ABB, R (on the application of) v Secretary of State for the Home Department

LORD JUSTICE BAKER :

1. By an order dated 5 August 2024, at the conclusion of judicial review proceedings brought by a man hereafter referred to as “ABB” in respect of a decision refusing him a visa to live in this country, the Secretary of State for the Home Department was ordered to pay 75% of ABB’s reasonable costs of the proceedings. ABB now appeals against that decision, arguing that he should be awarded his costs in full. Background

2. Following the Russian invasion of Ukraine in February 2022, the UK government established two schemes under the Immigration Rules to enable people from Ukraine to come to this country. The first, the Ukraine Family Scheme (“UFS”), which was closed in 2024, was designed to enable Ukrainian nationals, and certain members of their families, to join other family members resident in the UK. The second, the Homes for Ukraine Scheme (“HUSS”), which remains open, was designed to enable individual sponsors, not necessarily relatives, to accommodate Ukrainian nationals and defined family members in their homes in this country.

3. The rules governing the two schemes are located in an Appendix to the Immigration Rules. For the purposes of this judgment, it is only necessary to set out the requirements of the HUSS as to nationality. As originally drafted, they provided: “ Nationality requirement for the Homes for Ukraine Sponsorship Scheme UKR 17.1. The applicant must be either: (a) a Ukrainian national; or (b) part of an immediate family group (meaning the group set out in UKR 18.1.) which includes an immediate family member who is a Ukrainian national who qualifies under the Homes for Ukraine Sponsorship Scheme. Relationship requirement for a family member under the Homes for Ukraine Sponsorship Scheme UKR 18.1. If the applicant is not a Ukrainian national, they must be the immediate family member of a Ukrainian national who qualifies under the Homes for Ukraine Sponsorship Scheme, meaning a: (a) partner of the Ukrainian national; …. UKR 18.2. An applicant applying as a partner, fiancé(e) or proposed civil partner must be in a genuine and subsisting relationship with the Ukrainian national which commenced before 1 January 2022.” In August 2022, UKR 17(1)(b) was amended to read: “part of an immediate family group (meaning the group set out in UKR 18.1.) which includes an immediate family member who is a Ukrainian national who has been granted under or is applying under and qualifies under the Homes for Ukraine Sponsorship Scheme.”

4. Under the version of the HUSS in force at the material time, UKR 20.1 provided that, if the application was approved, the applicant would be granted permission to enter for a period of up to 36 months. The same maximum period was prescribed under the UFS.

5. ABB is an Afghan national who, prior to the Russian invasion, was living in Ukraine. It is his case that he was a fifth-year medical university student and married to a Ukrainian national. The day before the invasion, his wife travelled to Odessa to visit her parents. Thereafter he lost contact with her. In the following days, he travelled from Ukraine to Poland where he was accommodated in a refugee camp.

6. ABB has two brothers living in the UK. On 7 March 2022, he submitted an application for entry clearance under the UFS to join the elder brother in this country. On 9 April 2022 (that is to say, before the amendment described in the previous paragraph), he submitted an application for entry clearance under the HUSS to join a named sponsor in this country. It is relevant to note that in the UFS application his relationship status was described as “separated” and that he was unable to provide a copy of his wife’s passport “because we had an argument shortly before the war started in Ukraine and we separated, my wife went to live with her parents in Odessa. I have lost my phone and all contacts and I also lost contact with her. I do not know if she is alive or not and I do not have any number to reach her.” On the HUSS application form, however, his relationship status was described as “married or a civil partner”. The reason given for not being able to provide proof of her identity was: “Unfortunately, I lost my wife in the war. I was at the university and she at work.”

7. In a statement dated 25 May 2022 and submitted in support of his applications, ABB described his background in Afghanistan, his journey to Ukraine, his marriage, his flight after the invasion, his circumstances in Poland, and the fact that he had lost contact with his wife and had approached the Red Cross in an attempt to find her. He described how he had completed the UFS application with the assistance of a Pakistani man (“Abdul”) whom he met in the hostel in Poland and with whom he communicated in English and Urdu. In the statement, he said: “I didn’t read the application through before it was submitted. I wish to clarify that my wife and I were physically separated because of the war in Ukraine, not legally separated and our relationship is subsisting. Our plan was to get to safety with her parents, but we didn’t know where we would ultimately go. I never thought we would be split up and lose contact with each other.” He then described how he had met his HUSS sponsor through the internet and that he had helped him complete the form. He said that the information on that form was “slightly jumbled”.

