the proceedings were variously stayed at different times and for different periods pending the decision in EM (Eritrea). Following the decision of the Supreme Court the decisions certifying the human rights claims were withdrawn by consent. In the cases of Semere Tesfay, Rahma and Tayyara, the issue of costs was left to be determined by the Administrative Court. The order of Collins J. is now appealed to this court. On 2 February 2015 Underhill LJ ordered that the costs applications of Soulaiman and Salih be heard with those appeals.[4]The Malta applicants issued proceedings for permission to apply for judicial review of the certification of their human rights claims and of the orders for their removal. Mitting J. dismissed the applications and refused leave to appeal. All applied to the Court of Appeal for permission to appeal. Permission was refused on paper. At a renewed hearing Aikens L.J. referred the permission application to the full court with the substantive hearing to follow if permission was granted. Before that hearing could take place the respondent withdrew the human rights certifications. On 2 February 2015 Underhill L.J. ordered that the resulting costs applications be heard at the same time as the appeals and applications of the Italy applicants.

The general approach to costs

[5]CPR 44.2(2) provides:
“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.”
CPR r 44.2 (4) provides:
“In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.”
By virtue of CPR r 44.4(3) the conduct of the parties includes conduct before, as well as during, the proceedings, and the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.[6]In R (on the application of Boxall) v Waltham Forest LBC (2001) 4 C.C.L. Rep. 258 Scott Baker J. formulated guidelines concerning the award of costs where judicial review proceedings settle. There claimants judicially reviewed the local authority’s failure to assess their accommodation, community care and welfare needs and its decision not to provide suitable accommodation for them. The proceedings were discontinued after an offer of new accommodation had been made. Having considered the authorities the judge formulated the following guidelines (at [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 on 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 other 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. Central to these guidelines was the question whether the claimant would have succeeded at trial. In that case the judge held that in view of the local authority's failure to carry out a proper and timeous assessment of the claimant’s needs, the claimant was entitled to his costs.[7]The Boxall principles were considered in the final report of the Jackson Review of Civil Litigation Costs at [4.12]-[4.13] which stated that although the Boxall approach made “eminently good sense” at the time that case was decided, it was in need of modification in light of the pre-action protocol for judicial review claims. It recommended that if the defendant settles a judicial review claim after issue by conceding any material part of the relief sought and the claimant has complied with the protocol, the normal order should be that the defendant pays the claimant’s costs.[8]R (on the application of Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895 concerned appeals against costs decisions in immigration cases following consent orders. The Secretary of State had delayed in responding pending a Supreme Court decision in a similar case. Eventually the appellants had been granted what they sought for what was said by the Secretary of State to be "purely pragmatic reasons". In his judgment, with which Sullivan LJ and Hedley J agreed, Pill LJ said that the decision as to costs must be made by reference to the circumstances at the date of the assessment. He considered that, notwithstanding the heavy workload of UKBA and the constraints upon its resources, there could be no special rule for government departments in this respect. He held that the fact that orders for costs will add to the financial burden of the agency, cannot be a reason for depriving other parties, including publicly funded parties, of costs to which they are entitled. He went on to stress at [61] that the fact that one of the parties is publicly funded is not a good reason to decline to make an order for costs. He concluded at [63] – [65]:
“63 I have serious misgivings about UKBA’s claim to avoid costs when a claim is settled for “purely pragmatic reasons”
. My reservations are increased by the claim, on the facts of the present cases, that the right to work was granted for pragmatic reasons. I am unimpressed by suggestions made in the present cases that permission to work was granted for reasons other than that the law required permission to work to be granted. There may be cases in which relief may be granted for reasons entirely unconnected with the claim made. Given the Secretary of State’s duty to act fairly as between applicants, and the duty to apply rules and discretions fairly, a clearly expressed reason would be required in such cases. The expression “purely pragmatic” covers a multitude of possibilities. A clear explanation is required, and can expect to be analysed, so that the expression is not used as a device for avoiding an order for costs that ought to be made. 64 In addition to those general statements, what needs to be underlined is the starting point in the CPR that a successful claimant is entitled to his costs and the now recognised importance of complying with Pre-Action Protocols. These are intended to prevent litigation and facilitate and encourage parties to settle proceedings, including judicial review proceedings, if at all possible. That should be the stage at which the concessions contemplated in Boxall principle (vi) are normally made. It would be a distortion of the procedure for awarding costs if a defendant who has not complied with a Pre-Action Protocol can invoke Boxall principle (vi) in his favour when making a concession which should have been made at an earlier stage. If concessions are due, public authorities should not require the incentive contemplated by principle (vi) to make them. 65 When relief is granted, 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.” Pill LJ declined to “tack on words to the Boxall guidelines” (at [66]) and warned against too readily adopting a default position. He considered that the circumstances of each case required analysis if injustice was to be avoided.[9]In M v Croydon London Borough Council [2012] EWCA Civ 595 it was held the judge had been wrong to make no order as to costs in a case where a local authority had conceded a claim made by an asylum seeker in relation to his age but were not prepared to agree to pay his costs of proceedings. Lord Neuberger MR, in his judgment which Hallett LJ and Stanley Burnton LJ agreed with, departed from Boxall in his analysis:
“58 Accordingly, I conclude that the position should be no different for litigation in the Administrative Court from what it is in general civil litigation. In that connection, at any rate at first sight, there may appear to be a degree of tension between this conclusion, which applies the ‘general rule’ in CPR 44.3(2)(a), and the fifth guideline in Boxall, at least in a case where the settlement involves the defendants effectively conceding that the claimant is entitled to the relief which he seeks. In such a case, the claimant is almost always the successful party, and should therefore, at least prima facie, be entitled to his costs, whereas the fifth guideline seems to suggest that the default position is that there should be no order for costs. Similarly, there could be said to be a degree of tension between what was said in paras 63-5, and the view expressed in para 66, of Bahta. 59 In my view, however, on closer analysis, there is no inconsistency in either case, essentially for reasons already discussed. Where, as happened in Bahta, a claimant obtains all the relief which he seeks, whether by consent or after a contested hearing, he is undoubtedly the successful party, who is entitled to all his costs, unless there is a good reason to the contrary. However, where the claimant obtains only some of the relief which he is seeking (either by consent or after a contested trial), as in Boxall and Scott, the position on costs is obviously more nuanced. Thus, as in those two cases, there may be an argument as to which party was more ‘successful’ (in the light of the relief which was sought and not obtained), or, even if the claimant is accepted to be the successful party, there may be an argument as to whether the importance of the issue, or costs relating to the issue, on which he failed.”
Lord Neuberger MR, while observing that in every case the allocation of costs will depend on the specific facts, identified a “sharp difference” between three distinct situations. First, where a claimant has been wholly successful it is hard to see why he should not recover all his costs, unless there is some good reason to the contrary. Secondly, where he has only partially succeeded, the court would 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 by how much the costs were increased as a result of pursuing the unsuccessful claim. Thirdly, in a case where there has been some compromise which did not actually reflect the claimant's claims, the court is often unable to gauge whether there is a successful party in any respect. In such cases there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it might be sensible to look at the underlying claims and ask whether it was tolerably clear who would have won if the matter had not settled (at [58-63]).[10]In Emezie v Secretary of State for the Home Department [2013] EWCA Civ 733 the appellant appealed against a decision that there should be no order as to costs following a consent order in her favour. Sir Stanley Burton considered that the judge had applied the wrong test. The test in Boxall was no longer applicable and had been superseded by M v Croydon. The current starting point was whether the claimant had achieved what he sought in his claim.[11]In R (TH) v East Sussex CC [2013] EWCA Civ 1027 this court emphasised that the first principle stated by Lord Neuberger MR in M v. Croydon is not absolute and should not apply where there is a good reason to the contrary. Jackson LJ also remarked that there is a high duty on both parties to public law litigation to take advantage of any reasonable and sensible opportunity for settlement which presents itself.[12]Finally in this regard I note the observations of Lord Hope in R (E) v JFS Governing Body [2009] [2009] UKSC 1 that the failure of a legally aided litigant to obtain a costs order against another party may have serious consequences because, among other things, the level of remuneration for the lawyers is different between a legal aid and an inter partes determination of costs (at [24]).

The approach on appeal against a costs order

[13]Before an appellate court may interfere with a costs order it has to be satisfied that the judge below has either erred in principle or in his approach, or has left out of account or taken into account some feature that he should or should not have considered, or that his decision is wholly wrong because he has not balanced the various factors fairly in the scale. (See R (KR) v. Secretary of State for the Home Department [2012] EWCA Civ 1555 at [7], applying AEI Rediffusion Music Limited v Phonographic Performance Limited [1999] 1 WLR 1507).[14]In M v. Croydon Lord Neuberger MR described the role of an appellate court in the following terms: “44 There are three relevant general principles which appear to me to apply to awards of costs after a trial in ordinary civil litigation. The first is that any decision relating to costs is primarily a matter for the discretion of the trial judge, which means that an appellate court should normally be very slow indeed to interfere with any decision on costs. However, while wide, the discretion must be exercised rationally and in accordance with certain generally accepted principles. To a large extent, those principles are set out in CPR 44.3, and in particular, paras (2), (4), (5), and (6). If the trial judge departs from rationality or the correct principles then it is legitimate for an appellate court to interfere with his conclusion”.[15]Mr. Knafler QC for the Italy applicants drew our attention to Hunt v North Somerset Council [2015] UKSC 51. Here the appellant sought judicial review of a decision of the local authority to reduce the funding of youth services in its budget. The Court of Appeal decided the substantive issues in favour of the claimant but refused the relief sought, a quashing order, because it was considered too late to reopen the budget. The claimant did not seek declaratory relief and no such relief was granted. The Court of Appeal held that the local authority was the “successful party” and therefore in principle entitled to costs and awarded it half its costs. On appeal the Supreme Court set aside the costs order, holding that the Court of Appeal had fallen into error by treating the local authority as the successful party. Lord Toulson JSC, with whom the other members of the Supreme Court agreed, stated at [16]:
“If a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown why he should not recover his reasonable costs.”

