IX, R (on the application of) v Secretary of State for the Home Department (Judicial review; costs) [2025] UKUT 154 (IAC)

[2025] UKUT 00154 (IAC)

R (on the application of IX) v Secretary of State for the Home Department (Judicial review; costs)

IN THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Venue Field House,

Hearing Hearing date: Wednesday 9 April 2025

Breams Buildings

London, EC4A 1WR

Promulgated: 23 April 2025

Before

THE HON. MR JUSTICE SWIFT

UPPER TRIBUNAL JUDGE SMITH

THE KING

on the application of

Between

IXApplicant

[ANONYMITY DIRECTION MADE]Applicant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr C Buttler KC and Mr A Bandegani

(instructed by Joint Council for Welfare of Immigrants), for the Applicant

Ms J Anderson

(instructed by the Government Legal Department) for Respondent

Date 2025-04-09

[1]The general rule (at CPR 44.2(3)) is that the unsuccessful party will be ordered to pay the costs of the successful party. Costs are said to “follow the event”, with the event being the outcome of the trial. Where proceedings have been issued but have come to an end before trial, the general rule still applies.

[2]When considering the application of the approaches referred to in the case-law it is important to have in mind that the need to decide such costs applications can arise in a range of different circumstances. The approaches set out in the case-law must be applied in ways that reflect the circumstances before the court rather than merely slavishly.

[3]In setting out his 3 categories in R (M) v Croydon LBC

[2012] 1 WLR 2607

, Lord Neuberger intended to do no more than, by reference to 3 broadly-defined classes, provide guidance on how the general rule might apply where a costs application is made in circumstances where a trial is no longer required. He did not intend anything approaching prescription or codification.

[4]There will be some cases where it is apparent from context that the action the defendant has agreed to take which is relied on as removing the need for the litigation to continue, will support or even require the conclusion that the applicant has been wholly successful. But context can be important.

[5]There is nothing in M or in any other of the authorities that requires a tribunal to take a special approach when deciding where costs should fall in situations where a claim has been compromised and, for that purpose, decline to consider relevant matters. The tribunal’s costs jurisdiction is the same regardless of whether it falls to be exercised after a contested trial or following a compromise. The overriding objective is to do justice between the parties, in accordance with the application of any relevant court rules, without incurring unnecessary court time and consequently additional cost. That does not require a tribunal to disregard information that is relevant and is available when the decision falls to be made. - - - - - - - - - - - - - - - - - - - - JUDGMENT - - - - - - - - - - - - - - - - - - - - Order Regarding Anonymity Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Applicant (IX) is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Applicant, likely to lead members of the public to identify the Applicant. Failure to comply with this order could amount to a contempt of court. 1. A: Introduction

[1]This is the judgment of the Tribunal.

[2]The Applicant’s application for judicial review was issued on 22 October 2024. The claim is directed to a letter dated 22 July 2024 sent to the Applicant by the Home Secretary. The hearing of that application has been overtaken by events that took place the afternoon before the hearing was listed to take place. Instead of determining the merits of the Applicant’s claim, it falls to us to consider instead competing applications for the costs of the proceedings made by the Applicant and by the Home Secretary. (1). The judicial review claim

[3]The Applicant is an Egyptian national. He arrived in the United Kingdom on 16 November 2022 having crossed the English Channel by small boat. On 17 November 2022 he made a claim for asylum. That claim was not, at that time, considered by the Home Secretary. At that time the Home Secretary’s policy provided for the possibility that asylum claims made by migrants who had entered the United Kingdom illegally by small boat crossing, would be declared inadmissible where the conditions set out in section 80B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) were met. In such cases, the then Home Secretary’s policy was to consider the removal of such persons to the Republic of Rwanda which, at the time, the Government considered to be a “safe third State” for the purposes of the relevant provisions in the 2002 Act (“the Rwanda policy”). The Rwanda policy relied on the powers available to the Home Secretary under Part 4A of the 2002 Act to declare asylum claims inadmissible if certain conditions were met. The overall effect of the Rwanda policy was that any asylum claim made by a person such as the Applicant would not be determined in the United Kingdom but would instead be decided in Rwanda after the person had been removed to Rwanda.

[4]The Applicant was one of a group of migrants to which the Home Secretary wished to apply the Rwanda policy. This group is often referred to as the “MEDP cohort” which is a reference to the Migration and Economic Development Partnership arrangement then in force between the United Kingdom and Rwanda.