8. On 6 July 2022, the SSHD refused the applications. On 19 July, ABB filed a claim for judicial review of the refusal. On 13 September, permission to bring the claim was granted on three of five grounds pleaded. On 26 October 2022, after correspondence between the parties, the SSHD informed ABB’s solicitors that she had withdrawn her decision and proposed a new timeframe for a new decision. On 6 December 2022, an order was made providing for the judicial review to be withdrawn on the basis that a new decision would be made by 12 December 2022.

9. In the event, no decision was made by that date. On 3 and 10 February 2023, ABB, who by that date had moved from Poland to Luxembourg, was interviewed by a Home Office Entry Clearance Officer about discrepancies in his application forms relating to his relationship with his wife. Asked why, when completing the UFS form, he had told Abdul that his marital status was “separated”, his response was recorded as follows: “Abdul chose this, the applicant explained what had happened between him and his wife – they were not separated in marriage just separated due to their circumstances at the time Odessa and Kyiv.”

10. On 6 April 2023, the SSHD refused the applications again. In giving reasons for refusing the HUSS application, the decision maker said: “You are not a Ukrainian national and I am not satisfied you meet the relationship requirements under the Homes for Ukraine Sponsorship Scheme. In order to qualify, you must be either a partner, fiancé or proposed civil partner of a qualifying Ukrainian national. As part of this, you must demonstrate that your relationship is both genuine and subsisting …. It is not accepted your relationship is subsisting for the reasons set out below.” The decision letter proceeded to give details of discrepancies in ABB’s various statements about his relationship with his wife.

11. On 17 May 2023, ABB’s solicitors sent a letter before claim to the SSHD under the pre-action protocol for judicial review (‘PAP’), challenging the decision dated 6 April 2023 refusing to grant ABB leave to enter the UK, and putting forward seven grounds. Grounds 1 and 2 asserted that the decision was unlawful because the applicant met the requirements of the two schemes, the HUSS and UFS respectively. Under ground 3, headed “Unlawful assessment of credibility”, the letter set out a detailed challenge to the SSHD’s conclusion that ABB’s relationship with his wife was not subsisting. It was contended that “ the SSHD’s failure to inform the applicant that she was minded to find his relationship was no longer subsisting and to provide him the reasons for this, prior to issuing a refusal, in order to give the applicant an opportunity to address the SSHD’s concerns is unlawful”, that the assessment of the relationship was unlawful, and that the SSHD should “urgently reverse her decision”. Under ground 4, it was asserted that the refusals to grant ABB a visa on the basis that he was not a Ukrainian national were discriminatory and in breach of Article 14 ECHR. It was argued that (1) he had been treated differently from persons in various analogous situations (including, for example, a Ukrainian national who qualified for a visa under the UFS or HUSS because he was ordinarily resident in Ukraine at the relevant date and a qualifying member of the family of a British national); (2) the difference in treatment was on grounds of nationality, and (3) there was no objective justification for the different treatment. Under ground 5, it was claimed that the failure to grant the applicant a visa was in breach of Article 8 ECHR. Under ground 6, it was said that ABB’s request for entry fell to be granted even if he did not meet the requirements of the Immigration Rules as an exercise of the SSHD’s discretion and that she had failed to properly consider the exercise of her discretion and/or failed to take relevant matters into account. Under ground 7, it was contended that the SSHD had failed to disclose documents and that the failure rendered the decision to refuse a visa unlawful.

12. The letter before claim was accompanied by a further statement from ABB, describing his present circumstances in the camp in Luxembourg and his mental health difficulties, addressing the SSHD’s assertions about discrepancies in his statements about his relationship with his wife, giving details of his attempts to find her through the Red Cross, and exhibiting various documents including screenshots which were said to corroborate his account.

13. The provisions in the PAP dealing with a letter of response to a letter before claim include the following requirements: “20. Defendants should normally respond within 14 days using the standard format at Annex B. Failure to do so will be taken into account by the court and sanctions may be imposed unless there are good reasons. …

21. Wh ere it is not possible to reply within the proposed time limit, the defendant should send an interim reply and propose a reasonable extension, giving a date by which the defendant expects to respond substantively. Where an extension is sought, reasons should be given and, where required, additional information requested….”

14. In this case, however, the SSHD did not serve a letter of response in accordance with the PAP. Several weeks passed, during which, without giving reasons, she asked ABB’s solicitors on two occasions to agree to an extension of time, which they refused.

15. On 22 June 2022, five weeks after sending the letter of claim, ABB’s solicitors issued the second judicial review claim, putting forward six grounds, which were in substance the same as those in the PAP letter before claim but couched in slightly different terms: (1) The finding that ABB was not in a subsisting relationship with his wife when she went missing was unlawful. (2) The decision was unlawful because ABB meets the requirements of the HUSS Immigration Rules. (3) The decision was unlawful because ABB meets the requirements of the UFS. (4) The refusal to grant ABB a visa was discriminatory and in breach of Article 14 ECHR. (5) The failure to grant ABB a visa was in breach of Article 8 ECHR. (6) The refusal to exercise discretion was unlawful and the SSHD took into account irrelevant matters and failed to take into account relevant matters, including in particular the alleged unjustified difference in treatment on the grounds of nationality.

