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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Shahi v Secretary of State for the Home Department [2021] EWCA Civ 1676 (16 November 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1676.html Cite as: [2021] EWCA Civ 1676 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
IN THE MATTER OF AN APLICATION FOR JUDICIAL REVIEW
HHJ Worster
CO/639/2020
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DINGEMANS
and
LADY JUSTICE ELISABETH LAING
____________________
MOSTAFA SHAHI |
Appellant |
|
- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Natasha Barnes (instructed by Government Legal Department) for the Respondent
Hearing date: 2 November 2021
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 9.50am on Tuesday 16 November 2021.
Lady Justice Elisabeth Laing DBE:
Introduction
The facts in outline
MS's pre-action protocol letter
i. 'The decision to stop providing [MS] with support…28 days after the granting of refugee status' and
ii. 'The failure of the Defendant to amend Regulation 3 of the Asylum Support (Amendment) Regulations 2002 in order to provide a sufficient move-on or 'grace' period'.
The Secretary of State's pre-action protocol response
The claim form and application for urgent consideration
i. 'A declaration that [the Secretary of State's] refusal to extend [MS's] accommodation beyond 19 February 2020 was unlawful' and
ii. 'A mandatory order that [the Secretary of State] do continue to provide financial support and accommodation until [MS's] application for permission is determined and/or he is in receipt of [UC] and/or local authority accommodation'
iii. 'Any other order the court sees fit' and
iv. 'Costs'.
'The case is important and raises issues an issue [sic] which affects a wide class of persons, namely refugees who have recently acquired status and who face destitution. Counsel team…who have expertise across the three jurisdictions in this case, housing, social welfare and immigration law, are in London'.
19. Section B of the grounds was headed 'Interim relief'. Paragraph 7 said that, in another case, Lang J had made an order similar to the order sought by MS. Paragraph 8 referred to two authorities and said that the court should take 'whichever course appears to carry the lower risk of injustice if it should turn out to have been "wrong"…'. MS submitted that it was the 'lesser injustice' that he should not be made homeless and destitute 'whilst the issue in this case is determined and his applications for [UC] and local authority accommodation are determined'.
Johnson J's order
'6. On the basis of the material before me, and in the absence of an Acknowledgement of Service, and without in any way binding the permission judge, I am satisfied that the claim is sufficiently arguable to merit a grant of interim relief. I am further satisfied that the balance of convenience favours the grant of interim relief which will have the effect of maintaining the status quo and avoiding [MS] from becoming homeless before this matter can come back before the Court for a decision on permission.'
The consent order
The parties' written submissions on costs
The decision which is the subject of this appeal
The order in Jabarkhil
The statutory scheme
32. 'Asylum seeker' is defined in section 94(1), for the purposes of Part VI, by reference to listed criteria, including that the person has made an asylum claim (as further defined in section 94(1)), and that that claim has not yet been determined. By section 94(3), again for the purposes of Part VI, an asylum claim is determined at the end of 'such period beginning with the date on which the Secretary of State notifies the person of her decision on the claim …as may be prescribed'.
The relevant authorities
i. the claimant has been wholly successful;
ii. the claimant has only succeeded in part; and a third type of case in which
iii. there has been a compromise which does not actually reflect the claimant's claims.
i. They had complied with the pre-action protocol.
ii. They had got an order for interim relief.
iii. Their substantive case was strong. If the case had gone to trial, it was highly likely they would have won.
i. The claimants achieved their long-term objective, but not because of any court order or concession by the Council. They achieved it because of the Secretary of State's decision to give them ELR. '[T]he favourable intervention by a third party cannot be a reason' to make an order for costs.
ii. The costs of the application for interim relief were reserved, by consent. The underlying dispute was never tried. Jackson LJ could not see any basis on which the judge could have ordered the Council to pay those costs to the claimants. The judge could not be criticised for not dealing with those costs separately. The fact that the claimants were granted interim relief was not a reason for giving them the costs of the action. The judge who granted interim relief was not making a decision about the merits of the underlying dispute. He did not even grant permission to apply for judicial review. He simply protected the claimants' position until a 'rolled-up' hearing. 'In my view, the fact that the claimants obtained interim relief does not mean that they were successful in the action. It is not a reason for awarding the claimants the costs of the action' (judgment, paragraph 44).
iii. The Council had had a consistent position. Whether it was right or not had not been decided. It was not a reason for ordering the Council to pay the costs of the claim.
iv. It was not the function of a court on a costs appeal to give a substantive decision about the merits of litigation which did not come to trial. Both sides had 'formidable arguments'.