[5]Following the general election on 4 July 2024 there was a change of government and a change of government policy. The Rwanda policy was abandoned, and the Safety of Rwanda (Asylum and Immigration) Act 2024 which had sought to entrench a conclusion that Rwanda was, for the purposes of section 80B of the 2002 Act, a “safe third State” was repealed. However, the provisions in the 2002 Act permitting asylum claims to be declared inadmissible remain in force. While the statutory provisions on inadmissibility were a premise for the Rwanda policy they existed (and continue to exist) independent of that policy. On 15 August 2024 the Home Secretary published a new version of her policy on inadmissibility, “Inadmissibility: safe third country cases” (“the Policy”) which anticipates that the power to declare asylum claims inadmissible will continue to be used in appropriate instances.

[6]So far as concerns those in the MEDP cohort (including the Applicant) the position of the Home Secretary on how their asylum claims are to be treated following the abandonment of the Rwanda policy was referred to in an Order of Collins Rice J dated 24 July 2024, made by consent, in R(AMX) v Secretary of State for the Home Department (AC-2024-LON-1355). That litigation concerned a number of those within the MEDP cohort (not including the Applicant) who had contended that the Home Secretary had acted unlawfully by taking too long to decide their asylum claims. It is clear from the recitals to that Order that the Home Secretary’s intention was that the litigants’ asylum claims would not be declared inadmissible but would be decided on their merits, in the United Kingdom. One recital to the Order made clear that the Home Secretary would offer a consent order in the same terms to all those in the MEDP cohort who had claims in either the Administrative Court or this Tribunal. A further recital addressed the position of the whole MEDP cohort, stating “AND UPON the [Home Secretary] confirming that all of the MEDP cohort will have the merits of their substantive asylum claims determined in the UK.” Thus, it was clear from the Order that the Home Secretary’s position was that asylum claims such as the one made by the Applicant would not be treated as inadmissible but would be decided on their merits in the United Kingdom.

[7]The Applicant’s challenge in this case was directed to what was said in a letter sent to him dated 22 July 2024 (“the letter”). We have been told that letters in the same terms were sent to others in the MEDP cohort. So far as material, the letter included the following “We previously issued a “Notice of Intent” letter, informing you that we were considering whether your claim for asylum in the United Kingdom should be declared inadmissible on safe third country grounds. Having reviewed the circumstances of your case, it has been decided not to pursue inadmissibility action under either paragraph 345A‑D of the Immigration Rules (as in force before 28 June 2022) or sections 80B‑C of the Nationality, Immigration and Asylum Act 2002. This means that your asylum claim will now be considered substantively in the United Kingdom and the Third Country Unit will no longer be responsible for managing your case. If circumstances change or further information becomes available to us to suggest that inadmissibility action under these or other provisions is in fact appropriate, we will notify you accordingly. We have arranged an interview for you to tell us about the reasons why you have claimed asylum in the United Kingdom. Here are the details for your interview …” [underlining added] The letter then went on to inform the Applicant that an asylum interview had been arranged for him and would take place on 2 August 2024 in Liverpool. The challenge in this case is directed to the underlined words. Here are the details for your interview …”

[underlining added]

[8]As originally pleaded, the grounds of challenge were as follows. First that the underlined words amounted to a breach of a legitimate expectation raised by the Policy (the version published on 29 April 2024, in force at the time the letter was sent) that the asylum claims of the MEDP cohort would be decided in the United Kingdom and would not be the subject of inadmissibility decisions. As pleaded, this ground relied on the part of the policy under the heading “Removal agreements and timescales”. That part of the Policy first records that an inadmissibility decision may either pre- or post-date an agreement with a safe third State to admit the person concerned. The Policy then makes the point that consideration of an inadmissibility decision must not take too long:

“There are no rigid timescales within which third countries must agree to admit a person before removal. However, the inadmissibility process must not create a lengthy ‘limbo’ position, where a pending decision or delays in removal after a decision mean that a claimant cannot advance their asylum claim either in the UK or in a safe third country. If, taking into account all the circumstances, it is not possible to make an inadmissibility decision or effect removal following an inadmissibility decision within a reasonable period, inadmissibility action must be discontinued, and the person’s claim must be admitted to the asylum process for substantive consideration. As a general guideline, it is expected that in most cases, a safe third country will agree to admit a person within 6 months of the claim being recorded, enabling removal soon after, subject to concluding legal challenges or other removal barriers.”