16. On 28 June, the SSHD served a PAP letter of response, maintaining the refusal decision, saying: “The Secretary of State has reviewed her decision of 06 April 2023 in light of the representations raised in your Pre-Action Protocol (PAP) letter dated 17 May 2023 and is satisfied that the decisions are in accordance with the law.” She set out a response to the grounds in the letter before claim, in the course of which she said she was “satisfied that the decision maker was correct to conclude that your client’s relationship with his wife is not subsisting given the discrepancies detailed above.”

17. On 21 July, the SSHD filed an Acknowledgement of Service and Summary Grounds of Defence. In respect of ground 1, it was asserted that “the finding of fact by SSHD that the Applicant’s relationship with his wife was not subsisting at the time of the application is entirely rational and lawful. The Applicant submitted application forms admitting the relationship had broken down. This matter was put to him in interview. SSHD has not accepted the explanation. The Applicant really merely disagrees with the decision.” It was conceded that grounds 2 and 3 were dependent on ground 1 being successful and that, if ground 1 was successful, permission should be granted on those grounds as well, “albeit that SSHD will contest the issue at the substantive hearing.” In respect of the remaining grounds, the SSHD contended that the decision was not within the ambit of Article 8 and so Article 14 did not bite; that in any event ABB was not in an analogous position to a Ukrainian national and/or the difference in treatment was justified; that insofar as there was any breach of Article 8 it was proportionate and lawful, and that all material considerations had been taken into account.

18. On 14 September 2023, permission was granted to bring the second judicial review claim.

19. On 16 October 2023, the SSHD applied for an extension of time to file a Defence, giving the following explanation: “The SSHD is considering some of the points made in the Applicant's judicial review grounds. The SSHD intends to issue a supplementary decision letter and (if the decision under challenge is maintained) file detailed grounds of defence within 14 days…. The SSHD is concerned that if she does not respond the claim may be allowed on the basis that the points made in the judicial review grounds have not been answered and without the full facts. The Upper Tribunal Procedure Rules 2008 did envisage that the Upper Tribunal should have the benefit of the SSHD’s response to all contentions advanced by the Applicant.” The application for an extension of time was granted on 24 October.

20. On 26 October, the SSHD wrote to ABB with a list of further questions about his relationship with his wife. On 30 October, the SSHD applied for a further extension of time. In the application, she stated that she intended to issue a supplementary decision letter and, if the decision under challenge was maintained, file detailed grounds of defence within seven days of receiving the applicant’s answers. The application continued: “Upon further consideration the SSHD is prepared to concede Ground 2 (the decision is unlawful because the Applicant meets the requirements of the Homes for Ukraine Scheme Immigration Rules) subject to the outcome of the reconsideration of the Applicant’s Ukraine Family Scheme application, which is relevant to Ground 1. In the event that the SSHD finds upon reconsideration that the Applicant was in a subsisting relationship with his wife at the date he left Ukraine then she is prepared to grant the Applicant leave to enter and this judicial review claim will become academic. In light of the above concessions made by the SSHD this judicial review claim now turns solely on Ground 1 (the finding that the Applicant was not in a subsisting relationship with his wife when she went missing is unlawful) and Ground 5 (the Article 8 claim). Grounds 3, 4 and 6 are no longer relevant.”

21. On the same date, the Government Legal Department (“GLD”) wrote to ABB’s solicitors in the same terms, and put a further question. On 6 November 2023, ABB’s solicitors responded to the SSHD’s questions posed in the letters of 26 and 30 October.

22. On 14 November, the GLD wrote to ABB’s solicitors in the following terms: “The SSHD is prepared to accept that, on the evidence now presented, your client’s medical circumstances are such that there are compelling and compassionate circumstances warranting a grant of leave outside of the Immigration Rules. Whilst your client would not succeed under the Immigration Rules for either of the Ukraine Schemes as currently drafted, in the specific circumstances of his case, he is prepared to exercise his discretion to grant entry clearance outside of the Immigration Rules. A visa will be issued to the Applicant as soon as reasonably practicable. I am instructed to invite the Applicant to withdraw his application for judicial review challenging the refusal of entry clearance under the Ukraine Family Scheme, Homes for Ukraine Sponsorship Scheme or outside of the Immigration Rules on the basis of the terms as sent out in the enclosed draft consent order. In respect of costs, the SSHD agrees to pay 50% of the Applicant’s reasonable legal costs on the standard basis in light of the concession as to ground 2 of the claim. The grant of leave, however, only arises upon the provision of additional information which now satisfies the SSHD. As such, the SSHD resists any order for 100% of your client’s costs to be paid. There has been success on only one of six grounds of claim, and relief has been obtained in light of information provided after the decision under challenge was made. If the order as to costs is unacceptable, the SSHD is content that the issue of costs goes to written submissions.”

