Khan, R (on the application of) v Secretary of State for the Home Department [2026] EWCA Civ 997

[2026] EWCA Civ 997
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
(UPPER TRIBUNAL JUDGE HOFFMAN)
Venue The Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 8 July 2026
Before
LORD JUSTICE EDISVice-President of the Court of Appeal Criminal DivisionLADY JUSTICE KINGLORD JUSTICE DINGEMANS(Senior President of Tribunals)
Between
on the application of KHANApplicantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentTranscript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400 Email: civil@epiqglobal.co.uk (Official Shorthand Writers to the Court)This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.Jay Gajjar and Mr Ahmad Badar appeared for ApplicantMR BROWN appeared for RespondentJudgment(Approved)

Crown Copyright©

[1]This is a costs appeal in judicial review proceedings. The proceedings were compromised after the respondent Secretary of State for the Home Department (the Secretary of State) made a further decision on the appellant Mr Khan’s application for entry clearance, leaving it to Upper Tribunal to make a decision on costs. By a written ruling dated 9 July 2025 Upper Tribunal Judge Hoffmann (the judge) made no order as to costs.[2]Mr Khan was granted permission to appeal by order of Elizabeth Laing LJ by order dated 20 November 20205 because of the overlap with two costs appeals which had been heard together by the Court of Appeal, being R(Nisar and others) v Secretary of State for the Home Department; R(Mammedov) v Secretary of State for the Home Department (R(Nisar)). Those appeals had been heard on 28 October and judgement was given on 16 December 2025, now reported as [2025] EWCA Civ 1646; [2026] 4 WLR 2.[3]Mr Khan is a national of Pakistan. He wanted to visit the United Kingdom as a visitor. On 30 October 2024 he applied for entry clearance. The application was refused by the Secretary of State on 28 November 2024.[4]Mr Khan did not consider that there was any proper basis for the refusal, and a pre-action protocol letter dated 5 December 2024 was sent to the Secretary of State threatening proceedings for judicial review. By letter dated 19 December 2024 the Secretary of State agreed to withdraw the decision dated 28 November 2024 refusing Mr Khan entry clearance, and said that the Secretary of State would now proceed to reconsider the matter in the light of the evidence and representations made saying “The Entry Clearance team aims to reconsider this case within 3 months, absent special circumstances”. No further decision was made, and by email dated 13 March 2025 Mr Khan’s legal representatives informed the Secretary of State that they were expecting a decision by 19 March 2025 (three months after the date of the Secretary of State’s letter), failing which they would issue proceedings and seek costs. No reply was sent within the three month period.[5]It is apparent from internal communications which were obtained by Mr Khan's legal representatives under a subject access request that, by internal email dated 18 March 2025, a Home Office worker emailed another Home Office worker saying "Please can you help me with this PAP … Representatives are chasing a recon response for the above case, the deadline for recon is tomorrow". It is also apparent that on 21 March 2025, there was another internal communication saying "We have missed three month deadline".[6]On 20 March 2025 proceedings for judicial review were commenced. The Secretary of State then made a decision on 23 April 2025 (a month and four days after it had originally been promised). The judicial review proceedings were withdrawn and the issue of costs left to be determined by the judge on papers. The costs judgment below[7]The judge set out the relevant facts noting that the key dispute between the parties was whether Mr Khan had complied with the pre-action protocol before commencing the claim. The Secretary of State accepted that she had failed to do anything before the proceedings were commenced, but submitted that a further pre-action protocol letter was required before the proceedings for judicial review were commenced, but this was disputed on behalf of Mr Khan, who pointed to the letter dated 5 December 2024 and the chasing email dated 13 March 2025.[8]The judge was referred to various orders made in other costs appeals, but considered that they were of little assistance. The judge stated:
“the applicant’s pre-action letter dated 5 December 2024 did not seek to challenge a delay in processing his visa application. Instead, the pre-action letter challenged the refusal of his application. In contrast, the judicial review claim form challenges the respondent’s purported unlawful delay in making a new decision on that application. Therefore, the pre-action letter of 5 December 2024 did not foreshadow the basis of the judicial review claim”
. The judge said that the Secretary of State could be rightly criticised for failing to notify Mr Khan that she could not meet the three month target, but was satisfied that if Mr Khan had complied with the pre-action protocol, it is more likely that not that the matter could have been resolved without the need for litigation but “the applicant jumped the gun”.