In his submissions at the hearing, Mr Buttler KC, leading counsel for the Applicant, refined the way in which the submission relying on the Policy was put (both so far as concerns the claim as originally pleaded, and the claim in its proposed amended form, which we refer to below). Referring to the Policy overall, Mr Buttler submitted that it laid out a staged process through which asylum claims passed such that once a decision had been taken not to treat an asylum claim as inadmissible it was not possible, consistent with the Policy, to reconsider that decision and declare the claim to be inadmissible.

[9]The second ground of challenge in the original grounds of claim was that the underlined words were “irrational, unreasonable and unfair” because: the Applicant had already waited more than 2 years for a decision on his asylum claim; the United Kingdom has no agreement with any third country which might be the premise for an inadmissibility decision; and the underlined words have caused prejudice to the Applicant because he suffers from symptoms of post-traumatic stress disorder which can be triggered by stress.

[10]The relief sought by the original claim comprised(a) a declaration that by “reserving the right to de-admit [the Applicant], and likely others in the MEDP cohort, from the asylum process” (which it was said was the effect of the underlined words), said apparently to be in pursuance of an unpublished policy, was unlawful;

(b) a mandatory order “requiring the Respondent forthwith to serve on the Applicant and others in the same situation (likely all others in the MEDP cohort)”, a decision confirming that no such action would be taken in relation to them; and

(c) a prohibiting order preventing the Home Secretary from the exercise of her powers under the relevant provisions of the 2002 Act to determine claims to be inadmissible so far as concerned the Applicant and the others in the MEDP cohort.

[11]The Home Secretary filed an Acknowledgment of Service and Summary Grounds of Defence opposing the claim. Permission to apply for judicial review was granted on 2 January 2025.

[12]On 6 February 2025 the Home Secretary granted the Applicant’s claim for asylum. From this time both the claim and the relief sought in these judicial review proceedings became unnecessary so far as concerned the Applicant’s own circumstances.

[13]On 18 February 2025, the Applicant served the Respondent with proposed amended Statement of Facts and Grounds. On 4 March 2025 an application to amend was made seeking permission to amend in the same form. The proposed amended grounds were a wholesale replacement of the original grounds. The gist of the proposed amended grounds was this.(a) Notwithstanding the decision on the merits of the Applicant’s asylum claim, the claim for judicial review was not academic because the underlined words “affect tens of thousands of asylum seekers”.

(b) The underlined words were inconsistent with the Policy with the consequence that “the decision” “to leave open the possibility of reinstituting inadmissibility action … [was] therefore unlawful”.

(c) The underlined words were inconsistent with a legitimate expectation arising from the recitals to the Order in AMX (referred to above at paragraph 6).

(d) Including the underlined words in the letter to the Applicant was unlawful because the Applicant had already waited for 2 years for a decision on his asylum claim; because of his vulnerability to symptoms of post-traumatic stress disorder; and because there is no existing agreement between the United Kingdom and any other country on which the provisions in the 2002 Act could operate. This last ground was materially the same as the second ground in the original claim. The proposed amended claim sought only declaratory relief that the inclusion in the letter of the underlined words was unlawful, and that the underlined words evidenced an unlawful practice or “unpublished” policy. An order “quashing” the underlined words was also sought.

[14]The application to amend was opposed. The Home Secretary’s position, set out in correspondence, was (in very short summary) that(a) the cohort affected was approximately 2,000 asylum claimants, not the “tens of thousands” claims in the proposed amended claim;

(b) the claim was academic so far as concerned the Applicant;

(d) that the underlined words did not contain any such decision as the Applicant contended for; and

(e) the Home Secretary’s position so far as concerns the asylum claims made by the MEDP cohort had been set out in the recitals to the Order in AMX (i.e., that their claims for asylum would be determined on the merits, in the United Kingdom).

[15]The application for permission to amend remained pending and was due to be decided by the Tribunal at the hearing. (2). The afternoon before the hearing

[16]The afternoon before the hearing, the Home Secretary published the following statement on the Home Office website “Guidance: Asylum claims under the Migration and Economic Development Partnership Published 8 April 2025 By way of update on the status of this group of asylum claims, the Home Office has discontinued inadmissibility action and is committed to substantively considering the merits of the asylum claims (these concern individuals who arrived in the UK on or after 1 January 2022 and who were issued notices before 29 June 2023, informing them that they may be removed to Rwanda). There remain a diminishing number of asylum claims in this group that are pending decision. The Home Office confirms that work is progressing and will continue until all claims have received a substantive asylum decision. Whilst a rigid timeframe for completion cannot be given, it is estimated that all workable cases should be finalised by the end of the year at the latest.” We will refer to this as the “8 April statement”.