23. On 20 November, the Home Office sent an email to ABB, stating: “On 06 April 2023 your application under the Homes for Ukraine was refused. Having now considered all the representation and evidence that you have provided, including post-decision material, it has been decided to reconsider that decision. You do not meet the requirements for a grant of leave under the Homes for Ukraine scheme, however a decision has been made in light of the exceptional, compelling and compassionate circumstances of your application to grant you entry clearance outside of the immigration rules for 36 months.”

24. On 21 November, ABB’s solicitors responded stating that the SSHD’s position on costs was not reasonable and that their client should be awarded all his costs. They made a number of detailed points in the course of which they noted that the SSHD had been given evidence about ABB’s “very poor mental health” either prior to the decision or at the pre-action stage and that she had failed to comply with the PAP despite being granted a very extended timeframe. The decision had only been reversed shortly before the full hearing after significant costs had been incurred.

25. On 30 November, a consent order was filed in the following terms: “Upon the Respondent agreeing to grant the Applicant’s application dated 9 April 2022 for entry clearance And upon the Respondent issuing the Applicant Leave Outside the Rules on 29 November 2023 And upon the Respondent agreeing to issue the Applicant with a visa as soon as reasonably practicable And upon the parties agreeing this challenge can be resolved by consent save for ongoing negotiations with respect to the issue of costs By consent, it is ordered that (1) The hearing listed for 5 and 6 December 2023 is vacated. (2) Costs reserved.”

26. On 13 March 2024, the solicitor in the GLD wrote to ABB’s solicitors again, saying: “On review, my previous letter does not accurately reflect the reasons for the concession. Whilst your client’s medical evidence was considered, it would not have been sufficient on its own for the SSHD to have granted leave to remain. The reason for the grant of leave was that the SSHD is prepared to accept that, on the evidence now presented, your client was in a subsisting relationship with his wife around the time he left Ukraine. Whilst your client would not succeed under the Immigration Rules for either of the Ukraine Schemes as currently drafted, in the specific circumstances of his case, he is prepared to exercise his discretion to grant leave to remain outside of the Immigration Rules bearing in mind the way in which the Immigration Rules were drafted at the time of his application. The SSHD concedes that the Rules were previously ambiguous as to whether or not your client had to apply with or after his Ukrainian wife and is prepared to exercise his discretion in your client’s favour in light of that. I apologise for this confusion, which was due to a misunderstanding between Home Office officials giving instructions as to the reasons for the decision. For the avoidance of doubt, all relevant communications in this respect are subject to legal privilege, which are not waived.”

27. As I understood the submissions to this Court, the ambiguity in the rules mentioned in the letter dated 13 March 2024 was a reference to paragraph UKR 17(1)(b) of the HUSS which, as noted above, had been amended in August 2022 after ABB had applied under the schemes.

28. Under a further consent order dated 12 April 2024, the applicant was given permission to withdraw the judicial review application and directions were given for the issue of costs to be determined on paper. Written submissions were duly filed, and on 5 August 2024 UT Judge Kebede ordered the SSHD to pay 75% of ABB’s reasonable costs, to be assessed if not agreed.

29. Before setting out the reasons for her decision, I shall summarise the relevant legal principles to be applied when making a costs decision in these circumstances. The Law

30. CPR 44.2(2) provides: "If the court decides to make an order about costs (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.” CPR 44.2(4) further provides: "In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.”

31. The principles applicable when determining costs applications in judicial review proceedings are well defined. They have been considered by this Court on a number of occasions, in particular in R (Bahta & Others) v SSHD and Others [2011] EWCA Civ 895 (“ Bahta ”), R (M) v Croydon LBC [2012] EWCA Civ 595 , [2012] 1 W.L.R. 2607 (“ M v Croydon ”), and R (Tesfay & Ors) v Secretary of State for the Home Department [2016] EWCA Civ 415 (“ Tesfay ”).

32. In Bahta , Pill LJ emphasised the importance of compliance with the pre-action protocol: “64. … what needs to be underlined is the starting point in the CPR that a successful claimant is entitled to his costs and the now recognised importance of complying with Pre-Action Protocols. These are intended to prevent litigation and facilitate and encourage parties to settle proceedings, including judicial review proceedings, if at all possible….

