Costs awarded by Court of Appeal in visit visa delay case

The Court of Appeal has overturned a costs order made by the Upper Tribunal in which no costs were awarded in a case where the Home Office had refused a visit visa four times and a judicial review had been lodged challenging the failure to make a new decision by the promised date. In a linked appeal, the tribunal’s order for no costs was upheld. The case is R (Nisar & Ors,) v Secretary of State for the Home Department [2025] EWCA Civ 1646.

Background

The Home Office had issued four refusals of visit visas for Mrs Nisar and her four children to come to the UK. Each time a pre action letter was sent challenging the refusal. A judicial review was also lodged in respect of the second refusal before being settled by consent with the Home Secretary agreeing to pay costs.   

In response to the fourth pre action letter the Home Office replied on 5 July 2023 advising that a new decision would be made by 16 October 2023. Unsurprisingly, concerns were raised on behalf of Mrs Nisar given the delay in the context of the previous refusals. They asked that a decision be made by 21 August 2023 and the Home Office agreed to this.

On 22 August 2023 a fifth refusal decision was made but not served on Mrs Nisar. In the meantime, a second judicial review had been lodged challenging the delay in making a decision. After the judicial review was served on the Home Secretary, the refusal was served on Mrs Nisar.

The claim was settled by consent with the matter of costs to be determined by the tribunal. Both parties sought their costs. The tribunal made no order for costs, saying that the Home Office should have advised the appellant that the decision would be late and the appellant should have contacted the Home Office to ask when the decision would be sent before lodging the judicial review.

In the joint appeal of Mr Mammedov, the underlying judicial review also related to a judicial review of refusal of a visit visa. This was refused twice and two pre action letters were sent. In response to the second one the Home Secretary agreed to reconsider the decision within three months, by 20 March 2025.

This time, the appellant’s solicitors had sent a letter on 16 March 2025, stating that if a decision was not made and served by 20 March 2025 then a judicial review would be lodged without further notice. The judicial review was lodged on 24 March 2025 and on 28 March 2025 the Home Office issued a third refusal.

Again, the judicial review was withdrawn by consent with the matter of costs to be determined by the tribunal, which made no order for costs. The tribunal said that while the appellant had obtained the remedy he sought (a decision on his application) and was to be considered the successful party, the usual order that costs would be awarded to him would be departed from because of the failure to comply with the pre action protocol.

The tribunal said that the reminder email of 16 March 2025 did not comply with the pre action protocol, and dismissed the appellant’s argument that the pre action letter sent in December 2024 to challenge the refusal of the decision could not be relied on as compliance given it did not raise the matter of delay. The tribunal said it would have been reasonable for a pre action letter relating to the delay to have been sent and as a result made no order for costs.

Both of the appellants appealed.

The Court of Appeal’s decision

With reference to the leading case on costs of M v Croydon [2012] EWCA Civ 595, the Court of Appeal allowed Mrs Nisar’s appeal, disagreeing with the tribunal that the Home Office should have been contacted again before the judicial review was lodged. The court took into account the protracted history of the matter and found that the Home Office’s letter saying that a decision would be made by 21 August 2023 amounted to a legal obligation. The court stated:

The threat of the claim achieved all that the Appellants were seeking. Their solicitors issued the claim before knowing that the Respondent was about to issue the decision, after the agreed deadline: they acted reasonably in doing so; and in those circumstances the SSHD should have been ordered to pay costs in respect of the brief period up to the compromise of the claim.

The second appellant, Mr Mammedov’s appeal was dismissed, with the court agreeing with the tribunal that “”it would have been reasonable, and in accordance with the overriding objective, for the Applicant to raise the (new) issue of delay via a pre-action letter prior to issuing the claim for judicial review”.

Conclusion

This seems a good and fair decision, as well as a reminder of the importance of ensuring that the pre action protocol is strictly complied with, particularly in non urgent cases where there is ample time to do. Otherwise, as we have seen here, costs will be at risk.