The legal background to these proceedings

[16]The submissions of the parties in relation to the award of costs can only be understood against the background of the evolving law on human rights claims in the context of third country cases.[17]In MSS v Belgium (2011) 53 EHRR 2, a Grand Chamber of the European Court of Human Rights held that Belgium was in breach of Articles 3 and 13 ECHR by sending asylum seekers back to Greece, which was in systemic default of its international obligations owing to various deficiencies in the Greek asylum procedure and the reception conditions. The Court considered it necessary to take into account the individual circumstances of the applicant’s placement in detention (at [225]). The Court also considered that over a number of years the UNHCR and many other bodies and organisations had revealed major structural deficiencies in Greece’s asylum procedure. The Court held that there had been a violation of Article 13 of the Convention taken in conjunction with Article 3, as asylum seekers were deemed at risk of being removed without having their applications seriously examined by the Greek authorities and in the absence of an effective remedy they were not protected against arbitrary removal (at [300] and [321]). The Court found that by transferring the applicant to Greece the Belgian authorities knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment. These conditions were well known to the Belgian authorities before the transfer of the applicant and were freely ascertainable from a wide number of sources. The procedure in Belgium made no provision for individual explanations of why an applicant did not wish to be transferred; instead the Belgian authorities applied the Dublin II Regulation systematically (at [366]).[18]In Joined Cases C-411/10 and C-493/10, R (NS) v Secretary of State for the Home Department and E and others vRefugee Applications Commissioner [2013] QB 102 a Grand Chamber of the Court of Justice of the European Union (“CJEU”) gave a preliminary ruling on the interpretation of the Dublin II Regulation and Articles 1, 4, 18, 19(2) and 47, and Protocol (No.30) of the Charter of Fundamental Rights of the European Union (“the EU Charter”). The Court decided that although there is a presumption that asylum seekers will be treated by Member States in a way which complies with fundamental rights, this presumption must be regarded as rebuttable (at [75]-[80], [104]). It held (at [106]):
“Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the member states, including the national courts, may not transfer an asylum seeker to the “member state responsible” where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.”
[19]The claimant in R (Efrem Medhanye) v Secretary of State for the Home Department [2012] EWHC 1799 (Admin) was an Eritrean national who had sought asylum in the United Kingdom, having previously claimed asylum in Italy. He challenged the decision of the Secretary of State to remove him to Italy and to certify, as “clearly unfounded”, his claim that removing him to Italy would breach his rights under the ECHR. Proceedings were stayed pending the decision of the CJEU in NS. Kenneth Parker J refused the application on the basis that NS requires a systemic failure and held (at [14]-[15]):
“… The central principle of such a union is that member states of the union have mutual trust and confidence in each other, particularly mutual trust and confidence that each state will faithfully comply with binding provisions of union law, including, most importantly, provisions of union law protecting fundamental human rights. In that context, it might be thought that it would be inconsistent with the principle of mutual trust and confidence to impose a legal duty on one member state in effect to monitor whether another member state was complying with its obligations under union law, including its obligation to respect fundamental human rights. … … Nonetheless, with due regard to the “raison d'être” of the EU, the CJEU very carefully and with great precision delineated precisely the nature and scope of the legal duty of the transferring Member State. The nature and scope of the duty is set out in paragraph 86 of the judgment of the CJEU. In my view, given in particular this important constitutional issue at stake in NS, that duty simply excludes the independent operation of Article 1 of the Charter. …”
[20]The case of R (Meaza Asefa) v Secretary of State for the Home Department [2012] EWHC 56 (Admin) concerned a mother and her children from Eritrea who had been granted refugee status in Italy but had come to the United Kingdom and claimed asylum again under a different name. The Secretary of State certified her Article 8 claim as unfounded and set removal directions to Italy. The issues before the Court were whether the claim could be said to be clearly unfounded once the best interests of the children were taken into account and whether the Secretary of State was arguably wrong in law to refuse to transfer refugee status (at [29-30]). Langstaff J. held at [41] that if it is to be assumed that “generally prevailing conditions in Italy all meet a minimum standard” then “there is no sufficient reason to think that for some reason personal to the Claimant or her children the generality would not apply to her or them”. He said at [59]:
“In a case such as the present, it is to be assumed unless the contrary can be established that there are no significant differences in risk, security and the assurance of fundamental rights as between the UK and Italy. If it were so, the decision in EW would not have been as it was. There is no reason in the evidence before me that establishes a reason why the generality applicable to refugees in Italy should not hold good for the Claimant.”
He continued (at [61]) that “it is well established that a sufficiency of state protection is not discounted merely because of incidents untypical of the whole, or “aberrations”.” The claim was dismissed.[21]The decisions of Parker J in Medhanye and of Langstaff J in Meaza Asefa were appealed to the Court of Appeal in a group of four joined cases. In R (EM (Eritrea)) v Secretary of State for the Home Department [2012] EWCA Civ 1336 the Court of Appeal had to determine whether the appellant asylum seekers could be returned to Italy when the Secretary of State had decided that the statutory presumption applied. The question for the Court was whether any tribunal could lawfully determine the material claim to be well founded (at [6]). Sir Stephen Sedley, delivering the judgment of the court, analysed the jurisprudence and said (at [39]):
“Two things can be said of this jurisprudence, which for the present has placed Greece outside the Dublin II system. One is that the assessment of risk on return is seen by the Strasbourg court as depending on a combination of personal experience and systemic shortcomings which in total may suffice to rebut the presumption of compliance. The other is that in this exercise the UNHCR's judgment remains pre-eminent and possibly decisive.”
He further stated (at [47]):
“It appears to us that what the CJEU has consciously done in NS is elevate the finding of the ECtHR that there was in effect, in Greece, a systemic deficiency in the system of refugee protection into a sine qua non of intervention. What in MSS was held to be a sufficient condition of intervention has been made by NS into a necessary one. Without it, proof of individual risk, however grave, and whether or not arising from operational problems in the state's system, cannot prevent return under Dublin II.”
The court stated (at [61]) that it was unable to accept that the applicable test was whether the claimants would face a real risk of inhuman or degrading treatment if returned to Italy. Referring to NS it concluded instead (at [62]) that it is essential for the source of the risk to be a systemic deficiency:
“In other words, the sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter's asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail.”
[22]R (AB (Sudan)) v Secretary of State for the Home Department [2013] EWCA Civ 16 was an application for permission to appeal against an order of Upper Tribunal Judge Ockleton sitting in the Administrative Court refusing to grant a stay of judicial review proceedings pending the appeal to the Supreme Court in R (EM (Eritrea)) v Secretary of State for the Home Department [2012] EWCA Civ 1336. Jackson LJ gave permission to appeal on the basis that it did not follow from the Court of Appeal judgment in EM that the claim had no realistic prospect of success. He added that this is a fast developing area of law (at [29]). He concluded it would be wasteful of resources for a claimant to be pitched into a trial prematurely, when it may very well be that the Supreme Court is about to clarify this difficult area of law (at [31]). However, at the full hearing of AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921 he came to a different conclusion and dismissed the appeal. He cited the observation of Pill LJ in Bahta at [70], that what the Court of Appeal says is the law, is the law, unless and until overruled by a superior court or by Parliament. Likewise country guidance decisions should generally be applied unless and until they are reversed or superseded (at [31]). He concluded (at [51]) that it was now unlikely that the Supreme Court’s clarification in EM would have a critical impact upon the outcome of the present litigation. Davis LJ concurred and referred to the need to be robust when considering stays in immigration cases to avoid endless delays and logjams as there will always be a pending case that will arguably justify a stay (at [55]-[56]).[23]The Supreme Court allowed the appeal in R (EM (Eritrea)) v. Secretary of State for the Home Department [2014] UKSC 12; [2014] AC 1321. Lord Kerr JSC, with whom the other members of the Supreme Court agreed, stated (at [58]):
“I consider that the Court of Appeal's conclusion that only systemic deficiencies in the listed country's asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in Soering v United Kingdom (1989) 11 EHRR 439. The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR.”
There is a “significant evidential presumption” that listed states will comply with their Convention obligations and it is against this backdrop that any claim that there is a real risk of breach of Article 3 rights falls to be addressed (at [64]). Lord Kerr went on to observe at [66]:
“Systematic” is defined as “arranged or conducted according to a system, plan, or organised method” whereas the definition of the word “systemic” is “of or pertaining to a system”
. Taken in context, I believe that Kenneth Parker J’s statement that it had to be shown that there was a systematic and significant failure to comply with international obligations meant that the omissions were on a widespread and substantial scale. His approach is rather different that it needed to be shown that there were inherent deficiencies in the system, merely that there were substantial operational problems. This approximates (at least) to what I consider is the true import of the decision in the NS case.” He considered that “practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill treatment if there is an enforced return” (at [68]). The Supreme Court remitted all four cases to the Administrative Court for an examination of the evidence to take place to determine whether in each case it is established that there is a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention (at [69]).[24]For present purposes, three essential points emerge from the decision of the Supreme Court in EM (Eritrea). First, the existence of systemic deficiency in a country’s asylum or reception procedures is not a necessary pre-requisite to a finding of a real risk that Article 3 rights would be infringed. Secondly, the categories of admissible evidence are not restricted as stated by the Court of Appeal. Thirdly, the personal experiences of asylum seekers are to be taken into account.[25]In R (Tabrizagh) v Secretary of State for the Home Department [2014] EWHC 1914 (Admin) Laing J applied EM (Eritrea) and the Soering test. The claimants all resisted their return to Italy under the Dublin II Regulation and argued they should be entitled to an “in-country” right of appeal to the First Tier Tribunal (“FTT”). The judge found that the evidential presumption of compliance had not been displaced in the case of Italy. The most recent UNHCR reports did not paint a picture that “even begins to meet the test” and other reports put forward were of “very little” weight (at [166-169]). However, she pointed out (at [178]) that her decision that the evidential presumption is not arguably displaced was not decisive, as she was also required to consider whether the FTT could find individual risk factors relevant to article 3, and allow an appeal on that basis, by applying the Soering test to the evidence. She considered the individual applications on the current evidence about the Italian asylum system and finally dismissed the applications as the claims would be bound to fail before the FTT (at [179-190]) The Italy cases The history of the Semere Tesfay Proceedings