65. When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol….”

33. In “ M v Croydon ”, Lord Neuberger of Abbotsbury MR identified three categories of case which have been applied in subsequent decisions : “60. … in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant’s claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

61. In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, the defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued: that is one of the main points of the pre-action protocols….

62. In case (ii), when deciding how to allocate liability for costs after a trial, the court will normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Given that there will have been a hearing, the court will be in a reasonably good position to make findings on such questions. However, where there has been a settlement, the court will, at least normally, be in a significantly worse position to make findings on such issues than where the case has been fought out. In many such cases, the court will be able to form a view as to the appropriate costs order based on such issues; in other cases, it will be much more difficult. I would accept the argument 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 said for concluding that there is no order for costs…. However, where there is not a clear winner, so much would depend on the particular facts. In some such 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….

63. In case (iii), the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases, it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.”

34. In Tesfay , Lloyd-Jones LJ, with whom other members of the Court agreed, observed (at paragraph 57): “At the heart of this dispute as to costs lies the question of what should be considered a success in public law litigation. Whereas in a settlement of private law litigation it is usually possible to identify with some precision the extent to which a party has been vindicated, the position following compromise of public law litigation is often not so clear cut. Proceedings for judicial review are brought by persons dissatisfied with decisions of public bodies. However, the courts are not the decision makers and often in public law the most that can be achieved is an order that the decision maker reconsider on a correct legal basis. That may not lead to ultimate victory for the applicant because the new decision may be a lawful decision against the interests of the applicant. Nevertheless, to achieve an order for reconsideration will often be a substantial achievement. Success in public law proceedings must be assessed not only by reference to what was sought and the basis on which it was sought and on which it was opposed, but also by reference to what was achievable.” At paragraph 67, he added: “In public law litigation securing reconsideration of a decision which is challenged is usually considered a success for costs purposes. The fact that following reconsideration a decision may be taken which is against the interests of the applicant is not a reason for refusing costs on the judicial review. As Mr. Knafler put it, in a striking figure of speech, the applicant faced with a new decision against him may thereafter “stick or twist”. The applicant may accept that he cannot challenge the new decision and simply seek his costs of the judicial review. Alternatively, he may challenge the new decision. The fact that he follows the latter course should not normally affect the costs of securing the reconsideration.” The UT judge’s reasons

35. UTJ Kebede ordered the SSHD to pay 75% of the applicant’s costs, to be assessed if not agreed. Her reasons were as follows: “(2) The Respondent’s position is that the Tribunal should make no order as to costs in this case, or at the highest that the Respondent pay 50% of the Applicant’s costs minus the SSHD’s costs of preparing the costs submissions. That is on the grounds that the Respondent’s decision to grant entry clearance to the Applicant was made only after further evidence was received/ questions answered in relation to the Applicant’s marriage and other matters which led to the SSHD changing her position. The Applicant’s position is that the Respondent should pay all of his costs as he had achieved the remedy he had sought and that any further costs incurred were as a result of the Respondent failing to take the opportunity offered to put further questions to the Applicant prior to the decision being made. (3) Having read the submissions carefully and considered the basis upon which the Respondent changed her position, it seems to me that there is some merit in the Respondent’s view that post-decision information was relevant to the decision to grant entry clearance. However, having said that, there is also some merit in the assertions made by the Applicant about delays causing an increase in costs. In all the circumstances, whilst the Applicant can, to some extent, be regarded as the ‘winner’, applying the principles in M v London Borough of Croydon [2012] EWCA Civ 595 , there are matters properly raised by the Respondent which reduce the Applicant’s entitlement to costs. It seems to me that the most appropriate course would be for the Applicant to be awarded 75% of his reasonable costs, to be assessed if not agreed.” The appeal

36. Three grounds of appeal were advanced on behalf of ABB: (1) The judge failed to properly direct herself that the SSHD bore a heavy burden in demonstrating that the Appellant should not get all his costs given this was a ‘Category 1 M v Croydon ’ case where the Appellant was the successful party, complied with the PAP, and the SSHD did not comply with the PAP. (2) Even if there was ‘some merit’ in the assertion that the post-decision evidence was ‘relevant’ to the reversal of the challenged decision, as the judge found, this was not a ‘good reason’ to reduce the Appellant’s costs on the facts of his case and the judge’s apparent finding that this was a good reason for reducing costs is flawed in principle and failed to properly take into account relevant matters. (3) For similar reasons as set out in grounds 1 and 2, the judge failed to properly balance the relevant factors in the scale in deciding whether costs should properly be reduced.