Published 8 April 2025

[17]This statement prompted the Applicant to apply to the Tribunal for permission to withdraw his claim and for an order that the Home Secretary pay the costs of the proceedings. That application prompted the Home Secretary to make her own application for costs.

B. Decision

[18]Both Mr Buttler, and Miss Anderson counsel for the Home Secretary, have referred to the “usual” authorities on the approach the court may take when considering applications for costs arising in circumstances when the substantive determination of a claim for judicial review has ceased to be necessary, including: R(Boxall) v Waltham Forest LBC

(2000) 4 CCLR 258

; R(Bahta) v Secretary of State for the Home Department [2011] 5 Costs LR 857; R(M) v Croydon LBC

[2012] 1 WLR 2607

; and ZN(Afghanistan) v Secretary of State for the Home Department [2018] 3 Costs LO 357. These cases all concerned claims for judicial review brought in the Administrative Court and as such, governed by the Civil Procedure Rules (“the CPR”) including CPR Part 44 on the “General Rules about Costs”. The claim before us is not subject to the CPR but is subject instead to the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the 2008 Rules”). By rule 10(3)(a) of the 2008 Rules the Tribunal has the power to make costs orders in judicial review proceedings. The 2008 Rules say no more as to the exercise of that power. The unspoken premise for the submissions made to us is that the Tribunal should exercise the power under rule 10(3)(a) in accordance with the principles that would apply to a costs application made in judicial review proceedings issued in the Administrative Court. We approach the costs applications before us on that basis.

[19]The general rule (at CPR 44.2(3)) is that the unsuccessful party will be ordered to pay the costs of the successful party. In lawyers’ shorthand, costs are said to “follow the event”, with the event being the outcome of the trial. In different ways, each of the cases we have been referred to has wrestled with how to apply that general rule in circumstances where proceedings have been issued but have come to an end before trial. The authorities have been clear that in such circumstances the general rule still applies. But how to apply that rule is more difficult because the decision must be made even though the relevant “event” has not occurred. In different ways, the approaches advanced in the judgments each indicate circumstances which might provide suitable proxies for the outcome of the trial, or pointers to how the general rule would have applied after trial, subject always to the proviso that whatever exercise the court undertakes to decide a costs application made in these circumstances should be a proportionate exercise. When considering the application of the approaches referred to in these judgments it is important to have in mind that the need to decide such costs applications can arise in a range of different circumstances. To take obvious examples for judicial review claims, applications for costs made because a trial is no longer necessary may arise: shortly after proceedings have been issued; after a decision to grant permission to apply for judicial review; or “at the door of the court”. The information available to the tribunal required to decide the costs application will always fall short of the information that would have been available had the proceedings gone to trial, but what is available to the tribunal from case to case may vary significantly depending on when the need to make application arises. This means that the approaches set out in the authorities must be applied in ways that reflect the circumstances before the court rather than merely slavishly.

[20]All this is context for consideration of the case law. Mr Buttler placed particular reliance on the judgment in M. In that case the claimant, who had made an asylum claim and claimed to be 12 years old, had issued proceedings challenging a local authority’s decision to refuse to re-assess his age. Shortly after the decision to grant permission to apply for judicial review, the local authority agreed to undertake an age assessment. Thus, the issue in the claim was overtaken by events. The judge in the High Court made no order for costs. That order was the subject of the appeal. In his judgment in M, Lord Neuberger MR first considered the position on costs applications in “ordinary” civil litigation both when considering applications made after a contested trial and when applications are made following a settlement reached before trial. He referred to the general rule. He noted that when an application for costs is made following settlement and it is clear that the order agreed gives the claimant all the relief sought in the claim, the claimant ought to recover his costs from the defendant in the absence of some good reason to the contrary – i.e., the general rule should apply. Lord Neuberger observed that the position would usually be different if the relief obtained was not substantially all the relief claimed and that in such circumstances the court might often conclude that each party should bear its own costs of the proceedings. At paragraph 51 he said this:

“51. In many cases which are settled on terms which do not accord with the relief which the claimant has sought, the court will normally be unable to decide who has won, and therefore will not make any order for costs. However, in some cases the court may be able to form a tolerably clear view without much effort. In a number of such cases the court may well be assisted by considering whether it is reasonably clear from the available material whether one party would have won if the case had proceeded to trial. If for instance it is clear that the claimant would have won, that would lend considerable support to his argument that the terms of settlement represent success such that he should be awarded his costs. …”

Thus, Lord Neuberger did not say that a tribunal is precluded from considering the merits of the claim if it is in a position to do so. It follows from what he did say that if a tribunal is in a position to form a view on the merits of the claim and if the view formed is that the claim is likely to have failed, that too would speak to whether (and if so what) costs order should be made.