The Italy cases

[26]It is necessary to refer in some detail to the procedural history. However, the parties were content that we concentrate on the proceedings brought by Mr. Semere Tesfay which have many features in common with the other cases.[27]The claim form seeking permission to apply for Judicial Review was issued on 15 February 2012. The decisions to be judicially reviewed are identified on the form as the Secretary of State’s certification of the asylum claim and the removal directions to Italy. The removal directions had been issued on the 6 February 2012 and were due to take effect on 16 February 2012. In Section 4 the form stated that there had not been compliance with the pre-action protocol. The reasons for non-compliance were stated as follows:
“Not applicable to this type of matter as the defendant’s policy states that removals under Dublin Convention would only be cancelled on receipt of a Judicial Review application. As removal was imminent we did not have time to send the letter before action.”
The claim form does not identify the remedy sought beyond the statement at paragraph 40 of the grounds that the claimant contends that his case should be reconsidered in the Grounds for Judicial Review. Mr. Semere Tesfay referred to the fact that he had suffered a significant period of street homelessness in Italy and maintained that his experiences were relevant to the challenge that the Secretary of State’s decisions.[28]On 15 February 2012, the same date on which the claim form was issued, Duncan Lewis (Solicitors acting for Mr. Semere Tesfay) wrote to the Secretary of State submitting his human rights claim. We have been told that it was not feasible to include this claim in the judicial review application in the time available.[29]By letter dated 7 March 2012 the Secretary of State certified Mr. Semere Tesfay’s human rights claim as clearly unfounded, pursuant to Schedule 3, Part 2, Paragraph 5(4) of the Asylum & Immigration (Treatment of Claimants Section) Act 2004. The letter placed particular reliance on the judgment of the CJEU in NS v SSHD. In particular, attention was drawn to the presumption that the treatment of asylum seekers in all Member States complies with the requirements of the EU Charter, the Geneva Convention and the ECHR, and to the fact that the presumption may be rebutted by sufficient relevant evidence which establishes that the transferring Member State cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Members State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman and degrading treatment. Furthermore, on the basis of NS, the letter stated that the information enabling Member States to make such an assessment comprises regular and unanimous reports of international non-governmental organisations, correspondence sent to UNHCR by Member States and European Commission Reports and proposals for amendment of the Dublin II Regulations.[30]On 21 March 2012 Singh J. refused permission to apply for judicial review.[31]On 29 March 2012 Mr. Semere Tesfay lodged grounds of renewal. I note that these grounds included the submission that whether the presumption of compliance with international obligations was overcome was simply a question of fact to be resolved on the evidence and that the references in NS to forms of evidence were no more than summaries of the evidence that was sufficient, but not of itself necessary, to satisfy the test.[32]A hearing of the renewed application had been fixed for 21 June 2012. On the 7 June 2012 Duncan Lewis wrote to the Treasury Solicitor proposing that the judicial review proceedings be stayed pending the outcome of the proceedings in the Italy challenges then before the Court of Appeal. However, by letter dated 11 June 2012, the Secretary of State replied refusing to agree a stay of the proceedings or that the hearing on the 21 June 2012 be vacated.[33]By letter dated 20 June 2012 Duncan Lewis made further submissions to the Treasury Solicitor contending that the issues raised in this claim for judicial review were to be determined in other proceedings that were significantly more advanced, including proceedings in the Court of Appeal which would result in decisions binding on the Administrative Court, and that it would be an unjustifiable expenditure of public funds for the oral permission hearing to take place. That proposal was rejected by the Secretary of State on the same day.[34]On 20 June 2012 at a hearing before Mr. Jeremy Stuart-Smith QC, sitting as a Deputy High Court Judge, the Deputy Judge ordered that the proceedings be stayed until judgment was delivered by the Court of Appeal in EH (Iran).[35]On 17 October 2012 the Court of Appeal delivered its judgment in EM (Eritrea). It refused permission to appeal to the Supreme Court, leaving that for the Supreme Court to consider, but noted that it was problematic that NS and MSS may pull in different directions and that whilst NS binds the court, so does the EU principle of not undercutting ECHR rights such as those articulated in MSS. It also made an order prohibiting the Secretary of State from removing the appellants from the United Kingdom pending the final determination by the Supreme Court of their application for permission to appeal to the Supreme Court.[36]On 18 October 2012, the next day, the Treasury Solicitor wrote to Duncan Lewis drawing attention to the judgment of the Court of Appeal. “The Court of Appeal has dismissed the appellants’ claims and refused them leave to appeal to the Supreme Court. In a clear and comprehensive judgment, the Court concluded that removals to Italy under the Dublin Regulation are lawful and that the evidence available does not rebut, by some margin, the presumption that Italy will comply with its international obligations (including the ECHR). In summary, the Court determined that in the absence of evidence of a risk to the applicant deriving from a systemic deficiency in a State’s asylum or reception procedures, removals to that State under the Dublin Convention are lawful. The Court went on to find that the evidence in relation to Italy does not meet this threshold. … The Court went on to state evidence of individual risk (deriving from an applicant’s previous experiences or from his particular circumstances) was irrelevant to this analysis. The Court concluded that claims are “incapable of succeeding under Article 3 on the present evidence” For the avoidance of doubt, the Court made clear that this analysis relates to all categories of Dublin returnees: that is, to asylum seekers, to those who have been recognised as refugees, and to those whose asylum claims have been refused.” Against that background the Treasury Solicitor invited Mr. Semere Tesfay to withdraw his Judicial Review proceedings and, where appropriate, to consent to any injunction against removal being lifted. The Treasury Solicitor enclosed a form of consent. The letter also stated that in the event that Mr. Semere Tesfay was not minded to withdraw these proceedings he was invited to amend his grounds within seven days specifically pleading how it was said that his claim could be arguable notwithstanding the Court of Appeal’s decision in EM. The letter continued:
“I wish to emphasise that, given the broad nature of the Court of Appeal’s conclusions, it is considered the challenges based on the alleged situation in Italy have no merits. Consequently, should you choose to amend your client’s grounds, insofar as the Court subsequently concludes that these amendments do not distinguish your client’s case from EM we will be seeking an appropriate costs order (including indemnity costs in relevant cases). In the event that neither a signed consent order nor an amended grounds raising issues in addition to those determined in the case are submitted within 7 days the Secretary of State would invite the Court to dismiss the claim, and proceed immediately to set removal directions.”
[37]Mr. Semere Tesfay did not amend his grounds immediately because of other developments in the Italy litigation. On 6 March 2013 the Supreme Court gave permission to appeal in EM.[38]On 26 July 2013 the Court of Appeal handed down its judgment in AB (Sudan) v SSHD, a test case on the issue of whether cases challenging removal to Italy under the Dublin II Regulation should be stayed pending the Supreme Court’s decision in EM (Eritrea). The Court of Appeal unanimously dismissed the appellant’s appeal and the appellant did not seek to appeal that decision further.[39]On 31 July 2013 the Treasury Solicitor wrote to Duncan Lewis requiring Mr. Semere Tesfay to withdraw his proceedings or to amend his grounds of appeal within 14 days specifically pleading how it was said that the claim could be arguable. Once again the letter stated that should the grounds be amended the Secretary of State would seek expedition of the case and in the event that the court subsequently concluded that the amendments did not distinguish the case from EM he would seek an appropriate costs order and would consider seeking indemnity costs. He stated that the purpose of the letter was to minimise further unnecessary expenditure of public funds.[40]Mr. Semere Tesfay lodged further submissions on 17 August 2013 in which he maintained, inter alia, that the test of systemic deficiency had been wrongly applied by the Court of Appeal in EM (Eritera) and that in considering whether the return of an individual asylum seeker or refugee to Italy would lead to a breach of Article 3 ECHR it was necessary to analyse both the individual circumstances of that person including his particular vulnerabilities and experiences in Italy, and the objective evidence and the question of whether or not the Italian system was in a state of systemic collapse.[41]On 6 January 2014 the Secretary of State issued a supplementary certification of the human rights claim.[42]On 9 January 2014 the Treasury Solicitor issued a Reply to the Claimant’s Amended Grounds. Those submissions repeated the point that the presumption could only be rebutted by evidence of systemic deficiencies in the asylum procedure or reception conditions and that the categories of evidence admissible in this regard were restricted by NS.[43]The application for permission to apply for judicial review was listed for hearing on 1 May 2014. However, before that, on 19 February 2014 the Supreme Court gave judgment in EM (Eritrea). This led to a letter from the Treasury Solicitor dated 26 March 2014 which stated:
“In light of: i) The Supreme Court’s decision in EM (Eritrea)… and ii) The additional material that you client has submitted since the decision under challenge in these proceedings; My client has now withdrawn her decisions dated 7 March 2012 and 6 January 2014 in relation to your client’s Human Rights claim. The application for Judicial Review is now therefore academic and you are invited to withdraw these proceedings on the terms set out in the attached consent order. My client will now consider the materials submitted in support of your client’s Human Rights claim, including the materials submitted in the course of these proceedings, and will issue a new decision in due course. Should your client wish to rely on any further material in support of his Human Rights claim, he is invited to submit any such material within 14 days of signature of the attached consent order. My client will not consider any material submitted after that date in her consideration of your client’s Human Rights claim. This position is consistent with the recent Court of Appeal decision in R (A) v Chief Constable of Kent… and the observations of Mr. Justice Ouseley in the hearing in the case of B v SSHD on 21 February 2014.”
The letter went on to explain that in B Ouseley J. had made clear that in challenges to the certification of human rights claims on third country grounds the lawfulness of a decision could not be challenged by reference to subsequent documents that were not before the decision maker at the time. He had criticised the practice that had developed whereby claimants submitted additional material whilst judicial proceedings were ongoing which triggered further decisions by the Secretary of State which were then challenged by way of amendments to the existing proceedings.[44]The parties could not agree on an order for costs so they agreed that the costs should be considered by the court on the basis of written submissions.[45]The applications of Mr. Semere Tesfay, Mr. Rahma and Mr. Tayyara for their costs were heard by Collins J on 10 November 2014: R (Tesfay and others) v. Secretary of State for the Home Department [2014] EWHC 4048 (Admin). Collins J. awarded the applicants their costs of preparing and lodging their claims but refused to award them their costs thereafter. Collins J. stated:
“24 In M v Croydon [2012] 1 WLR 2607, the Court of Appeal considered the approach to costs in judicial review claims which were settled. The court made clear that where a claimant obtained all the relief he sought, he should normally receive his costs unless there was a good reason for a different decision. It is thus necessary to consider what is claimed and, if too much, that can affect costs if less is granted following a consent order. Here there can be no doubt that the main relief was the quashing of the decisions, but that would be limited to a reconsideration. Any further mandatory order or declaration would have been refused. Thus there would not have been total success, but it would have been substantial. 25 However, no relief could have been obtained unless the court was persuaded that the decision under attack was unlawful. The defendant has never conceded unlawfulness. The withdrawal was made partly because of the lapse of time with a view to dealing with the up-to-date position. Thus in considering an appropriate order it is necessary to consider whether the claimants would have established that the decisions were unlawful. 26 I have no doubt that the claimants could not and cannot show that they would have been likely to succeed. But the law was unclear and there were real concerns about Italy. It was necessary to prevent removal. As I have said, ideally pre-action protocol letters should have been lodged, but as appears from the response in Tayyara, they would not have been likely to have succeeded. Of course, there is a problem facing all such as the claimants because they need to obtain advice and assistance, and there is a short time normally between the decision to remove and the date of removal. Thus I am persuaded that it was reasonable, if only to stop removal, to lodge these claims. 27 However, since I am satisfied that success was improbable (and I note that there were initial refusals of leave in Tesfay and Rahma), I do not think that the claimants should be entitled to costs thereafter. This may seem harsh on those who represented them, but the disadvantageous amounts between legal aid costs and costs awarded to successful parties who are legally aided cannot influence my approach. 28 Thus I shall direct that these claimants (and I suspect many others whose claims are dependent on these) should have their costs of preparing and lodging the claims. That, of course, will include the drafting of grounds and, where appropriate, payment of counsel's fees in relation to the drafting of grounds. But thereafter, there should be no order for costs.”