37. Central to Ms Knorr’s argument on behalf of ABB was her contention that this case fell within the first category identified in M v Croydon . The general principle was that a successful party who has obtained relief should receive his costs, including where that is by way of settlement, and that a court should not depart from that approach other than with good reason. Here, ABB was the successful party, having achieved his primary remedy of the grant of a visa. The SSHD bore the burden of showing departure from the general rule was appropriate, and that burden ‘will be a heavy one’ where, as here, a successful applicant has complied with the PAP and the SSHD has not.

38. On behalf of ABB, Ms Knorr emphasised several features of the conduct of proceedings which, had they been considered by the judge, ought to have led to her client receiving his costs in full. Through his solicitors, ABB had complied with the PAP by sending a letter identifying errors on the SSHD’s decision which were subsequently included in the claim. The SSHD, however, had failed to comply with the PAP by responding to the letter at all, despite being given five weeks to do so before the claim was issued. When the response was sent after the claim was issued, the decision under challenge was maintained. There was no engagement with the arguments in the PAP letter before claim. It was only at a later stage that further questions had been asked which, when answered, led the SSHD to change her decision. The information on which those questions were asked was known to the SSHD prior to the decision or, at the latest, after receiving the PAP letter before claim. The SSHD had given no reason for failing to ask the questions under the PAP before the expense of issuing the claim was incurred. It was only after permission was granted and when detailed grounds were due that the SSHD belatedly decided to reconsider. Ms Knorr submitted that this should be decisive of costs in all the circumstances of this case because the SSHD had every opportunity to agree to reconsider at the PAP stage, and it was at that stage that concessions should have been made if the SSHD wished to avoid an adverse costs order. The judge had therefore been wrong to reduce the costs on the grounds that there was “some merit in the Respondent’s view that post-decision information was relevant to the decision to grant entry clearance”.

39. The outcome of the proceedings was not merely a concession or order that the decision whether to grant a visa should be reconsidered but rather a full concession that the visa should be granted. If, as this Court observed in Tesfay , “in public law litigation securing reconsideration of a decision which is challenged is usually considered a success for costs purposes”, ABB had been even more successful in securing a complete reversal of the decision and the grant of the visa.

40. The SSHD contended that the UT’s order on costs should be upheld for the reasons given by the judge. In addition, she filed a Respondent’s Notice inviting this Court to uphold the decision on the following additional grounds: (1) The decision under challenge was not withdrawn or conceded to be unlawful; (2) The Appellant did not obtain all the relief sought; (3) The Appellant did not ‘succeed’ in respect of any, or alternatively, not all, of the grounds pursued; (4) The majority of the work done was in respect of grounds upon which the Appellant did not succeed; (5) There was no ‘delay’ in settlement: (i) The Appellant answered SSHD’s final questions on 6 November 2023. There was an agreement to grant leave on 14 November 2023; (ii) Even if there was some delay, a party is entitled to settle at any time and should be encouraged to do so. It was not a relevant factor pointing towards costs being awarded to the Appellant in this case.

41. Responding to the appeal on behalf of the SSHD, Mr Holborn submitted, as he had before the UT, that the claim fell into the second or third category of case identified in M v Croydon , namely a case in which the applicant had only succeeded in part or where the claim had been settled on terms that did not reflect the remedy sought. He drew attention to the judge’s observation that ABB “can, to some extent , be regarded as ‘the winner’” (emphasis added). In the alternative, Mr Holborn submitted that, if this was a category 1 case, there was a good reason to depart from the general rule. He emphasised that the decision under challenge was never withdrawn or conceded to be unlawful. Instead, it had been decided that circumstances warranted a grant of leave outside the Rules. ABB had provided further evidence after the decision, namely “extensive material” within the PAP letter in May 2023 and answers to further questions in November 2023. The SSHD contended that this further material “was sufficient that the SSHD changed his position as to the facts of ABB’s case. None of this material had been before the decision-maker, when the decision under challenge was made.”

42. Mr Holborn submitted that, to the extent the claim was successful, that success was no more than partial and it would be unfair for ABB to be granted all of his costs. The only contested ground upon which there was any measure of success was ground 1 and even then for different reasons, namely information provided after the decision under challenge. But this was not a case merely about whether ABB’s relationship with his wife was subsisting. Most of the remedies sought in the claim, including declarations, were not achieved. Grounds 2 and 3 were not contested, once the ambiguity in the terms of the HUSS rules was acknowledged. There was no success on grounds 4 to 6, which encompassed a significant portion of the work on the claim. Mr Holborn pointed out that the arguments advanced under those grounds were subsequently pursued unsuccessfully in another case before the UT, R (LR) v SSHD [2024] UKUT 00236 (IAC) . In particular, the UT held in that case that the discrimination between the applicant as an Afghan national compared to a Ukraine national was objectively justified. Mr Holborn accepted a point made by Yip LJ in the course of the hearing that in her reasons the UT Judge did not mention the points he had raised about the Article 8 and 14 grounds, but he relied on the statement in the judgment that she had “read the submissions carefully and considered the basis upon which the Respondent changed her position.”