[21]Turning to cases in the Administrative Court, Lord Neuberger concluded (at §58 of his judgment) that the principles relevant to general civil litigation applied equally to public law claims. He rejected various submissions made, each to the effect that there were special reasons in public law claims justifying a different starting point, such that where the relief sought was obtained before the trial took place, each side should bear its own costs (i.e. there should be no order for costs). At paragraph 60 he continued as follows referring to 3 categories of case:

“60. Thus in Administrative Court cases just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant’s claims. While in every case the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.”

We have no doubt that in setting out his 3 categories, Lord Neuberger intended to do no more than, by reference to 3 broadly-defined classes, provide guidance on how the general rule might apply where a costs application is made in circumstances where a trial is no longer required. He did not intend anything approaching prescription or codification.

[22]In the present case, the submission for the Applicant is that the case is in Lord Neuberger’s category (i). As to category (i), Lord Neuberger stated (at paragraph 61 of his judgment in M) that it was “hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary”. The submission for the Home Secretary is that the present case falls into category (iii). On category (iii) Lord Neuberger stated “63. In case (iii), the court is often unable to gauge whether there is a successful party in any respect and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.”

[23]One point raised by the submissions to us concerned what matters we could consider for the purpose of deciding whether the present case fell into category (i) or category (iii) and, in particular, whether we could have regard to the substantive merits of the Applicant’s case. The submission for the Applicant focussed on the similarity between the relief the Applicant had sought in the proceedings (whether in their original form or the proposed amended form) and the content of the Home Secretary’s 8 April statement. It is said that since Lord Neuberger’s categories are defined by reference to correlation between the claimant’s claim and the relief the defendant has been willing to concede, that must be the limit of the inquiry. Based on this, it was submitted that any inquiry should go no further; that we should conclude the Applicant had been “wholly successful”; and that we should make an order for costs in his favour.

[24]We accept that there will be some cases where it is apparent from context that the action the defendant has agreed to take which is relied on as removing the need for the litigation to continue, will support or even require the conclusion that the applicant has been wholly successful. Sometimes the conclusion that the applicant has been wholly successful will be the reasonable conclusion to draw from the terms agreed. But context can be important. In some instances, there may be little by way of context to displace the inference that action taken by the defendant has amounted to conceding the claim. When the act the applicant relies on as the concession takes place well before the claim was due to be heard, the court may be very poorly placed to take any view on any matter going to the merits of the underlying claim that might serve to detract from or displace such inference.

[25]However, there is nothing in M or in any other of the authorities to which we have been referred that requires a tribunal to take a special approach when deciding where costs should fall in situations where a claim has been compromised and, for that purpose, decline to consider relevant matters. The tribunal’s costs jurisdiction is the same regardless of whether it falls to be exercised after a contested trial or following a compromise. As was noted in Bahta (by reference to the judgment of Scott Baker J in Boxall) the overriding objective is to do justice between the parties, in accordance with the application of any relevant court rules, without incurring unnecessary court time and consequently additional cost. In situations where there is a compromise, a proportionate approach may (and perhaps will usually) require the court to exercise its costs jurisdiction applying the general rule on the basis of less than complete information (or at least, less information than would be available to it after a contested trial). But that does not require a tribunal to disregard information that is relevant and is available when the decision falls to be made.

[26]If the issue for the tribunal is whether the case before it falls into Lord Neuberger’s category (i), such that on the application of the general rule the defendant should pay the applicant’s costs, the tribunal must have in mind the rationale for the costs follow the event rule. In ZN (Afghanistan), Singh LJ made the point in this way:

“67. The underlying rationale for the normal rule that costs follow the event is that a party has been compelled by the conduct of the other party to come to court in order to vindicate his legal rights. If those legal rights had been respected in the first place by the other party, it should never have been necessary to come to court. Accordingly, there will normally be a causal link between the fact that costs have been incurred and the underlying merits of the legal claim. This underlying rationale also explains why civil procedure normally requires a party to send a pre-action protocol letter to the other party. If the response to that letter had been to accept the merits of the claim in advance, it should never have been necessary to bring that claim to court.”