Jurisdiction

[46]The respondent has raised the issue of whether this court has jurisdiction to make an order in respect of costs incurred in proceedings before this court and below in circumstances where permission to appeal to the Court of Appeal had not been granted at the time the proceedings were withdrawn. Having raised this issue in relation to pre-permission costs of a withdrawn permission decision, Mr. Payne states in his skeleton argument that, without any concession being made as to the issue of the Court of Appeal’s jurisdiction, the respondent does not dispute the jurisdiction of the Court of Appeal for the purposes of this hearing. This is unsatisfactory. The issue of the court’s jurisdiction having been raised, the court is bound to address it of its own motion and is entitled to the assistance of the Secretary of State.[47]After we stated that we required submissions on the point, Mr. Payne submitted that, with the exception of the cases of Semere Tesfay, Rahma and Tayyara, where this court is seised of an appeal against the order of Collins J., the effect of the pre-permission withdrawal of the proceedings was that this court has jurisdiction over the costs of the proceedings before it, but not over the costs below. On behalf of the appellants it was submitted that this court has jurisdiction over both categories of costs.[48]I am satisfied that jurisdiction exists in respect of both categories of costs. So far as concerns costs incurred in making an application to the Court of Appeal for permission to appeal, section 51, Senior Courts Act 1981 provides in relevant part:
“(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in (a) the civil division of the court of Appeal; … shall be in the discretion of the court.”
Costs incurred in applying for permission to appeal are, in my view, incidental to proceedings in this court. (a) the civil division of the court of Appeal; … shall be in the discretion of the court.”[49]So far as the costs below are concerned, section 15, Senior Courts Act 1981 provides in relevant part:
“(3) For all purposes of or incidental to – (a) the hearing and determination of any appeal to the civil division of the court of Appeal: … the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.”
This provision is widely drawn. I consider that adjudication on the costs below is incidental to the hearing and determination of an appeal to this court, notwithstanding that the applications for permission were withdrawn (subject to the determination of costs by the court) before permission was granted. (a) the hearing and determination of any appeal to the civil division of the court of Appeal: … the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.”

Italy cases

[50]In their appeal against the order of Collins J., Mr. Semere Tesfay, Mr. Rahma and Mr. Tayyara advance two grounds of appeal. Ground 1: The judge adopted an unlawful test, reverting to the approach in Boxall. Ground 2: In any event, the judge erred because(a) The reasoning justifying the award of the costs of issuing the judicial review proceedings also applied to the costs of continuing the proceedings;(b) Even if the judge was correct to ask whether the appellants would have secured orders quashing the certification of their human rights claims, he was wrong to conclude that they would not have succeeded.[51]The submissions advanced in support of these grounds are also made in support of the applications by Mr. Sulaiman and Mr. Salih. It is convenient to refer to all five claims collectively. Ground 1: The judge adopted an unlawful test, reverting to the approach in Boxall.[52]The claimants submit that the approach adopted by the judge was inconsistent with that laid down by this court in Bahta and in M v. Croydon and reverted to the approach previously employed under Boxall. The judge, it is said, should have concentrated not on the question as to which party would have succeeded if the proceedings had run their course but on the extent to which the claimant should be regarded as having succeeded as a result of the settlement.[53]It is apparent that in his judgment, which has been referred to in detail above, the judge concentrated on the issue of who would ultimately have succeeded in the proceedings. Thus he observed, at [12], that it will be for the court to consider whether, as the claim stood, the claimant would have been likely to succeed in whole or in part. Similarly, at [15] he stated that where there is a withdrawal of a decision by the Secretary of State, the court will in a contested costs application have to consider whether the outcome would have been favourable to the claimant. At [24] he stated, correctly, that in M v. Croydon the court made clear that where a claimant obtained all the relief he sought, he should normally receive his costs unless there was a good reason for a different decision. In his view the main relief was the quashing of the decisions which would have led to reconsideration but any further mandatory order or declaration would have been refused, so that there would have been substantial but not total success. However, he observed , at [25] –[26], that the respondent had never conceded unlawfulness and thus in considering an appropriate order it was necessary to consider whether the claimants would have established that the decisions were unlawful. Here he concluded that he had no doubt that the claimants could not show that they would have been likely to succeed. I take this to be a reference to ultimate success, as opposed to securing a reconsideration of the human rights certification. As he was satisfied that success was improbable, he concluded that the claimants were not entitled to their costs other than the costs of issuing proceedings which had to be incurred in order to prevent removal (at [26] – [28]).[54]On behalf of the respondent, Mr. Payne submits that the judge was entitled to have regard to the prospects of success. In this regard he draws attention to the second category of case identified by Lord Neuberger MR in M v. Croydon: where a claimant has only succeeded in part following a settlement. In relation to this category the Master of the Rolls stated (at [62]):
“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. … 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 had 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 than the other.”
Mr. Payne submits that these are, indeed, cases where the claimant has succeeded in part and that it was therefore legitimate for Collins J. to consider whether the outcome would have been favourable to the claimants.[55]To my mind, this passage does not assist the respondent. First, for reasons set out later in this judgment, I do not consider that in these cases the claimants should be taken to have succeeded only in part. Secondly, the approach is proposed as a means of testing the relative strength of the competing claims. Thirdly, as the passage indicates, such an approach would be likely to be useful only if it is tolerably clear who would have won. Fourthly, and most fundamentally, this passage certainly does not support a return to the Boxall approach. Moreover, as Mr. Knafler points out, the whole purpose of M v. Croydon is to avoid the need for the court to undertake an investigation into which party would have won had the matter gone to trial, with all the consequences such an investigation would bring for costs and judicial resources.[56]Accordingly I consider that the judge should have approached this matter by asking two questions. First, was the effect of the withdrawal of the certification of the human rights claims that the claimants should be regarded as having succeeded so that in accordance with Bahta and M v. Croydon they should normally receive their costs? Secondly, if so, was there a good reason for making a different order?

How successful were the appellants?