43. Ms Knorr’s response to these Respondent’s Notice arguments was that it was not correct to reduce costs on the grounds that the appellant had not succeeded on some of the grounds. Having achieved the primary remedy – the effective reversal of the decision not to grant him a visa – there was no need for him to pursue additional remedies. Ms Knorr further submitted that it was the wrong approach to invite the court to assess whether the other grounds for judicial review were likely to succeed. That approach had been adopted at one stage under a decision of the Administrative Court in R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258, but, as this Court made clear in R (Emezie) v SSHD [2013] EWCA Civ 733 , it has been superseded by the principles set out in M v Croydon . At paragraph 4 of his judgment in Emezie , Sir Stanley Burnton said: “ Boxall , a decision of the Administrative Court, had indicated that the test for an award of costs in favour of a claimant when a claim was settled was whether he would have been bound to succeed at trial. That test must be regarded as superseded. The starting point now is whether the claimant has achieved what he sought in his claim.”

44. Ms Knorr further submitted that, in any event, her client’s truthful account about his relationship with his wife, which was ultimately accepted by the SSHD, was relevant to every ground under the claim. It was plainly relevant to ground 2, on which, she submitted, ABB had succeeded when the SSHD conceded that the original rules had been ambiguous. It was not accepted that grounds 4 to 6 involved the majority of the work. The point had already arisen in the course of preparation for the litigation that led to the UT decision in R (LR) v SSHD . The critical development in ABB’s claim, which incurred the bulk of the costs, was the SSHD’s contention that the relationship was not subsisting. Furthermore, the assertion that there had been no delay in settlement was wrong. There was a significant delay before the SSHD decided to issue the visa. Discussion and conclusion

45. In M v Croydon at paragraph 44, when summarising the relevant principles to be applied to awards of costs after a trial, Lord Neuberger said: “any decision relating to costs is primarily a matter for the discretion of the trial judge, which means that an appellate court should normally be very slow indeed to interfere with any decision on costs. However, while wide, the discretion must be exercised rationally and in accordance with certain generally accepted principles.” Although this was identified as a principle to be applied after trial, an appellate court should be similarly reticent about interfering with an order made after proceedings are compromised by consent.

46. In this case, however, I have concluded that this Court should interfere with the UT judge’s decision and award the appellant all of his costs.

47. It is difficult to discern from the judge’s reasons which category under M v Croydon she decided applied in this case. In my view, however, it plainly fell within the first category. The purpose of ABB’s applications under the Ukraine schemes, and of his claim for judicial review, was to be allowed to enter the UK for the period of 36 months permitted under the schemes. The outcome of the claim was that he was granted entry clearance for 36 months. The fact that the grant was expressed as being “outside of the immigration rules” and that, as asserted in the Respondent’s Notice, the decision under challenge was not withdrawn or conceded to be unlawful, is irrelevant. It is notable that the outcome of the proceedings was not merely the reconsideration of his application by the SSHD but the positive grant of entry clearance. In short, he got what he wanted. He was therefore, in Lord Neuberger’s words, “wholly successful”.

48. In those circumstances, he was entitled to recover his costs in full “unless there is some good reason to the contrary” or some “special circumstances”. There was (per Pill LJ in Bhata ) a burden on the SSHD to justify any departure from the general rule and, as her predecessor failed to comply with the PAP in the five weeks between the letter before claim and the start of the proceedings, the burden was a heavy one. In my view the SSHD fell well short of discharging it.

49. In the letter dated 13 March 2024, the SSHD identified two factors which had ultimately led to the grant of entry clearance. The first was the acceptance that ABB was, after all, in a subsisting relationship with his wife. It is the SSHD’s case that the concession on this issue was made in the light of ABB’s answers to further questions posed after the start of proceedings. But no good reason has been advanced as to why those questions could not have been put to him during the PAP process. Paragraph 21 of the PAP, set out at paragraph 13 above, anticipates that there may be circumstances in which the defendant is unable to serve a letter of response to the letter before claim, and makes specific provision for the course which the defendant must follow. In this case, the SSHD did not comply with those provisions. She failed to serve an interim reply, failed to give reasons for the requested extension, and failed at that stage to request additional information.

