R (on the application of Soreefan and Others) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice McCloskey,Lindsley |
| Judgment Date | 13 October 2015 |
| Neutral Citation | [2015] UKUT 594 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 13 October 2015 |
[2015] UKUT 594 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
The Queen on the application of
Having considered all documents lodged and having further considered the oral and written submissions of Mr C Emezie (of Dylan, Conrad, Kreolle Solicitors) and Ms S Reeves, of Counsel, instructed by the Government Legal Department in the first two cases (only) at hearings at Field House, London on 22 July and 09 September 2015
R (on the application of Soreefan and Others) v Secretary of State for the Home Department (judicial review — costs — Court of Appeal)
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(i) An appeal lies to the Court of Appeal against a costs order of the Upper Tribunal made in immigration judicial review proceedings.
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(ii) In determining cost issues the Upper Tribunal will apply M v London Borough of Croydon [2012] EWCA Civ 595 .
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(iii) Provided that a costs decision of the Upper Tribunal is in harmony with established principles and has a tenable basis, permission to appeal to the Court of Appeal is unlikely to be granted because cost decisions involve a substantial measure of discretion dependent upon one particular factual matrix.
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(iv) In judicial review proceedings where permission to appeal is not determined at a hearing, the time limit for applying to the Upper Tribunal for permission to appeal to the Court of Appeal is one calendar month, beginning on the date immediately following the day upon which the Tribunal's substantive decision was sent and ending on the corresponding date in the immediately succeeding month.
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(v) This time limit is capable of being extended in accordance with established principles and giving effect to the overriding objective.
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(vi) Every Permission to Appeal (PTA) application must be made in writing. There is no prescribed form.
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(vii) In judicial review cases, the prescribed fee for an application for permission to appeal to the Court of Appeal is presently £45.00. Such applications do not require notice to the other parties.
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(viii) The substantive requirements for every permission to appeal application are enshrined in rule 44(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and are of cardinal importance.
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(ix) A failure to comply with rule 44(7) engages the Upper Tribunal's discretionary strike out powers under rule 8. The Tribunal will assess in particular the nature and gravity of the non-compliance and will give effect to the principles in R (SN) v SSHD (striking out – principles) IJR [2015] UKUT 227 (IAC) .
Decision of The President , The Hon. Mr Justice McCloskeyand Upper Tribunal JudgeApplications Refused
(1) This decision addresses certain issues relating to applications to the Upper Tribunal for permission to appeal to the Court of Appeal. These three cases have been selected for consideration together as they raise common issues upon which guidance is desirable.
Soreefan
(2) The framework of this case can be ascertained from the costs order of Upper Tribunal Judge Rintoul, dated 24 April 2015:
“I order that the Respondent do pay 20% of the Applicant's costs to be assessed if not agreed. I order that the Applicant pay the Respondent's costs in preparing costs submissions to be assessed if not agreed.
Reasons:
While it is correct that the applicant sent the pre-action protocol letter to the respondent at an incorrect address, it is not said that the respondent did not receive it. Further, she resisted the application in the acknowledgement of service, and a consent order was apparently proposed only after permission was granted. That said, permission was granted on only one ground out of five. The applicant was, however, compelled to renew the application at some cost to her and the respondent has agreed to reconsider and if necessary take a decision giving rise to a right of appeal. That is effectively a substantial part of what was sought.
I do however, consider that the respondent is entitled to the costs of her costs submissions, given that the applicant has unreasonably sought her full costs.”
(3) It is asserted by this Applicant's solicitors that the sequence of events thereafter was as follows:
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(a) The above order was served on them on 28 April 2015.
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(b) On 19 May 2015 the solicitors applied to the Court of Appeal for permission to appeal.
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(c) On the same date, this application was rejected.
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(d) On 20 May 2015, the Applicant's solicitors “applied”, by letter, to the Upper Tribunal for permission to appeal and, on the same date, conversed by telephone with an Upper Tribunal Lawyer.
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(e) There was a further such conversation on 08 June 2015.