A conclusion that a case falls into Lord Neuberger’s category (i) is a conclusion that the causal link referred to by Singh LJ exists. When deciding whether that causal link does exist in any particular case, a tribunal ought to take account such information as is relevant and is available to it at the time the decision falls to be made.

[27]Turning to the circumstances of the present case, we do not consider this case falls into Lord Neuberger’s category (i) and we reject the Applicant’s application for an order that the Home Secretary pay his costs of the proceedings. Having considered all circumstances concerning the claim, the circumstances in which it was made and the circumstances in which it was pursued, we are not satisfied that the correct inference to draw following the Home Secretary’s 8 April statement is that the Applicant has been “wholly successful”. Rather, this case is within Lord Neuberger’s category (iii).

[28]First, the Applicant’s case, whether as originally pleaded or in its proposed amended form was a very weak claim. It was a claim that was contested by the Home Secretary. Both these points (though in particular, the former) tend against a conclusion that the Home Secretary’s 8 April statement is to be taken as a concession to the Applicant’s claim. The claim came to us prepared ready for hearing, including detailed skeleton arguments from both sides. The Home Secretary’s 8 April statement came so late in the day that we had already taken the opportunity to read into the case and become fully acquainted with the issues raised. In the premises, we are well-placed to form a view on the likely merits of the case. Had the hearing on the substantive issues taken place we would have first needed to decide the application to amend the Statement of Facts and Grounds. It is highly likely that that application would have been refused on the basis that the proposed amended grounds disclosed no arguable case.

[29]The Applicant’s claim rests on a significant over-reading of the underlined words in the 22 July letter (see above, at paragraph 7). There is no sensible basis on which it can be said that those words represent any form of decision. Having informed the Applicant that his asylum claim would be decided on its merits, the underlined words come to no more than the Home Secretary saying “if that position changes, I will let you know”. That is not a decision on the use of the Home Secretary’s power under section 80B of the 2002 Act in any relevant sense; it is a statement of what will happen (“I will let you know”) if at some point in the future something happens such that the Home Secretary might become minded to take a decision in exercise of those powers.

[30]The first of the proposed grounds of challenge, that the underlined words are inconsistent with the Policy, rests on an ambitious reading of the Policy. The submission now is that the part of the Policy to the effect that the possibility of an inadmissibility decision pursuant to the power at either section 80A or 80B of the 2002 Act ought not to delay a determination of an asylum claim on its merits for too long (see above at paragraph 8), must mean that the Home Secretary’s policy is that if she has already decided that an asylum claim should not be treated as inadmissible, that decision cannot later be revisited. We have considerable doubt whether that is a possible reading of the Policy. There is nothing to that effect on the face of the Policy and nothing in either section 80A or 80B of the 2002 Act that would require the Home Secretary to limit her approach to her statutory powers in that way. Moreover, it is a non-sequitur to say that the part of the Policy that says that consideration of inadmissibility should not unnecessarily delay decisions on asylum claims must mean that the Home Secretary’s policy is that the power at section 80A and 80B to declare an asylum claim inadmissible may not be considered on more than one occasion. (For example, what if new circumstances come to light as a result of information provided in the course of the decision-making process on the asylum claim?) Be that as it may, the underlined words do not comprise a decision to revisit the application of the Home Secretary’s powers under section 80B of the 2002 Act. The underlined words say only that if the Home Secretary changes her mind and decides to consider again the option of declaring the claim to be inadmissible, the Applicant will be informed. It is clear from the remainder of the letter that the Applicant’s asylum claim is to be considered on its merits – a course of action entirely consistent with the Policy.

[31]The second ground is that the underlined words are inconsistent with a legitimate expectation arising from the recitals to the Order in AMX (see above at paragraph 6). There is no reasonable basis for the suggestion that anything in the letter is at odds with anything in the recitals to the Order. The underlined words do not say that the Home Secretary is considering whether to declare the claim inadmissible. Considered overall, the letter is a letter informing the Applicant that his asylum claim will be decided on its merits in the United Kingdom and telling him when to attend for his asylum interview.

[32]The proposed third ground is hopeless because the underlined words do not say that a decision on inadmissibility is either pending or even likely. When the Applicant read the letter, he would (or at least ought to) have understood that his asylum claim was going to be considered on its merits in the United Kingdom.

[33]The claim as originally pleaded is no better. The first part of that claim asserted breach of a legitimate expectation arising from the Policy. However, since the underlined words are not inconsistent with the Policy, the legitimate expectation claim could not succeed. The second part of the claim as originally pleaded was the same as the third ground in the proposed amended claim, and fails for the same reasons.