50. The aims of the protocol are defined in paragraph 3 as being: “to enable parties to prospective claims to— (a) understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents; (b) make informed decisions as to whether and how to proceed; (c) try to settle the dispute without proceedings or reduce the issues in dispute; (d) avoid unnecessary expense and keep down the costs of resolving the dispute; and (e) support the efficient management of proceedings where litigation cannot be avoided.” If, as is maintained, the Secretary of State needed to put further questions to ABB to “understand and properly identify the issues in dispute in the proposed claim” so as to “make informed decisions as to whether and how to proceed”, it was incumbent on her to put them under the PAP process in order to “try to settle the dispute without proceedings or reduce the issues in dispute” and “avoid unnecessary expense and keep down the costs”.

51. Accordingly, I accept Ms Knorr’s argument that the judge was wrong to reduce the costs on the grounds that there was “some merit in the Respondent’s view that post-decision information was relevant to the decision to grant entry clearance”. Even if it is correct that post-decision information was relevant to the ultimate decision to grant entry clearance, that information would in all probability have been available before the judicial review claim was issued if the SSHD had complied with the PAP. No good reason has been advanced for the failure to ask the clarification questions, which are said to have elicited relevant information at the PAP stage, before the claim was issued.

52. The second factor identified by the SSHD for ultimately granting entry clearance was the recognition that, at the date when ABB submitted his application under the HUSS, the rules were ambiguous as to whether or not he had to apply with or after his Ukrainian wife. That ambiguity was well known to the SSHD long before these proceedings were started. It was the reason for the amendment to the rules in August 2022 described in paragraph 3 above.

53. As I read the UT judge’s reasons, the arguments put forward by the SSHD in respect of grounds 4, 5 and 6 played no part in her costs decision. Furthermore, I would refuse to uphold the decision on the grounds put forward in the Respondent’s Notice that the appellant did not obtain all the relief sought, that he did not “succeed” in respect of all grounds, and that the majority of the work done was in respect of the grounds for which he did not succeed. These arguments relate to issues raised in the claim under Articles 8 and 14. Those issues were plainly subsidiary matters included to buttress ABB’s primary case that the SSHD’s decision to refuse him entry clearance was wrong and should be reversed. It is commonly the case in all types of litigation that claims are put forward on several grounds. The fact that a defendant decides to concede the claim on some of the grounds does not ordinarily entitle him to set off the costs incurred on other grounds which have not been adjudicated upon. The decision in the unconnected subsequent case R (LR) v SSHD in which arguments similar to those raised in grounds 4 to 6 were rejected has no bearing on the costs issue in the present case. As this Court held in Emezie , the starting point is whether the claimant has achieved what he sought in his claim, not whether he would have been bound to succeed at trial. When a claim has been settled without requiring the court to adjudicate on the various issues, it would be an unprincipled waste of resources for the court then to embark on a post-mortem examination of the merits of those issues when assessing the claim for costs.

54. For those reasons, I would allow the appeal on grounds 1 and 2 and order that the appellant should be awarded the whole of his costs of the judicial review claim to be assessed if not agreed. LORD JUSTICE NUGEE

55. I entirely agree and am very grateful to Baker LJ for his clear and compelling judgment. I add just a few words on the practical importance in cases such as this of awarding costs in full when such an order is merited.

56. As has been frequently recognised, where a claimant is legally aided there is a stark difference between the legal aid rates payable to the claimant’s lawyers and the amounts which can be recovered at inter partes rates if an order for costs is made against the other side: see eg Re Appeals by Governing Body of JFS [2009] UKSC 1 , [2009] 1 WLR 2353 at [24]-[25] per Lord Hope DPSC, RL v London Borough of Croydon [2018] EWCA Civ 726 at [78] per Underhill LJ, and ZN (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 1059 , [2018] 3 Costs LO 357 at [72]-[74], [86]-[93] per Singh LJ and [101] per Leggatt LJ. We were told by Ms Knorr in the present case that the inter partes rates were likely to be between 3 and 5 times the legal aid rates.

57. It is also recognised in those cases that the ability to recover costs at inter partes rates in cases where the claim has succeeded has a practical importance in terms of the financial viability of running a legal aid practice, and hence in terms of access to justice.

58. This does not mean that the Court should distort the principles on which costs are normally awarded simply because the claimant is legally aided (something that would fall foul of s. 30(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ). But it does mean that in cases like this it is of real importance that where an order for full costs is merited such an order is duly made, and that the Court should not too readily depart from the principle that a successful claimant should not be deprived of part of their costs without a substantial reason for doing so.

59. In the present case I agree that the appeal should be allowed for the reasons given by Baker LJ. LADY JUSTICE YIP

60. I agree with both judgments.