The parties' submissions
i. The role of the Court of Appeal is limited to a review. It will only interfere with the decision of the lower court if it erred in principle or took into account irrelevant, or failed to take into account relevant, considerations. He drew our attention, among other authorities, to the decision of this Court in R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415; [2006] 1 WLR 4853, at paragraphs 13-14, per Lloyd Jones LJ (as he then was).
ii. The general rule in civil litigation (see CPR Part 44.3(2)) is that the unsuccessful party pays the costs of the successful party. The reason for the rule is that the successful party should not be out of pocket because he had to go to court to 'vindicate a right or entitlement'. That is 'relatively juster' than the alternative.
iii. The effect of the decisions of this Court in Bahta and M v Croydon is to apply the same rule when cases settle in public law litigation. If there is a settlement, the successful party is identified by reference to what the claimant achieved from the settlement, and that is what, in substance, the claimant achieved. He referred to paragraph 65 of Bahta: 'Where relief is granted [by the Secretary of State pursuant to the terms of the settlement], the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs…'. In paragraph 6 of AL (Albania) v Secretary of State for the Home Department [2012] EWCA (Civ) 710; [2012] 1 WLR 2898, this Court held that paragraph 65 of Bahta expressed its ratio.
iv. The identification of the successful party is a pragmatic exercise in the real world. He referred to Day v Day [2006] EWCA (Civ) 415, and to paragraph 57 of Tesfay. In paragraph 57 Lloyd Jones LJ observed that it can be difficult to say who has won in a public law claim; sometimes the most that can be achieved is an order requiring the decision-maker to reconsider, on the correct legal basis, the decision which has been challenged; and that might not lead, in the end, to a win for the claimant, because the new decision may be a lawful decision against the claimant's interests. Nevertheless, an order for reconsideration will often be a substantial achievement. Success must be assessed by reference to what was sought, how it was opposed, and what was achievable. Mr Buley also referred to Dempsey v Sutton London Borough Council [2013] EWCA (Civ) 863 in which, he said, the interim order set out in paragraph 11 of the judgment was a final solution to the dispute, even though it did not reflect the relief the claimant had sought (see paragraph 23 of the judgment). The present case was a fortiori, because interim relief was 'all' MS was seeking.
v. Subject to one exception, it was wrong in principle when considering who was the successful party to speculate about how the litigation would have been decided at trial. He relied on paragraph 52 of Tesfay. That proposition was not limited to cases in which there was a settlement. The exception was articulated by Neuberger LJ in paragraph 62 of M v Croydon. He accepted the argument, in relation to 'case (iii)' 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 for concluding that there is no order for costs…Where there is no clear winner, so much would depend on the particular facts. In some 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.' Case (iii) is a case in which there has been a compromise which does not reflect the claimant's claims. Mr Buley submitted that neither party relied on this exception. It was a fall-back, and it only applied in a clear and obvious case.
Discussion
The issues
i. What was in dispute in the application for judicial review?
ii. Did Johnson J decide that dispute when he granted interim relief?
iii. What was settled by the consent order?
iv. Which party was successful for the purposes of CPR 44.3(2)? On this appeal, that involves two sub-issues: whether the Judge was entitled to
1. ask himself which side would have won if there had been a substantive hearing; and
2. decide that he could not tell which side would have won.
What was in dispute in the application for judicial review?
Did Johnson J decide that dispute?
What was settled by the consent order?
Which party was successful for the purposes of CPR 44.3(2)?
(i) Was it open to the Judge to ask himself who would have won at a substantive hearing?
(ii) Was it open to the Judge to decide that he could not tell?
i. There is a high threshold for establishing a breach of article 3 in a case concerning state support.
ii. Article 8 does not confer rights to benefits or to housing.
iii. MS was permitted to work.
iv. His solicitors had delayed in providing him with his BRP.
v. As he acknowledged in the pre-action protocol letter,
1. he could have applied for an advance of UC to bridge the relatively short gap, and
2. he might have seen by local housing authority being as in priority need for housing.
In those circumstances, it was not only open to the Judge to decide that he could not tell who would have won had there been a substantive hearing, that was also the right decision.
Other matters
Conclusion
Lord Justice Dingemans
Lord Justice Newey