(M) Respective cases

[9]Mr Gajjar assisted by Mr Badar on behalf of Mr Khan submitted that the judge was wrong not to give Mr Khan his costs. He had only been interested in one thing, withdrawal of the first decision and a new decision, and the Secretary of State had promised to do that in three months and had not done so, and he relied on some first instance decisions in particular cases. There were three points made by Mr Gajjar orally today, which I have reordered. First, the first pre-action protocol letter was sufficient, there was no need for a second one. Secondly in any event it was apparent from the Data Subject Action Request that the Secretary of State had treated the email dated 13 March 2025 as a pre-action protocol letter, and referred to it as such, and it was in substance a pre-action protocol letter. Thirdly, the position was not covered by the decision in R (Nisar). Although there were some similarities in terminology, the substance was different.[10]Mr Brown on behalf of the Secretary of State submitted that the judge was right to make the decision that he had, that there were differences between the first threatened action and the action subsequently brought, that Mr Khan had not complied with the pre-action protocol, and no order for costs was fair. Mr Brown further submitted that there was no material difference between this case and the second appeal (Mammedov) heard in R(Nisar) and the internal correspondence could not alter that. The issue was whether the Secretary of State had acted unlawfully in not meeting the aimed three-month time limit for the reconsideration, and it was not unlawful.[11]I am grateful to both Mr Gajjar, Mr Badar and Mr Brown. It was apparent that the real issues on the appeal are:(1) whether a pre-action protocol letter should have been served;(2) whether the email dated 13 March 2025 was a pre-action protocol letter; and(3) whether this appeal can be distinguished from R(Nisar). Relevant authorities and the decision in R(Nisar)[12]It is established that the Court of Appeal will not interfere with costs orders which have been made by judges, except in circumstances where the judge has erred in principle, left out of account relevant matters, or taken into account irrelevant matters, or where the decision was plainly wrong see Roache v News Group [1998] EMLR 161, at paragraph 172, referred to in R (Nisar) at paragraph 30.[13]Costs in judicial review proceedings which had been compromised were addressed by the Court of Appeal in R(M). It was made clear that usual principles applicable to civil proceedings, namely that a successful party who obtained all the relief he sought, whether by consent or after a hearing, was entitled to be paid costs. Where part only of the claim was successful, the position would be depend on which party was the more successful. Each case turned on its own facts so that a case might have an unusual feature which could justify departing from what would otherwise be the appropriate costs order.[14]The judgment in R(Nisar) related to the appeals of Nisar and Mammedov. Mr Nisar’s appeal was allowed, but Mr Mammedov’s appeal was dismissed. The circumstances in Mr Mammedov’s appeal were broadly similar to what happened in Mr Khan’s case. As appears from paragraph 49 of Bean LJ’s judgment “the Home Office had only written a letter saying that they would “aim to” issue a decision by the specified date. This did not create a legal obligation, even after the “chaser letter” of 16 May 2025. The delay had not reached the stage where it was so excessive as to be manifestly unreasonable, see for example Elisabeth Laing LJ in R (Ullah) v Secretary of State for the Home Department [2022] EWCA Civ 550 at [62], and delay had not been complained of prior to the letter of 16 May 2025. In those circumstances Bean LJ could not see any circumstances in which the Court of Appeal could overturn the exercise of the judge’s discretion to order no costs. This appeal[15]It is apparent that Mr Khan succeeded in obtaining the relief that he wanted to obtain, namely a fresh decision, and so in that sense might be considered the successful party. On the other hand he did not comply with the pre-action protocol before commencing the claim for judicial review. As to the first issue, the first pre-action protocol letter was not sufficient to satisfy the second claim for judicial review. It is right that a pre-action protocol letter had been sent in relation to the decision dated 28 November 2024, but that decision had been withdrawn and was a matter of history. It is also right that the Secretary of State had agreed to reconsider the matter, and had said that the Entry Clearance team aimed to reconsider the case within three months, absent special circumstances, which the Secretary of State did not do. However, as was the case in R(Nisar), Mr Khan was now challenging the failure to consider the matter within three months, and was not challenging the decision dated 28 November 2024, as in the first proposed action. Further, again as was the case in R(Nisar), the Secretary of State’s failure to make the decision in three months was not so long a delay as to be manifestly unreasonable for the purposes of making the decision unlawful.[16]As to the second issue whether the email of 13 March 2025 was a pre-action protocol letter; it was not. It is right that internal documents showed that it was referred on to a caseworker and the email dated 13 March 2025 was described as a pre-action protocol letter, albeit saying "PAP", but it did not conform to the terms of the pre-action protocol. For example, it did not explain the legal basis for the contention that it was unlawful not to give the decision by 19 March 2025. Although Mr Gajjar is right that the Secretary of State knew that she had to make a decision, that is different from identifying the legal issues in dispute. In any event, the email did not give the Secretary of State 14 days to respond and, notwithstanding the points that have been made, there was no basis on which the matter was so urgent that it needed to shorten the timescale.[17]As to the third issue and whether this situation was covered by the decision in R (Nisar), it is right now that there is more information available to us about internal communications than there was in the case of R (Nisar), but there is no material distinction between this case and the case of R (Nisar). The Secretary of State said she would aim to make a decision by 19 March, but it was not unlawful to fail to do so. It was apparent from the internal communications that there were the usual difficulties of volume of work and staffing issues, but that does not alter the need to have sent a proper pre-action protocol letter.[18]In all of these circumstances the judge was entitled to make no order as to costs, and there is certainly no basis on which this court could say that the judge's exercise of discretion to make no order as to costs was justifiably wrong. Other matters[19]This is yet another case where the Secretary of State has said that the Entry Clearance Team aimed to make a decision within three months, and has not made that decision. It is not surprising that these failures to make decisions generate unhappiness from those expecting them, and litigation.[20]The Secretary of State was rightly not given costs below, given her failures, which included the failure even to acknowledge the email dated 13 March and ask for further time. All sides might reflect on what was said in paragraph 75 of R(M), namely that there should be a greater willingness on the part of parties to judicial review proceedings to agree not only the substantive provision of the order to be made, but also the issue of costs. A successful negotiation of costs issues is likely to be cost effective, saving the parties costs of written submissions and the court the time of having to determine these issues. Conclusion[21]For the detailed reasons set out above, I would dismiss the appeal. Lady Justice King[22]I agree. Lord Justice Edis[23]I also agree. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: civil@epiqglobal.co.uk