JH (Palestinian Territories) v Upper Tribunal of the Immigration and Asylum Chamber
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Bean LJ,Haddon-Cave LJ |
| Judgment Date | 17 July 2020 |
| Neutral Citation | [2020] EWCA Civ 919 |
| Date | 17 July 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2018/1458 & 2049 |
[2020] EWCA Civ 919
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
HHJ PEARCE
CO/4353/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Macur LJ
Bean LJ
and
Haddon-Cave LJ
Case No: C4/2018/1458 & 2049
Mr Martin Westgate QC and Mr Paul Draycott (instructed by Paragon Law) for the Appellant
Ms Lisa Giovannetti QC and Mr Paul Joesph (instructed by by the GLD for the Secretary of State for the Home Department) for the Respondents
Hearing dates: 24 June 2020 via Skype for Business
Approved Judgment
Introduction.
The Grounds of Appeal in this case were settled in August 2018, and therefore prior to this court's decision in R (Faqiri) v Upper Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 151, in which it was determined that an order for costs could be made in favour of a successful claimant in CPR r 54.7A proceedings against the Secretary of State for the Home Department (“SSHD”) even though he was not a Defendant but an “interested” party who had not actively participated in the proceedings. The issues in the instant appeal appeared to be mostly on all fours. Consequently, it was initially difficult to see why the appeal was not compromised; indeed, the Respondent's Notice filed in September 2019, suggested that an order for costs be made in the same terms as the order endorsed by the Court in Faqiri. However, the Appellant, by Mr Westgate QC and Mr Draycott, dismisses the proffered solution as a worthless outcome in this particular case, (now long since resolved as indicated below), and likely to be made in error in similar cases in the future, by virtue of a jurisdictional elephant trap, which issue was not fully argued before the Court in Faqiri he says. The SSHD by Miss Giovannetti QC and Mr Joseph, disputes that there is any jurisdictional impediment to the type of contingent costs order made in Faqiri, which effectively provided for ‘costs in the appeal.’
Background.
The Appellant (“A”) is a Palestinian national, whose claim for asylum and humanitarian protection (“HP”) lodged in December 2010 was rejected by the SSHD on 1 September 2015. He appealed to the First-tier Tribunal (“FTT”) which, on 3 May 2016, allowed his HP claim related to the humanitarian situation in the Gaza Strip but rejected his asylum claim based on his alleged inability to return there. Both parties applied for permission to appeal (“PTA”): A challenging the rejection of his asylum claim; the SSHD challenging the finding of A's HP claim.
On 26 May 2016, the FTT granted both applications for PTA but limited the scope of the appeals. On 24 June 2016, A applied to the Upper Tribunal (“UT”) for permission to rely upon amended and extended grounds of appeal. On 26 July 2016, the application was refused by UT Judge Gleeson who considered that “ the proposed amended grounds … are neither of substantial assistance to the Tribunal nor in line with the over-riding objective”.
A applied for permission to issue proceedings for judicial review (“JR”) against this refusal. The SSHD did not lodge an acknowledgment of service in respect of the claim, but instead wrote to the Administrative Court (“Admin Crt”) on 13 September 2016 in, what has become, standard terms:
‘I calculate in this case that the Secretary of State has until 23 September 2016 to lodge her acknowledgment of service in this case. However, in this case my instructions are not to lodge an Acknowledgment of Service and to allow the Court to consider the matter without one. This is because my client considers that the law in this area is settled by the case of Cart v Upper Tribunal [2011] UKSC 28. I understand that if the Court takes the view that it would be assisted by a detailed response from the Secretary of State it will contact GLD requesting that the Secretary of State provide an acknowledgment of Service before considering the question of permission and I therefore reserve the right to lodge such an acknowledgment at a future date should the need arise’.