[57]At the heart of this dispute as to costs lies the question of what should be considered a success in public law litigation. Whereas in a settlement of private law litigation it is usually possible to identify with some precision the extent to which a party has been vindicated, the position following compromise of public law litigation is often not so clear cut. Proceedings for judicial review are brought by persons dissatisfied with decisions of public bodies. However, the courts are not the decision makers and often in public law the most that can be achieved is an order that the decision maker reconsider on a correct legal basis. That may not lead to ultimate victory for the applicant because the new decision may be a lawful decision against the interests of the applicant. Nevertheless, to achieve an order for reconsideration will often be a substantial achievement. Success in public law proceedings must be assessed not only by reference to what was sought and the basis on which it was sought and on which it was opposed, but also by reference to what was achievable.[58]The grounds on which the appellants sought in their judicial review proceedings to challenge the human rights certifications in their respective cases were essentially those that succeeded before the Supreme Court in EM (Eritrea). I would draw attention to the following matters in particular.(1) In his grounds for renewal dated 29 March 2012 Mr. Semere Tesfay submitted that whether the presumption of compliance with international obligations is overcome is simply a question of fact to be resolved on the evidence and that the references in NS to forms of evidence were no more than summaries of the evidence that was sufficient, but not of itself necessary, to satisfy the test. In his further submissions dated 17 August 2013 he maintained, inter alia, that the test of systemic deficiency had been wrongly applied in EM (Eritera) and that in considering whether the return of an individual asylum seeker or refugee to Italy would lead to a breach of Article 3 ECHR it was necessary to analyse both the individual circumstances of that person including his particular vulnerabilities and experiences in Italy, and the objective evidence and the question of whether or not the Italian system was in a state of systemic collapse.(2) Mr. Soulaiman’s grounds of claim accompanying his claim form issued on 13 September 2011 indicated that he raised the same issues as were decided in EM (Eritrea).(3) In Mr. Salih’s case Duncan Lewis wrote a letter before action dated 19 July 2012 requesting a stay pending the outcome of the appeal in EM (Eritrea). The claim form issued on 20 July 2012 made clear that he sought a stay in order to have his case determined in accordance with the test cases.(4) In his claim form dated 11 July 2012 Mr. Rahma sought a stay of removal and relied upon the stays ordered in proceedings in related matters. He submitted, inter alia, that the approach of the High Court in R (Medhanye) v SSHD was flawed in law in that it relied upon an exclusionary rule of evidence and treated decisions of the higher European Courts as requiring unequivocalevidence of a systemic breach of Article 3 rights.(5) In Mr. Tayyara’s case the grounds relied on in the claim form dated 16 August 2012 included a submission that the presumption of compliance operates to create no more than an evidential burden upon an applicant and that, once that burden is satisfied, it is for the decision maker to decide whether the claimant has proved, on the evidence, a real risk of treatment in breach of Article 3. It was also submitted that the existence of systemic deficiency in asylum procedures and reception conditions can be demonstrated by evidence of treatment contrary to Article 4 of the EU Charter and that there was no particular kind of evidence necessary to demonstrate a systemic failure. These grounds were eventually vindicated before the Supreme Court in EM (Eritrea).[59]So far as the relief sought is concerned, all of the claimants sought, in effect, orders quashing and ordering reconsideration of the decisions to certify their human rights claims and ordering a stay on removal. To that extent their objectives were met by the withdrawal of the decisions by the respondent. Two of the claimants went rather further. Mr. Soulaiman sought an order quashing the third country certification, a mandatory order that the claim for asylum be considered substantively in the United Kingdom, a stay on the removal directions and a stay on any further attempted removal of the claimant pending the outcome of the application. Mr. Tayyara sought an order quashing the decision to certify the claim on third country grounds, an order quashing the decision to certify the Human Rights claims was clearly unfounded, a mandatory order requiring the Secretary of State to consider this appellant’s asylum and Human Rights applications in the United Kingdom and damages for unlawful detention.[60]This leads Mr. Payne to submit that it would have been open to the court to make declarations that, for example, the claimants had been wrongfully denied an “in-country” right of appeal and that if the court made a finding that the claims were not bound to fail, the respondent would be compelled to grant an “in-country” right of appeal. To my mind, however, this is unrealistic. The role of the court in these cases of third country certification is one of judicial review. (See Lord Phillips in ZT (Kosovo) v. SSHD [2009] UKHL 6; [2009] 1 WLR 348 at [162].) In such cases the court will not order the Secretary of State to grant an “in-country” right of appeal. While there is undoubtedly a measure of pragmatic flexibility in the court’s approach to Dublin Regulation cases which permits the court to take account of changing circumstances, this does not mean that the court becomes the decision maker. As Collins J. accepted, the most that the claimants could have achieved in these proceedings would have been an order for reconsideration. Any further mandatory order or declaration would have been refused.[61]The initial response of the respondent is typified by the Treasury Solicitor’s letter dated 7 March 2012 in the Semere Tesfay litigation (which reappears, for example, in the summary grounds of defence in the Tayyara litigation) where it was submitted that the certifications were lawful and that the claimant’s case was wholly without merit, having regard in particular to the principles established by the judgment of the CJEU in NS v. SSHD, the judgment of the Strasbourg court in MSS v. Belgium and Greece and the judgment of Kenneth Parker J. in Medhanye v. SSHD. I note that the conclusion of the Court of Appeal in EM (Eritrea) that the existence of systemic deficiencies in the asylum or reception procedures in the third state concerned was a pre-requisite to a finding of a real risk of treatment contrary to Art. 3 was not one for which the respondent had contended. Furthermore, Mr. Payne has drawn to our attention the fact that the respondent did not seek to uphold this part of the Court of Appeal’s decision before the Supreme Court. Nevertheless, as is apparent from the forceful letter dated 18 October 2012 from the Treasury Solicitor to Duncan Lewis, acting on behalf of Mr. Semere Tesfay, quoted at para 36 above, the Court of Appeal decision was, at least initially, taken up with enthusiasm by the respondent. Similar letters were sent to the other claimants. (Letters dated 23 October 2012 (Soulaiman), 18 October 2012 (Salih), 22 October (Rahma) and 18 October (Tayyara).) While it may be correct that thereafter there was a change of emphasis on the respondent’s part with the result that in the months immediately before the Supreme Court decision in EM (Eritrea) the respondent relied in preference on the admissibility decisions of the Strasbourg court, in particular Hussain v. Netherlands (27725/10, 2 April 2013) and Daytbegova v. Austria (619812, 4 June 2013), the respondent continued to rely on the decision of the Court of Appeal in EM (Eritrea) which remained a substantial obstacle to these claims.[62]It is also relevant to consider why the respondent withdrew the decisions certifying the human rights claims. The Treasury Solicitor’s letter dated 26 March 2014 in respect of Mr. Semere Tesfay’s claim, considered in detail at paragraph 43 above, stated that in light of the Supreme Court’s decision in EM and “the additional material that your client has submitted since the decision under challenge” the decisions in relation to certification of the human rights claim and the removal directions had been withdrawn. Very similar letters were sent to the other claimants. (Letters dated 24 March 2014 (Soulaiman), 24 March 2014 (Salih), 16 May 2014 (Rahma) and 17 April 2014 (Tayyara).) The letter to Mr. Tayyara referred to the substantial volumes of further documents lodged in that and in other cases.[63]On behalf of the respondent Mr. Payne submits that the withdrawal of the decisions does not amount to an acceptance that they were materially flawed. I am unable to accept this submission. The decisions were clearly withdrawn because of the decision of the Supreme Court in EM (Eritrea). The fact that what may be described as “the systemic deficiency approach” was now shown to be wrong in law made it necessary to reconsider these decisions. Whether or not that had been the basis on which the decisions had originally been taken, it had certainly been the basis on which the respondent sought to maintain those decisions after the decision of the Court of Appeal.[64]Although the letters refer to the consideration of further evidence, it is clear that this was a subsidiary factor which, in any event, did not apply in all cases. Standard forms of words were used. The decision to withdraw was essentially because of the flawed legal approach. The respondent accepted that EM (Eritrea) in the Supreme Court required a different approach on her part. She was not simply drawing a line because of new information or evidence. She had already dismissed the material which had been placed before her as legally irrelevant. There was therefore a need to consider evidence which had previously been excluded from consideration and to consider all the evidence on a proper basis. The significance of these errors of law is also apparent from the observation of the Court of Appeal in EM (Eritrea) (at [32]) that it would have quashed all the certifications in those cases but for the fact that they did not cross the threshold which it, erroneously, considered to apply.[65]Mr. Payne placed great emphasis on the fact that in each of these cases the respondent withdrew the decision certifying the claimant’s human rights claim but did not withdraw the third country certification. Accordingly the respondent’s position remained that under EU law removal was lawful. This is correct. It is also correct that some of the claimants challenged both certifications. However, it seems to me that the real substance of these proceedings was in the challenge to the human rights certification. It was unlikely that any challenge to the third country certification would succeed other than on the basis of the human rights challenge.[66]While the claimants in the cases now before us never obtained permission to apply for judicial review, other claims raising the same points did and those other claims were successful. It was a matter of timing as to which claims went forward. I note that the Supreme Court in EM (Eritrea) awarded the appellants their costs at all stages of the proceedings. The respondent’s withdrawal of the human rights certifications in the cases before us should equally be considered a success for the claimants. Indeed, in one respect these claimants achieved more: whereas in EM (Eritrea) the Supreme Court allowed the appeals and remitted the cases to the Administrative Court for determination, in the present cases the decisions on human rights certifications were withdrawn.[67]In public law litigation securing reconsideration of a decision which is challenged is usually considered a success for costs purposes. The fact that following reconsideration a decision may be taken which is against the interests of the applicant is not a reason for refusing costs on the judicial review. As Mr. Knafler put it, in a striking figure of speech, the applicant faced with a new decision against him may thereafter “stick or twist”. The applicant may accept that he cannot challenge the new decision and simply seek his costs of the judicial review. Alternatively, he may challenge the new decision. The fact that he follows the latter course should not normally affect the costs of securing the reconsideration.[68]In my view, the withdrawal of the human rights certifications which occurred in the present cases should equally be regarded as a success for costs purposes. Considering the matter in the round, the claimants were vindicated in the proceedings in the following respects: their position on legal issues was accepted by the Supreme Court in EM (Eritrea), they obtained repeated stays on removal and the certifications of their human rights claims were withdrawn. Applying the approach laid down by this court in M v. Croydon, they should be awarded their costs in the absence of a good reason to the contrary.

Is there a good reason for departing from the default position in M v. Croydon?