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(f) By a letter dated 01 July 2015 an Upper Tribunal Lawyer notified the Applicant's solicitors that their application for permission to appeal would be listed on 21 July 2015. The letter further stated:
“Can you kindly comply with Rule 44(7) of Tribunal Procedure (Upper Tribunal) Rules 2008 and supply further details including (i) reasons why the application is lodged out of time, (ii) identify the alleged error of law in the decision and (iii) state the result you are seeking ….
In addition please provide your written submissions to the Tribunal as to whether a fee is payable in respect of your application for permission to appeal; such submissions to be received by the Tribunal not later than 14 July 2015.”
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(g) The Respondent's representative (hereinafter the “GLD”) was notified of the hearing by letter dated 03 July 2015.
(4) The Applicant's solicitors did nothing in response to the notification/direction noted in (f) above. As a result, a wasted hearing materialised on 21 July 2015 and an adjournment ensued. The Tribunal ordered as follows:
[2] The hearing date of 21 July 2015 is vacated.
[3] There will be a re-listing before the same panel of judges at 10.00hrs on 09 September 2015. In making this direction the convenience of both parties' representatives has been specifically considered.
[4] The Respondent's skeleton argument will be filed and served by 14 August 2015. This will include the Respondent's representations concerning the costs thrown away by the adjournment on 21 July 2015 and any application for a wasted costs order against the Applicant's solicitors.
[5] The Applicant's solicitors will make any reply, in writing, by 28 August 2015.
[6] Costs are reserved.
(5) Subsequently, the “Applicant's Response to Application for a Wasted Costs Order” was lodged. Further, the Respondent's skeleton argument was received. The hearing giving rise to the decision in these conjoined cases was ultimately conducted on 09 September 2015.
Anyamene
(6) By order of Upper Tribunal Judge Hanson dated 17 April 2015 it was determined that there be no order as to costs inter-partes. The framework of this case is evident from the terms of the Judge's order:
- On the 25th April 2013 the applicant issued his challenge to the refusal to grant leave to remain dated 7th March 2013. The remedies sought are set out in section 6 of the claim form. [2] Mr Justice Silber refused permission on the papers, and found the claim to be totally without merit, on 22nd October 2013. The renewed application came before Upper Tribunal Judge Latter on 15th July 2014 when permission was granted. The claim was compromised by a consent order sealed on 12th December 2014 granting permission to the applicant to withdraw the claim on the basis the respondent had agreed to reconsider the application for leave to remain and make a further decision within three months of the date of the consent order. [3] Judge Latter found there to be an arguable case. It has not been found the impugned decision is unlawful. The respondent has adopted a pragmatic view leading to settlement. The respondent contends in a letter dated 7th January 2015 that the applicant failed to comply with the PAP and relied upon new material to achieve the grant of permission which was not before the decision maker. [4] The terms of the consent order only provide an agreement to reconsider meaning the applicant has substantially failed to achieve the remedies sought in the claim. [5] The appropriate award is for there to be no order as to costs.
The sequence of events was thereafter as in Soreefan.
Nwanko
(7) By order of Upper Tribunal Judge Rintoul dated 15 June 2015 it was determined that there be no order as to costs inter-partes. The framework of this case emerges from the Judge's order:
- The respondent's submissions are out of time, but equally the applicant has not replied thereto as provided for by the consent order, nor indicated that he is prejudiced by the late service. [2] It is accepted that this is a case which falls into the first category identified in M v Croydon [2012] EWCA Civ 595 in that the applicant did obtain the remedy sought, but equally the pre-action protocol letter was sent to an incorrect address. Part of the claim was conceded in the response thereto of 19 February 2014. I consider that, given the failure to correspond with the respondent thereafter, and given that there would have been a right to challenge a continuing failure to review in the light of the response to the PAP, the commencement of proceedings was premature and not necessary; this was not a straightforward case given the previous findings of the First-tier Tribunal. In all the circumstances of this case, I am satisfied that the appropriate order is that there be no order for costs. [3] I make no award in respect of the respondent's costs submissions. These are out of time, and while I have admitted them, no evidence is produced to support the claim as to when the consent order was served on the...
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Upper Tribunal (Immigration and asylum chamber), 2015-10-28, [2015] UKUT 594 (IAC) (R (on the application of Soreefan and Others) v Secretary of State for the Home Department (judicial review – costs – Court of Appeal (IJR))
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