[34]Second, having carefully considered the pre-action correspondence and the correspondence prompted by the Applicant’s application to amend the claim, we accept the submission for the Home Secretary that there was no sufficient reason for the proceedings to be commenced or, at the latest following the decision to grant the Applicant’s claim for asylum on 6 February 2025, to be continued. We had the benefit of detailed submissions on the parties’ correspondence and on the various pleadings. The following matters emerge.

[35]In the pre-action letter (dated 1 October 2024), the Applicant required the Home Secretary:

“… to confirm that the applicant will be permanently or finally admitted to the asylum process and confirm that the threat of inadmissibility action recommencing will no longer hang over the client’s head … [and] to issue new letters to all people who have been admitted to the asylum process with a letter similar or identical to the letter sent to our client dated 18 July 2024 confirming that inadmissibility will not recommence or alternatively issue new published policy guidance confirming the same.”

The Home Secretary’s response (dated 5 October 2024) included this statement:

“… Following the change of Government after the General Election on July 4th 2024, all of those previously identified as being in scope of removal to Rwanda [the MEDP cohort] will have the merits of their asylum claims substantively determined in the UK.”

Thus, before the litigation commenced, the Home Secretary had stated clearly (repeating what had already been recorded in the recitals to the Order in AMX) that asylum claims made by those in the MEDP cohort, including the Applicant, would be decided in the United Kingdom. This was the confirmation the letter before action had, as a matter of substance, requested. The Applicant had, for all practical purposes, obtained what he had asked for. To the extent the letter before action had required the Home Secretary to issue letters or a policy, that was a matter of form not substance. The matter of form was not likely to be a matter of practical importance. The solicitors acting for the Applicant (the Joint Council for the Welfare of Immigrants) had been in the vanguard of the opposition to the Rwanda policy and were well-placed to make sure that the confirmation provided in the response to the letter before claim became widely known. Moreover, those advising the Applicant ought to have realised that even were the proposed claim to succeed, the chance that by way of relief the court would make a mandatory order requiring the Home Secretary to issue a policy statement were vanishingly small. That would be an unusual course for a court by way of relief on a claim for judicial review: the court’s judgment and any declaration the court made will usually be allowed to speak for themselves.

[36]Nevertheless, the claim was filed at the end of October 2024. The Home Secretary’s Acknowledgment of Service and Summary Grounds of Defence were filed on 22 November 2024. At paragraph 11, the Summary Grounds referred to the Order in AMX:

“In R(AMX) v Secretary of State for the Home Department (AC-2024-LON-001355), the High Court made an order on 22 July 2024 in relation to the Migration and Economic Development Partnership (“MEDP”) cohort, of which the Applicant was a part. It is noted in the Statement of Matters pursuant to Practice Direction 54A Paragraph 17 in that order, that the Respondent had: i. confirmed that all of the MEDP cohort will have the merits of their asylum claims substantively determined in the UK; and, ii. agreed to treat all others from the MEDP cohort as having joined the UK asylum system on the date when they first claimed asylum.”

Thus, the Home Secretary’s Summary Grounds repeated the point previously made in the response to the letter before claim – that the asylum claims made by the members of the MEDP cohort would be decided in the United Kingdom.

[37]By 6 February 2025, when the Applicant’s claim for asylum was granted, the claim for judicial review became academic, at least so far as concerned the Applicant. Quite apart from the statement contained in the response to the letter before claim, there was no possibility that the Home Secretary might seek to use her power under section 80B of the 2002 Act in his case because the Applicant’s asylum claim had been decided on its merits.

[38]It is apparent from the parties’ correspondence after 6 February 2025 that the Applicant did recognise what ought to have been apparent at the time of the response to the letter before action – i.e. that the asylum claims made by the MEDP cohort would be decided in the United Kingdom.(1) On 18 February 2025 the Applicant’s solicitors wrote to the Home Secretary’s solicitors providing proposed amended grounds of claim and seeking agreement to the proposed amendment. The proposed amended grounds did not suggest that the Applicant’s claim was made in any representative capacity, and in his submissions to us Mr Buttler has been at pains to make clear that this is not what the Applicant has sought to do. He does not purport to represent the members of the MEDP cohort. By way of relief, the proposed amended claim sought a declaration that the underlined words were unlawful, an “order quashing the offending passage”, and a declaration that the “practice or unpublished policy” said to be evidenced by the underlined words was unlawful.

