As outlined in our previous series of blog posts, immigration judicial review allows you to challenge decisions by the Home Office when the decision does not attract a right of appeal or administrative review.
An important consideration when deciding whether to pursue immigration judicial review is the potential cost implications. The general rule is that the unsuccessful party will pay the costs of the successful party. Therefore, if you do not succeed, you may be liable to pay the costs of the Home Office. Of course, it is also important to take into account that if you are successful, the Home Office may be liable to pay your costs.
Most judicial reviews in immigration cases are now heard in the Upper Tribunal. By virtue of rule 10(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Upper Tribunal may make an order in respect of costs in judicial review proceedings. Costs are subject to the discretion of the Tribunal.
What will the Tribunal take into account in deciding whether to award costs?
The Tribunal will take into account all of the circumstances, including (but not limited to) the conduct of the parties before as well as during the proceedings, which party has succeeded, and whether they have been partly or wholly successful. When considering the conduct of the parties the Tribunal will consider whether it was reasonable for a party to raise, pursue or contest an allegation or issue, and the manner in which a party has pursued or defended a claim. One important consideration for the Tribunal will be whether each party has followed the Pre-Action Protocol for Judicial Review.
If you are considering Judicial Review of a Home Office decision, the Pre-Action Protocol requires you to write to the Home Office setting out the details of the decision being challenged and the reason it is being challenged. The Home Office will then be expected to respond to this letter. In the case of R (on the application of Bahta & Ors) v Secretary of State for the Home Department & Ors  EWCA Civ 895, Pill LJ held that there was no special rule in this respect that should apply to a Government department. This was notwithstanding the heavy workload of UKBA (now UKVI) and the constraints upon its resources. Further, according to the case of R (on the application of Jasbir Singh) v Secretary of State for the Home Department  EWHC 2873 (Admin), "where the time and effort of parties and court are wasted because of a failure on the Secretary of State to comply with a reasonable procedural timetable, then severe sanctions can be expected".
What counts as success in immigration judicial review?
As outlined above, in making a decision on costs, the Tribunal will take into account whether a party has succeeded, and whether they have been partly or wholly successful. The case of M v London Borough of Croydon  EWCA Civ 595 laid down principles for the Tribunal to follow in awarding costs.
Following the principles outlined in this case, if you have been wholly successful in your immigration judicial review, whether following a hearing or as a result of a settlement, you should recover all of your costs, unless there is a good reason to the contrary.
The case further states that if you have only succeeded in part, for example on some of your grounds for immigration judicial review but not all of them, the Tribunal will assess how reasonable you were in pursuing your unsuccessful grounds, how important it was compared with the successful part of your claim, and how much the costs were increased as a result of your pursuit of the unsuccessful grounds.
How will the court assess the value of the costs?
The Tribunal will not allow costs which have been unreasonably incurred or are unreasonable in amount. Generally, the Tribunal will assess costs on a 'standard' basis. This means that the Tribunal will only allow costs which are proportionate to the matters in issue, and if there is any doubt as to whether the costs have been reasonably incurred or are proportionate, they will be resolved in favour of the party paying the costs.
If the losing party has acted unreasonably in bringing or maintaining the claim in any other way, costs may be awarded on an indemnity basis. This means that the Tribunal will not require the costs to be proportionate, and any doubts about whether the costs were reasonable will be resolved in favour of the party receiving the costs.
The Tribunal will usually undertake a summary assessment of costs. If they do so, the parties are required to lodge a statement of costs no less than 24 hours prior to the hearing where costs will be assessed, or with the papers if costs will be assessed in the absence of a hearing. If the Tribunal considers a detailed assessment is required, this will be done in accordance with the procedure outlined in Part 47 of the Civil Procedure Rules will be followed.
Will I have to pay costs if permission for immigration judicial review is refused?
You may well have to pay costs if permission for immigration judicial review is refused. If permission is refused, the refusal will include a decision on whether to award costs in principle or not, and an indication of the amount which the Judge proposes to order. This will be the final order unless representations are filed in writing to challenge it, as outlined below. Unless there are exceptional circumstances, the Home Office will generally be able to recover the costs of filing their Acknowledgement of Service, whether or not they attend an oral permission hearing, if there is one. However, if the Home Office does attend an oral permission hearing, they will not generally recover the costs of attending, but will still be entitled to the costs of preparing the Acknowledgement of Service.
How do I challenge an order for costs in immigration judicial review?
You will have 14 days to respond in writing to the costs order that the Judge has outlined in principle. A copy of this should be served on the Home Office. These submissions will be put before a Judge and they will consider and make an award on the papers. If you seek a reconsideration of the refusal of permission at an oral hearing, then any objections to a costs order that has previously been made may be considered at that hearing. At the hearing, the Tribunal may confirm or vary the earlier order. If the representations on costs are not made within 14 days of the refusal of permission, you must apply for an extension of time to file costs submissions.
What happens if the Home Office settles?
In the case of a settlement, the onus is with you and the Home Office to reach an agreement on costs wherever possible. In seeking to do so, the Administrative Court Judicial Guide states that the parties should keep in mind the Overriding Objective of the Civil Procedure Rules, the amount of costs in question and the principles addressed above (from the case of M v London Borough of Croydon). If you are unable to reach an agreement on costs, you should follow the procedure outlined in the 'Guidance as to how the parties should assist the Court when applications for costs are made following settlement of claims for judicial review – April 2016'.
When will costs be paid?
Unless a Judge orders otherwise, a costs order should generally be complied with within 14 days of it being made.