[69]A substantial part of hearing before us was devoted to considering whether there was a good reason for denying the claimants their costs. The submissions may conveniently be considered under the following headings. (1) Non-compliance with the pre-action protocol.[70]The authorities accept that where there has been a failure to comply with the pre-action protocol this may be a reason for refusing a successful party his costs following a compromise. In cases where there has not been compliance with the protocol the dispute might have been settled without the need to incur the costs of proceedings. In the present cases, however, there was no possibility of compliance with the pre-action protocol. First, in each case the removal directions set a date for removal approximately ten days later. Secondly, the respondent’s policy was not to defer removal unless judicial review proceedings had been issued. Thirdly, it was the respondent’s policy to litigate all third country cases relating to Italy. Mr. Payne, quite correctly, did not seek to persuade us to the contrary and accepted that there was no scope for the protocol to provide an opportunity to settle before proceedings commenced. As Mr. Knafler submitted, the appropriate question here is not whether there was compliance with the protocol but whether the proceedings were properly issued. They undoubtedly were for the reasons stated above. (2) The extent to which the respondent relied upon a test requiring systemic failure[71]Mr. Payne submits that the respondent’s approach to the certification prior to the Court of Appeal decision in EM (Eritrea), i.e. at the time that the human rights claims of these claimants were certified, proceeded on the basis of the judgment of Kenneth Parker J. in Medhanye which Lord Kerr in the Supreme Court in EM (Eritrea) considered was broadly correct. There was, he submits, nothing to suggest that this category of decisions was unlawful. Moreover, once the Court of Appeal delivered its decision in EM (Eritrea) the Court of Appeal’s approach was binding on the parties and on the Administrative Court. Accordingly, during the period preceding the Supreme Court’s judgment in EM (Eritrea) the claimants had no expectation of success. In a linked submission Mr. Payne submits that the vast majority of the respondent’s submissions either did not rely at all on the Court of Appeal’s approach or proceeded in reliance on the subsequent approach adopted by the European Court of Human Rights in numerous admissibility decisions.[72]The view expressed by Lord Kerr in EM (Eritrea) (at [66]) of the judgment of Kenneth Parker J. in Medhanye was that his approach differed from that of the Court of Appeal in that it did not appear to suggest that it needed to be shown that there were inherent deficiencies in the system, merely that there were substantial operational problems, a view which Lord Kerr considered approximated (at least) to the true import of the decision in NS. However, for two reasons he did not consider that the judgment of Kenneth Parker J. should be allowed to stand. First, the Court of Appeal took a different view from him of the effect of the evidence. Secondly, there was an issue as to whether his approach accorded precisely with that in Soering v. United Kingdom 11 EHRR 439.[73]In any event, in my view, this does not amount to a good reason to deny the claimants their costs of the proceedings. Whatever may have been the respondent’s initial approach to the certification of the claimants’ human rights claims, at a later stage she continued to resist them by enthusiastically adopting the approach of the Court of Appeal in EM (Eritrea), an approach which was eventually shown to be legally flawed. That is readily apparent from the terms of the Treasury Solicitor’s letter of dated 18 October 2012 in the Semere Tesfay proceedings and its counterparts in the other proceedings. Moreover, while the respondent subsequently relied on the recent jurisprudence of the Strasbourg court she did so in the alternative to her reliance on EM (Eritrea) in the Court of Appeal and did not disavow the ratio of the Court of Appeal decision. This is apparent from the Treasury Solicitor’s letter dated 31 July 2013 in the Semere Tesfay proceedings. Indeed, that letter states that “EM remains good law and is the most recent and authoritative judgment relating to returns to Italy under the Dublin II Regulation”. [252] What is much more significant, to my mind, however, is the basis on which the respondent withdrew the human rights certifications. For the reasons set out earlier in this judgment I consider that she did so because it was apparent that the decisions had been taken on a basis which was flawed in law and that it was necessary to do so.[74]It also occurs to me that there is an inconsistency within Mr. Payne’s approach to the question as to who should bear the costs of these proceedings. While at various points he invites the court to undertake an exercise in forensic archaeology involving an examination of the precise positions taken by the respondent at different stages of the proceedings, at other points he seeks to avoid that course when it does not assist the respondent, for example following the decision of the Court of Appeal in EM (Eritrea).[75]It is, of course, correct that it was open to the respondent to rely on the decision of the Court of Appeal in EM (Eritrea) while that decision was understood to represent the law. Here, the respondent is able to point to the observation of Lord Neuberger in M v. Croydon (at [56]) that it may seem rather harsh to visit defendants with liability for all the claimant’s costs, because they assumed the law was as the Court of Appeal had decided until the Supreme Court took a different view. However, he went on to say that in such a case, while the defendants have a real argument for saying that they should not pay all the claimant’s costs, the claimant can nevertheless raise all the normal reasons for receiving his costs. (See also Lord Neuberger at [69] and Stanley Burnton LJ at [78].) In the present cases the respondent did not have to espouse EM (Eritrea) in the Court of Appeal. The ratio of that decision was a result for which she had not contended and which she disavowed before the Supreme Court. Nevertheless, she relied on it in response to these claims and it was demonstrated, eventually, to be wrong in law. (3) The particular nature of this litigation[76]On behalf of the respondent it was submitted that the general approach identified in M v. Croydon should not be applied in the cases before us because of certain particular features of the litigation with which we are concerned. Mr. Payne drew attention to the frequently changing positions of the parties - referred to at the hearing before us as an “evolving” or “rolling” judicial review - which can occur where there are external factual developments and where the parties amend their positions in order to take account of them. Public law claims in relation to third country cases under the Dublin Regulation are particularly prone to this as more evidence becomes available as to conditions in the third country concerned.[77]Mr. Payne drew our attention to the manner in which such litigation is generally conducted. In such cases the practice has developed whereby, rather than withdrawing a decision after each development, the Secretary of State simply issues a new decision which responds to the new evidence relied on by the claimant. The judicial review then continues on the basis of the claimant’s response to the Secretary of State’s new position. Furthermore, he explained that on a judicial review of a decision to certify a human rights claim in a third country case the court will decide whether the claim is bound to fail on its assessment at the time of the substantive hearing in the judicial review. The court does not consider historical decisions but will focus on the most recent decision letter. As a result, he submitted, the reasoning of the decision letter will hardly ever feature in the court’s judgment and the court determines for itself whether the human rights claim is bound to fail in its view. Thus, he submitted, if the present cases had proceeded to a substantive hearing there would have been no consideration as to whether the original certificates were lawful on the facts as they existed in 2012, nor whether subsequent decisions issued in 2012 or 2013 were lawful. He drew attention to the submission on behalf of the claimants that, had a new decision been issued in the course of the proceedings, this would not have affected the respondent’s liability for costs of earlier decisions that were found to be unlawful. He points out that this would have required the claimants to maintain their challenge to the earlier decisions to certify their cases and to establish that they were materially flawed. This approach, he submits, is simply not adopted in litigation of this nature where the entire focus at the substantive hearing is on whether the most recent decision to maintain the certificates is unlawful.[78]Rolling or evolving judicial review of this kind does, in my view, give rise to difficulties both in principle and in practice. In R (A) v. Chief Constable of Kent [2013] EWCA Civ 1706 Beatson LJ observed that the impact of the reviewing court scrutinising post-decision material is likely to be particularly significant in contexts in which there will frequently be a change of circumstances or in the evidence available between the time of the original decision and the time the matter comes before the reviewing court. Sometimes, in an immigration context for example, the Secretary of State will not object to the court considering further evidence, which was not before the Secretary of State. Here the court may be willing to adopt a flexible approach which will enable it to do justice. However, there are dangers in a court becoming too entangled in post-decision material and the legality of later decisions. “Moreover, in a sense, the court can be said to step outside its primary role. It will not only be adjudicating on the dispute between the parties as to the legality of the original decision made. It will become part of a rolling administrative decision–making process, in which a decision by the Secretary of State is followed by challenge, which is followed by new material which in turn is followed by a further decision, with the possible interposition of the court at any or all of these stages. Such “rolling judicial review” appears unprincipled. It is also liable to lead to confusion and to sideline the administrative process laid down by the legislature.” (at [83])[79]A similar point was made by Ouseley J. at a case management conference in Bushara v. Secretary of State for the Home Department, a third country case,on 21 February 2014, two days after judgment was delivered by the Supreme Court in EM (Eritrea). He observed that in such circumstances it was intellectually incoherent to decide a point in the absence of a further decision and that, if there were a further decision, that should be the subject of the challenge. He also drew attention to the practical difficulties of such an approach. In his view, maintaining actions on foot as a means of bringing challenges to subsequent decisions made the case physically and intellectually unwieldy and difficult to grasp. He also expressed the view that, if the Secretary of State was going to issue a fresh decision, it was his preference that the original decision be withdrawn and proceedings effectively start again. [6][80]These considerations clearly influenced the respondent and her advisers because, as we have seen, the letters from the Treasury Solicitor notifying the claimants of the withdrawal of the decisions to certify their human rights claims advised the claimants that the position taken by the respondent was consistent with the recent Court of Appeal decision in R(A) v. Chief Constable of Kent and the observations of Ouseley J. in Bushara. The letter in the Semere Tesfay proceedings, which was very similar to the other, continued:
“In R (A) the Court of Appeal held that when assessing whether the disclosure by the police in an enhanced criminal records certificate of allegations made against a nurse of neglect and ill-treatment was unlawful and in breach of Article 8 of the ECJR, a judge had been wrong to take account of fresh material that had not been available when the certificate was compiled because that sidelined the decision-maker and truncated the regulatory process. She should have remitted the case or encouraged the individual to submit a fresh application for a new certificate. Similarly, in the hearing in B v. SSHD, Mr Justice Ouseley made clear that in challenges to the certification of human rights claims on third country grounds the lawfulness of a decision cannot be challenged be reference to subsequent documents that were not before the decision maker at the time. He criticised the practice that had developed whereby Claimants submitted additional material whilst judicial proceedings were ongoing which triggered further decisions by the Secretary of State which were then challenged by way of amendments to the existing proceedings. He expressed the view that greater procedural rigour ought to be applied to judicial reviews with public law decisions being challenged on the basis of the material that was before the decision maker at the time the decision wat ken. Those views echo the comments made by Mr Justice Ouseley in the earlier case of R (Rathakrishnan) v. SSHD [2011] EWHC 1406 (Admin).”
[81]Against this background, Mr Payne submits that M v. Croydon simply does not cater for such a situation. In particular, he submits that it was open to the respondent to issue a new decision in the proceedings without withdrawing the original decision and that the proceedings could then have continued on the basis of the new decision. He points to the fact that that in fact occurred in the cases which went forward and which were reported as Tabrizagh and others v. SSHD [2014] EWHC 2281 (Admin). (The reason for this different course, we were told, was that the Secretary of State was anxious to be able to bring forward certain test cases as soon as possible after the decision of the Supreme Court in EM (Eritrea).) It is submitted that in all of the cases affected by that decision the respondent could have stood her ground and invited the court to deal with a new decision taken in the course of the proceedings. In those circumstances, it is said, the respondent would not have been exposed to a liability as to costs. It is submitted that she should not be penalised for taking the decision to review her decision outside the proceedings as opposed to inside the proceedings.[82]In Bashara Ouseley J. was concerned that the proceedings should proceed by reference to a decision of the decision maker which had been taken in the light of the most up to date information and that the matter should be presented to the court uncluttered by the earlier competing contentions. Where circumstances had changed since the original decision, he expressed a general preference for the withdrawal of the decision and the taking of a new decision which might then be the subject of a new challenge as opposed to the taking of a new decision within the existing proceedings. I consider that the former was the preferable course in the present cases which were concerned not with new evidence demonstrating changes in third country conditions but with a definitive ruling that the respondent had been proceeding on an erroneous legal basis.[83]In the event, the respondent chose, save in a small number of cases, to withdraw the decisions certifying the human rights claims and to issue new decisions. In doing so she acknowledged the error which had occurred and drew a line under the proceedings up to that point. By that time the decision of this court in M v. Croydon was well established and the potential liability in costs would have been apparent. It was not open to the respondent to proceed as if Boxall remained the governing principle. Moreover, had the respondent taken new decisions within the existing proceedings the claimants would, in my view, have had a strong argument that the respondent should be liable for the costs incurred while the respondent was proceeding on an erroneous legal basis. (4) The respondent would ultimately have succeeded[84]Finally, in this regard, Mr. Payne submits that the respondent would ultimately have been successful and that this is demonstrated by the judgment of Laing J. in R (Tabrizagh) v. Secretary of State for the Home Department [2014] EWHC 1914 (Admin) and that of Lewis J. in R (MS) v. Secretary of State for the Home Department [2015] EWHC 1095 (Admin). This question of ultimate success has been addressed earlier in this judgment. For the reasons set out at paragraphs 57 to 68 above, I consider that the claimants should be regarded as having succeeded in these proceedings. Ground 2(a): In any event, the reasoning justifying the award of the costs of issuing the judicial review proceedings also applied to the costs of continuing the proceedings.[85]For reasons set out later in this judgment, I consider that the judge was correct in awarding the claimants the costs of issuing the judicial review proceedings. They had no alternative but to commence proceedings in order to obtain stays against removal. I accept the submission on behalf of the claimants that this reasoning applies equally to the costs incurred in maintaining the proceedings thereafter. These claimants repeatedly asked the respondent to agree to stays on their removal and of the judicial review proceedings, pending the conclusion of the test case litigation. However, the respondent consistently refused, thereby necessitating the further steps in the litigation. Ground 2(b): In any event, the judge erred in law because even if he was correct to ask whether the appellants would have secured orders quashing the certification of their human rights claims, he was wrong to conclude that they would not have succeeded.[86]For reasons given earlier in this judgment I consider that, had the respondent not withdrawn the decisions certifying the human rights claims, the court would have quashed the decisions and remitted them to the respondent for reconsideration. The respondent had been proceeding on a basis which was shown by the Supreme Court in EM (Eritrea) to be erroneous in law.

