The Secretary of State may be liable in costs for a successful claim for a Cart judicial review brought by an asylum applicant to quash the decision of the Upper Tribunal (UT) in refusing to grant permission to appeal on an important point or for some compelling reason, the Court of Appeal has ruled.
At the same time, Lord Justice Hickinbottom upheld the rule that ordinarily an inferior court or tribunal will not be liable for the costs of judicial review to correct its own mistake unless the tribunal has actively defended its position in the High Court proceedings.
In R (on the application of Jawad Faqiri) (Appellant) v Upper Tribunal (Immigration and Asylum Chamber) (Respondent) and Secretary of State for the Home Department (Interested Party)  EWCA Civ 151, the appellant applied for asylum.
The application was refused by the Secretary of State, and the appellant’s appeal was refused by the First-tier Tribunal, which refused permission to appeal, as did the UT. There was no further right of appeal.
The appellant therefore sought judicial review of the refusal of permission by the UT. Neither the UT as defendant, nor the Secretary of State as interested party, put in a response contesting the claim. His Honour Judge David Cooke, sitting as a judge of the High Court, therefore quashed the UT decision and remitted the matter to the UT to redetermine that application under CPR rule 54.7A.
HHJ Cooke ordered that the costs of the claim in the Administrative Court be treated as costs of the appeal before the UT.
In his observations, he added: “It is not appropriate to order costs against the defendant, which is a tribunal, but to treat the application to this court as a stage in seeking permission to appeal, the costs of which are part of the appeal proceedings.”
The appellant’s barrister, Becket Bedford of No5 Chambers (instructed by Sultan Lloyd), argued the tiny number of Cart claims would be smaller still if the lawyers who took them on behalf of unaccompanied children were unable to recover costs against either the UT or the Secretary of State.
A briefing from No5 said: “The argument is that that higher principle of access to justice is impeded. Although the claimant was awarded his costs in the High Court below, it was a Pyrrhic victory. The High Court awarded him costs contingent on the outcome of his tribunal appeal.
“The difficulty with that approach is, win or lose, costs in the tribunal are payable only if the other party has acted unreasonably. In this case, there was no suggestion of unreasonable conduct by anyone except perhaps the tribunal.”
However, the court held it was bound by its previous decision in R (Gudanaviciene) v First-tier Tribunal  EWCA Civ 352 to refuse to award costs against the UT.
Hickinbottom LJ noted that neither counsel was able to refer the court to a single case in which an order for costs had been made against a court or tribunal, and “in any event, on the evidence, I am unpersuaded that the inability to obtain a costs order against a tribunal is any hindrance or impediment to access to justice”.
He added: “In my view, it would be curious – indeed, incongruous – if a court, tribunal or the individual holder of a judicial post was potentially liable for the costs of an application for judicial review of a refusal of permission to appeal, but not for the costs of any other challenge to his or her decisions, e.g. by way of appeal or judicial review to any other decision. It is unsurprising that the well-established law is that they are not so liable.”
Paul Joseph, also of No5, represented the Government Legal Department on behalf of both the UT and the Secretary of State. The latter cross-appealed the decision to award costs against him on the ground that he took no role in the High Court proceedings and ought not to bear a risk in costs for the UT’s error.
The court rejected this argument too. In judicial review, Hickinbottom LJ said, subject to the pre-action protocol procedure, “in most cases where the Secretary of State accepts that his underlying decision was unlawful, he will be liable for the claimant’s costs of proceedings even if he does not contest the claim; because the claimant has again only been able to vindicate his rights by making the judicial review claim”.
The right that the appellant was in reality seeking to vindicate was not his right to pursue an appeal in the UT, but his right to asylum, which the Secretary of State had denied. “In my view, that is a principled basis for an order in the judicial review that may result in the Secretary of State bearing some of the claimant’s costs, even though he played no active part in the claim.” He could, the judge added, have taken an active part in the Cart claim had he wished.