On 2 February 2017, Gilbart J refused permission, stating that it was “entirely within the UTJ's discretion in terms of her case management powers to decline to permit the amendment.” A appealed. Sales LJ, as he then was, granted permission to appeal against the Admin Crt's refusal to grant permission to issue JR proceedings on 28 December 2017, subsequently amended on 23 March 2018 to add the Upper Tribunal (Immigration and Asylum Chamber) & anr as Respondent for SSHD. Sales LJ identified an important point of principle, namely that a lesser standard of proof should have been applied in A's asylum claim, and may consequently lead to a different outcome. The grant required that the parties should promptly invite the Admin Crt to consider assigning the claim for JR to UT with a view to the claim being heard together with the appeal for which permission had already been granted, on a “rolled up basis” with the appeal to follow in the event that the UT decided that the previous refusal of the UT for PTA on this part of the case should be quashed.
Since no request was made by the UT or SSHD for a hearing, nor any request made for the JR to be assigned to the UT in accordance with the observations of Sales LJ, the decision to refuse permission to amend the grounds was quashed by HHJ Pearce pursuant to CPR 54.7A(9) on 20 April 2018. The order was silent as to costs.
On 10 May 2018, A applied to vary HHJ Pearce's order to award him his costs of the JR claim and detailed assessment of his legal aid costs. The SSHD filed written submissions in response on 21 June 2018 resisting an order for costs against him but without objection to an order that there should be a detailed assessment of A's legal aid costs.
On 27 July 2018 Moulder J. ordered detailed assessment of A's legally aided costs, but made no other order as to costs, reasoning that: (i) SSHD was an interested party, not the Defendant. He had not taken any step in the litigation and was not liable for A's costs, citing R (on the application of Gudanaviciene) v Immigration and Asylum FTT [2017] EWCA Civ 352; (ii) the UT had made no appearance before the Admin Crt and it was not suggested that there was any improper behaviour on its part. This is the order, made before the decision in Faqiri, which is the subject of this appeal.
On 10 July 2019, the single judge, Hickinbottom LJ, who had given the lead judgement in Faqiri, gave A leave to appeal, it being “arguable that the approach of the Admin Crt in respect of the costs order was wrong.” On 27 November 2019, he granted an extension of time to the SSHD to file a Respondent's Notice and skeleton argument seeking an order that “the costs of the claim in the Administrative Court be treated as costs in the appeal before the Upper Tribunal” and directed the appeal and cross appeal to be heard together.
The appeal was listed for hearing on 5 February 2020. In a “second supplemental” skeleton argument dated 3 February, A raised the ‘jurisdictional issue’ for the first time. On 4 February, the Court adjourned the hearing listed for the following day to enable SSHD to “research and argue” the same, reserving the costs thrown away.
In the meantime, and not without significance in terms of the order being sought by each party in this case, on the remittal of A's case to the UT, and following 2 directions/case management hearings, the appeal was resolved by SSHD on 25 September, and then A on 8 October 2018, withdrawing their respective appeals against the FTT determination. The order confirming A's leave to remain was recorded on 31 October 2018.
The Appeal
Legislative Framework
The routes of appeal in these cases are well established. Section 11 of the Tribunals Courts and Enforcement Act 2007 (“TCEA”) provides a right of appeal to the UT on a point of law arising from a decision of the FTT, but only with the permission of the FTT or the UT. Section 13 (1) provides a further right of appeal from the UT to the Court of Appeal on a point of law, save for an ‘excluded decision’ which includes a decision of the UT refusing PTA from the FTT to the UT (s 13(8) (c)) which is instead subject to JR under a modified procedure in CPR Part 54.7(A), a “Cart JR”, following R (Cart & ors) v the Upper Tribunal [2011] UKSC 28.
Where PTA for JR is granted, then by CPR 54.7A(9)(a) if the UT or any interested party wishes there to be a hearing of the substantive application, it must make its request for such a hearing no later than 14 days after service of the order granting permission; and (b) if no request for a hearing is made within that period, the court will make a final order quashing the refusal of PTA without a further hearing. If no further hearing occurs the substantive appeal will be remitted to the UT.
The costs in the Admin Crt are governed by s.51(1) of the Senior Courts Act 1981 (“SCA”), viz:
“Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in –
(a) the civil division of the Court of Appeal
(b) the High Court;
(c) any county court
… shall be in the discretion of the court”.
By s.51(2) rules of the court ‘ may make provision for regulating matters relating to the costs of those proceedings’.
CPR 44 provides the “General Rules about Costs”. By CPR 44.2:
“(2) If the court decides to make an order...
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