Conclusion on the appeals and the applications of Soulaiman and Salih

[87]For these reasons I would allow the appeals of Mr. Semere Tesfay, Mr. Rahma and Mr. Tayyara and would allow the applications by Mr. Soulaiman and Mr. Salih. In each case the respondent should pay the costs of the judicial reviews up to the withdrawal of the decision certifying the human rights claim. The respondent’s notice: cross application for permission to appeal out of time.[88]By a respondent’s notice dated 29 April 2015 the respondent sought to appeal against that part of the order of Collins J. ordering that the respondent pay the costs of the appellants in preparing and lodging their claims for judicial review.[89]The respondent’s notice should have been lodged on 16 February 2015 and was substantially out of time. On 27 February the respondent wrote to the court, confirming her intention to serve a respondent’s notice but advising that it would not be possible at that time “due to the recent linking of the cases, the fact that some of the papers have only recently been served, and the fact that, having recently returned from annual leave, counsel has not yet had a chance to review all the bundles and provide advice on the appeal”. Thereafter, a fire at Holborn on 2 April 2015 resulted in the closure of the Treasury Solicitor’s offices for two weeks.[90]I do not consider that any satisfactory explanation has been provided for the serious delay. The linking of cases had no bearing on the lodging of a respondent’s notice in the appeal against the order of Collins J. in the cases of Semere Tesfay, Rahma and Tayyara. The Treasury Solicitor’s Department was undoubtedly severely disrupted following the Holborn fire. However, at the date of the fire the respondent’s notice was already over six weeks out of time. I would not grant an extension of time.[91]I note moreover that, on more than one occasion in recent months, this court has had reason to comment adversely about the relaxed approach adopted by this respondent to time limits set by the Civil Procedure Rules, otherwise than in the context of delays caused by the Holborn fire: see R (Sabir) v Secretary of State for the Home Department [2015] EWCA Civ 1173 at [28]; R (Idira) v Secretary of State for the Home Department [2015] EWCA Civ 1187 at [68]-[84] and [92] and Secretary of State for the Home Department v Begum [2016] EWCA Civ 122.All litigants are required to comply with these time limits and there is no exception for government departments, except to the limited extent explained by Moore-Bick LJ in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 at [41]-[42]. The usual consequences of failing to comply with time limits will continue to follow in cases of this type.[92]In any event, I would not have allowed the proposed cross-appeal. Because of the policies followed by the respondent, the appellants had to issue proceedings for judicial review if they were to obtain a stay on removal. Moreover, as explained above, I consider that the appellants were vindicated in the proceedings.

The Malta applicants

[93]There are before the court applications by Mesfin Brahane, Yonase Tesfaye, Gadisa Ararso and Teklehaymanot Kiflemariam (“the Malta applicants”) in respect of costs.[94]The Malta applicants are foreign national asylum seekers who first claimed asylum in Malta and who in these proceedings sought to challenge decisions by the respondent made in 2012 to transfer them to Malta under the Dublin Regulation and to certify as clearly unfounded their Human Rights claims relating to the risk of harm in Malta.[95]Their claims for judicial review were dismissed by Mitting J. on 1 February 2013 (R (MB and others) v SSHD [2013] EWHC 123). Mitting J. refused permission to appeal. An application to the Court of Appeal for permission to appeal was subsequently refused on the papers by Beatson LJ on 12 July 2013. On a renewed application, on 4 December 2014 Aitkens LJ ordered that the application for permission to appeal be adjourned to a rolled up hearing before the full court. By letter dated 30 May 2014 the Treasury Solicitor informed Duncan Lewis, acting on behalf of these applicants, that the respondent had withdrawn her certification of the human rights claims of these applicants. A consent order left the question of costs unresolved. That issue has now been referred to the full court for decision.[96]At the hearing Mr. Southey, on behalf of the Malta applicants, accepted that the case of Yonase Tesfaye should be taken as typical of each of the cases in this group. As a result we have not been taken to any of the other cases.

The course of the Yonase Tesfaye proceedings

[97]On 18 October 2011 Yonase Tesfaye issued an application for permission to apply for judicial review of the respondent’s decision to certify his asylum application on third country grounds and to remove him to Malta. The relief sought included an order quashing the decision to certify his asylum claim on third country grounds and a stay on his removal pending the final determination of NS which was currently before the CJEU.[98]The respondent filed her acknowledgement of service on 7 November 2011. On 5 January 2012 Mr. Stephen Males QC sitting as a Deputy Judge of the High Court refused permission on the papers. On 14 March 2012 Mr. Yonase Tesfaye’s human rights claim was certified as clearly unfounded. On 21 March 2012 Mr. Stuart Catchpole QC, sitting as a Deputy Judge of the High Court, granted permission at an oral hearing. On 28 December 2012 Mr. Yonase Tesfaye’s lawyers lodged amended grounds.[99]On 1 February 2013 Mitting J. dismissed the application for Judicial Review.(1) The judge rejected the denials by the applicants that they had claimed asylum or had had their claims refused or appeals dismissed in Malta. He was satisfied that all four claimants had made asylum claims on arrival in Malta and that they had been rejected at first instance and on appeal.(2) Accordingly, the claimants were not asylum seekers but were failed asylum seekers. Neither the United Kingdom nor Malta owed to them any duty imposed by EU legislation further to consider their asylum claims and, on return to Malta, they would not be entitled to benefit from the Reception Directive.(3) The judge referred to the contention on behalf of the claimants that to remove them to Malta would expose them to inhuman and degrading treatment and/or to unlawful detention contrary to Articles 3 and 5 ECHR. “They contend that the SSHD was not entitled to certify their claims as clearly unfounded and that, applying my own judgment to their prospects of success in an appeal to First-tier Tribunal, I should conclude that their claim is not so clearly without substance that an appeal is bound to fail.” (at [23]) The Judge noted that in principle this raised the question addressed by the Strasbourg Court in KRS v UK [2008] ECHR 1781 and in MSS v Belgium & Greece [2001] ECHR 108 and by the Luxembourg Court in NS v SSHD [2012] 3 WLR 1374.(4) However, he considered that in practice it did not raise these issues. He held that the claim relating to the risk of potential destitution had to be determined by reference to the test of “wholly exceptional circumstances” (D v UK 30240/96; 15 October 1996). In his view the situation of these claimants was plainly not exceptional. They were all fit, young single men and they would not be prohibited from working in Malta.(5) There were no grounds, let alone substantial grounds, for believing that any of these claimants would be expelled by Malta in breach of Article 3.(6) So far as Article 5 was concerned there was no reason to believe that they would be detained administratively and, if they were, their detention before trial and imprisonment after conviction would be lawful under Article 5.1(a) or (c). There would be no risk, let alone a real risk, of unlawful detention.(7) For these reasons both the third country certificates and the human rights certificates were lawfully made and there was nothing to prevent the removal of any of the claimants to Malta.[100]Mitting J. having refused permission to appeal, on the 22 February 2013 the claimants lodged notices of appeal at the Court of Appeal. The original grounds of appeal sought to challenge the decision of Mitting J. on the grounds that he refused to adjourn the case to permit the parties to respond to the Secretary of State’s late evidence, that he refused to make a reference to the CJEU and that he failed to adopt the correct approach under Article 3 ECHR. No reference was made to Article 18 of the EU Charter nor was any complaint made concerning the asylum determination process in Malta. However on 19 June 2013 the grounds were amended by the addition of the following ground:
“The learned judge erred in failing to address the appellants’ submissions that their right to asylum had been severely compromised in Malta, such that it was unlawful to return from there.”
[101]On 12 July 2013 Beatson LJ refused permission to appeal on the papers. The renewed application came before Aikens LJ on 4 December 2014. In his judgment Aikens LJ explained that the applicants now wished to raise in the Court of Appeal an argument that Article 18 of the EU Charter grants rights in relation to refugee status and asylum which are fundamental and which are wider or deeper than those that are granted by ECHR. The judge noted the acceptance by Mr. Southey that there had been no express argument before Mitting J. based on Article 18 of the Charter. Mr. Southey had said that this was originally part of the grounds and that the reason it was not dealt with by Mitting J. was that he considered that the applicants to be failed asylum seekers. The application for permission to appeal had been opposed by Mr. Payne on the basis that if this argument was to be developed at all it should be by way of a new approach to the Secretary of State for a decision by her which could then be reviewed if appropriate. The judge concluded that these were all issues which needed to be fully argued before the court. However, he was not prepared to grant permission to appeal because “I am particularly concerned with the frank admission by Mr. Southey that what is now regarded as an important plank of the proposed appeal was not something that was specifically raised before the judge.” (at [7]) Accordingly he referred the issue of permission to appeal to the full court with a direction that, if granted, the appeal be heard at the same time.[102]The rolled up hearing was listed to be heard on 17/18 June 2014. However, on 30 May 2014 the Treasury Solicitor wrote to Duncan Lewis stating “This is one of a large number of claims challenging Third Country action on the grounds of an alleged risk of a breach of Article 3 ECHR on return to the receiving State. As you will be aware, substantial volumes of additional material have been filed in this and other cases, including most recently in the first cases which are listed for a substantive hearing in May. In order to adopt a consistent approach regarding the general issues being raised in such cases, the Secretary of State has decided to review all Human Rights decisions and will issue new decisions in response to individuals’ Human Rights claims. My client has now therefore withdrawn her decisions in relation to your clients’ Human Rights claims. My client will now consider the material submitted in support of your clients’ Human Rights claims (including the material submitted in the course of these proceedings) in light of the Supreme Court’s decision in EM (Eritrea) & Ors v SSHD [2014] UKSC 12, and will issue new decisions in due course. Should your clients wish to rely on any further material in support of their Human Rights claims, they are invited to submit any such material within 21 days of signature of the attached consent order. My clients would not consider any material submitted after that date in her consideration of your clients’ Human Rights claims. The application for permission to appeal to the Court of Appeal is now therefore academic and you are invited to withdraw these proceedings on the terms set out in the attached consent order.” The letter went on to state that the position was consistent with the recent decision of the Court of Appeal in R(A) v Chief Constable of Kent and the observations of Ouseley J. in B v SSHD.[103]Thereafter the parties agreed a consent order which left the issue on costs to be determined by this Court. The statement of reasons accompanying that order stated “(b) The appellants appealed against the judgment of Mitting J. In doing so the appellants continued to rely on the failings of the Maltese asylum determination system and submitted that “while it is acknowledged that there was no express reliance upon Article 18 below, it is submitted that there is nothing objectionable in seeking to rely on additional sources of law to advance an argument that has always formed part of the appellants’ claim” (para 44 appellants’ Skeleton). The respondent has always understood it to be common ground that the appellants were relying on new legal arguments that had not been raised before Mitting J. The respondent does not accept the appellants’ attempt to distinguish between new legal arguments and “additional sources of law”.” It referred to the letter of 30 May 2014 and continued “(e) By reason of this decision these appeals are virtually academic. …. It is hoped, however, that the consent order amounts to a suitable compromise whereby this Court is not burdened further with these appeals, while the respondent carries out her reconsideration…”