(2) On 26 February 2025 the Home Secretary’s solicitors replied. The letter (a) stated that the application for permission to amend would be opposed on its merits and because the Applicant’s claim had become academic following the decision to grant him asylum; (b) said that a “binding undertaking” had been given in the AMX order that the asylum claims made by the MEDP cohort would be decided in the United Kingdom; (c) said that “… the commitment in AMX will be reflected in the published guidance online, so there can be no question of future misunderstanding …”; and (d) enclosed a draft consent order which included the following as a recital:

“AND UPON the Respondent’s confirmation that the Order made in the High Court in R(AMX) v SSHD (AC-2024-LON-001355) means that claims could not be placed back into the inadmissibility system.” (3) The Applicant’s solicitors replied on 27 February 2025. This letter did accept that it was the Home Secretary’s position that the asylum claims made by the MEDP cohort would be decided in the United Kingdom, albeit asserting that this was a matter that the Home Secretary only “now” accepted. An alternative form of consent order was proposed, containing the following 2 recitals: “UPON the Respondent stating on 26 February 2025 that the effect of the order of Rice J in R(AMX) v SSHD (AC-2024-LON-001355) 1 (“the AMX order”) is that all asylum seekers identified as having been in scope for removal to Rwanda (“the MEDP cohort”) will have the merits of their asylum claims substantively determined in the UK and will never be the subject of inadmissibility action despite what may be stated in correspondence such as The Letter (“the Commitment”). AND UPON the Respondent stating on 26 February 2025 that the Commitment will be reflected in guidance which she will publish online by 1 April 2025.”

The former recital was obviously tendentious because the Home Secretary had referred to the order in AMX in her Summary Grounds of Defence filed in November 2024, and had stated in the response to the letter before action in October 2024 that the asylum claims would be decided on their merits in the United Kingdom. The point made in the latter recital was, as we have already said, a matter of form not substance. It is also notable that by the time of the proposed amended grounds, the relief sought had not included an order requiring the Home Secretary to publish a policy. It is clear to us that by this stage, the Applicant’s solicitors were seeking to position the Applicant’s claim as one that fell within Lord Neuberger’s category (i). (4) Thereafter the inter-party correspondence came to focus on disputes as to the drafting of the consent order. In one letter sent on 5 March 2025 the Applicant’s solicitor said this:

“Unless and until your client consents to an order which records that she will never subject any member of the MEDP cohort to inadmissibility action and will make that clear to the world (e.g. through a published policy) then the claim is not academic.”

This is odd. It was not the Applicant’s case that he brought the claim in any representative capacity. So far as his interests were concerned, the claim was academic. It was not part of the relief sought by the proposed amended case that the Home Secretary should be ordered to publish a policy. Rather, this was something the Home Secretary had said she would do in the letter dated 26 February 2025.

[39]Drawing these matters together we are entirely satisfied that this case is not one in which the causal link, referred to by Singh LJ in his judgment in ZN(Afghanistan), exists. This is not an occasion where an applicant has been compelled to come to court to vindicate his legal rights and, in any event, is not one on which this Applicant pursued a claim that was likely to succeed. In the premises, the Home Secretary’s 8 April statement is not to be taken to be any form of concession in response to the Applicant’s claim. In fact, that statement says little more than was said in the 22 July 2024 letter that prompted these proceedings.

[40]Overall, we cannot escape the conclusion that this claim, whether in its original or proposed amended form, was not a challenge to any practically or legally effective decision, and was not a challenge raised or pursued in response to any reasonably held concern either that Applicant’s asylum claim or those pursued by other members of the MEDP cohort would not be considered on its merits in the United Kingdom. In this respect, the Home Secretary’s position was clear from the response to the letter before claim and, for that matter also, from the recitals in the Order in AMX. The Rwanda policy pursued by the previous government was both legally contested and also hugely politically controversial. The merits of this challenge were so unmistakably thin, and the circumstances in which it has been commenced and pursued are such that it is clear to us that this is a claim that has only ever existed in the realm of politics and policy and not in the realm of law.

C. Disposal

[41]The first consequence of the above is that the Applicant’s application for costs is refused. The further consequence is that the Home Secretary’s counter-application for costs is granted, albeit that since the Applicant is in receipt of public funding the usual restriction on the ability to enforce that order will apply.

[42]We would be grateful if counsel could seek to agree the terms of an order reflecting the conclusions we have reached. That order should also include all other matters necessary to bring the Applicant’s claim to an end. ~~~~0~~~~

Cited in 1 later judgment

BLV, R (on the application of) v The Secretary of State for the Home Department 2025