The submissions of the applicants

[104]On behalf of the applicants it is submitted that by their claims they sought to quash the respondent’s decision certifying the human rights claims as clearly unfounded. Those challenges were successful in that the withdrawal of her decisions by the respondent amounted to all that the applicants had sought to achieve in the proceedings.[105]Mr. Southey submits that it was the decision of the Supreme Court in EM (Eritrea) which brought about the withdrawal of the certifications.(1) He submits that no significant new material had been adduced since the hearing before Mitting J. in January 2013 and that, accordingly, the reasoning in the letter of 13 May 2014 which refers to further material can have no application in these cases.(2) He submits that the withdrawal of the certification necessarily accepted that Mitting J. had been wrong in concluding that no duty was owed to the applicants.(3) He submits that EM (Eritrea) in the Court of Appeal was at the heart of Mitting J’s judgment.(4) He draws attention to the fact that following the consent order the respondent re-certified Mr. Yonase Tesfaye’shuman rights claim stating that the Article 3 claim had been reconsidered in the light of the judgment of the Supreme Court in EM (Eritrea).[106]The applicants take issue with the respondent’s submission that they should not recover their costs in the light of the fact that they sought to rely on arguments not presented to Mitting J. below. First they submit that this is irrelevant as the critical focus ought to be on the appellants’ success in achieving all the relief they sought. Secondly, in any event, they dispute the factual basis of this submission. They submit that while the specific reliance on the EU Charter was not pursued below, the broad submissions concerning the flawed Maltese asylum procedures were the “central plank” of the case before Mitting J., notwithstanding that the judge failed to address them.

The submissions of the respondent

[107]On behalf of the respondent it is submitted that the applicants have not obtained the principal remedy they sought and continued to seek, namely a finding by the court that their challenge to their removal to Malta is not bound to fail before the First-tier Tribunal. Here they point to the applicants’ invitation to Mitting J. to decide for himself that their human rights claims were not bound to fail before the First-tier Tribunal. Furthermore, the court had substantively considered all the arguments advanced at first instance and had unequivocally rejected them. Permission to appeal this judgment had not been granted. The only reason that the application for permission to appeal was adjourned to a “rolled up hearing” was to consider whether the applicants should be permitted to rely on a new legal argument.[108]Secondly it is submitted that there was no acceptance of error by the respondent. It is said that the substance of the applicants’ judicial review claim, as originally formulated, was causatively immaterial to the withdrawal of the earlier decisions.[109]Thirdly it is submitted that the applicants do not deny that they were seeking to rely on new legal arguments on appeal; they merely denied that there was any need to consider new material. However the respondents submits that these assertions are misconceived because the applicants were now relying on facts that they had previously denied, namely that they were failed asylum seekers. In addition they were relying on significant additional evidence concerning the situation in Malta. The need to consider new evidence arose because they had introduced a new legal argument. The new challenge based on Article 18 as to whether asylum procedures complied with the EU Directives required consideration of different factual matters and current information relating to procedures in Malta. Finally, in this regard, it is submitted that the applicants should not be permitted to circumvent the pre-action protocol by making new claims during proceedings and thereafter securing costs of the earlier proceedings if they are brought to an end in order for the new claims to be considered. It is submitted that, applying the rationale in M v Croydon, there is no reason why the respondent should be liable for the costs of the applicants’ proceedings where a decision is taken to consider facts and legal arguments raised for the first time during an appeal against an adverse judgment. The respondent is compelled to investigate these new matters and should not be denied the opportunity to do this prior to proceedings being issued.

Discussion

[110]It is convenient to begin by considering to what extent the applicants were seeking to advance a new claim before the Court of Appeal. So far as the proceedings in the Administrative Court are concerned, Mr. Southey has been able to point to some references which provide some support for the view that the claims included allegations of failings in the asylum determination process. Thus, for example, the applicant’s amended grounds dated 28 December 2012 complained that the lack of an effective remedy to challenge negative decisions inevitably places individuals at risk of refoulement owing to inadequate consideration of their claims. However, I am unable to accept that this was “a key aspect” or “a main plank” of the case before Mitting J., or indeed anything other than a peripheral consideration. This issue is not addressed in the judgment of Mitting J. Had it been of central importance I would expect the failure to have been relied on in the grounds of appeal. However, it did not feature in the original grounds of 22 February 2013 and when the grounds were amended on 18 June 2013 it was simply to assert that the judge failed to address the applicants’ submissions that their right to asylum in Malta had been severely compromised such that it was unlawful to return them there. Moreover, it is apparent from the concession of Mr. Southey recorded by Aikens LJ on 4 December 2013 that what had come to be regarded as a main plank of the proposed appeal was not something that had been specifically argued before the judge. Moreover, it has been accepted that Article 18 of the EU Charter, the legal basis on which the point is now put, was not referred to before Mitting J. In my view, it is clear that the applicants were seeking to advance a new claim before the Court of Appeal.[111]Another important consideration to my mind is the significance to these proceedings of the decision of the Supreme Court in EM (Eritrea). First, although the Court of Appeal decision is referred to by Mitting J. in his judgment (at [28]) he makes clear that while that decision would require him to dismiss the claims under EU law of any of the claimants who had an outstanding asylum claim in Malta, none of the applicants got that far. The Supreme Court decision cannot, therefore, be regarded as invalidating any of the reasoning by which Mitting J. reached his conclusions. Secondly, although the letter dated 30 May 2014 withdrawing the certification refers to the decision of the Supreme Court in EM (Eritrea), the respondent cannot be considered to have taken that course because the legal basis of the decisions taken was shown to have been erroneous. Here, the situation was very different from that of the Italy applicants. Rather, the respondent was faced with a situation in which an attempt was being made to put the claim on a new legal and factual basis and it was considered appropriate to withdraw the decisions in order to take stock. No doubt the decision of the Supreme Court would have played a part in the decision to withdraw because any new decision would have to be made in the light of the law as now declared in the Supreme Court to the extent that it might be relevant. However this was not a situation in which the reasoning of the Supreme Court had undermined the previous administrative or judicial decisions.[112]It can be said that, in one sense, these applicants were successful in their proceedings. They brought a challenge to the certification of their human rights claims and those certifications were withdrawn. While it is right to point out that they sought to persuade Mitting J. that he should conclude that their human rights claims were not so clearly without substance that an appeal was bound to fail and that the respondent was not entitled to certify their claims, there was never any realistic prospect that the court would do more than quash the decisions and order reconsideration by the respondent. To this extent, therefore, the position of the Malta applicants can be compared with that of the Italy applicants.[113]However, there the similarity ends. The Italy applicants had raised at the outset arguments of law which were opposed by the respondent and which were eventually upheld by the Supreme Court in EM (Eritrea). This established that their cases had been considered on a flawed legal basis and that it was necessary that they be reconsidered. By contrast, at the date of the withdrawal of the certifications in the Malta cases, the applicants’ case had been comprehensively rejected at first instance and the Court of Appeal had refused leave to appeal against those decisions. The only point remaining to them was whether they should be permitted to appeal on a new legal basis which had not been relied on below. When the withdrawal of the human rights certification in the Malta cases is viewed in the context of the proceedings as a whole, the degree of success achieved was distinctly limited.[114]Approaching the issue of costs on the basis of M v. Croydon I consider, therefore, that the withdrawal of the human rights certifications represented only a very limited success on the part of the Malta applicants. In any event, I consider that there are here strong reasons which justify a denial of the applicants’ claim for costs. First, the Malta applicants had given false accounts to the respondent and to the Administrative Court. Secondly, neither EM (Eritrea) in the Supreme Court nor the withdrawal of the human rights certifications casts any doubt on the correctness of the decision of Mitting J. Thirdly, by the time the certifications were withdrawn the applicants were reduced to seeking to take a new point which they had not taken below and which they had yet to establish was open to them. For all these reasons I consider that the appropriate order in the Malta applications is that there be no order as to costs.

LORD JUSTICE McCOMBE :

[115]I agree.

LORD JUSTICE BEATSON :

[116]I also agree.

Cited in 26 later judgments

and 17 more of the most senior