The Court of Appeal has held that the UK government can be asked to pay expenses where a judicial review has been brought against the Upper Tribunal’s refusal to grant permission to appeal. The test case of Faqiri v Upper Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 151 has only recently been published on Bailli but it makes for interesting reading. 

To understand why this was such an important case, let’s look at how cases get to the point of judicial review proceedings against the Upper Tribunal.

Immigration appeals typically start life in the First-tier Tribunal. If refused, an appeal to the Upper Tribunal is not automatic. Instead, appellants get two bites at the cherry with a chance to apply first to the First-tier Tribunal for permission to appeal, and, if refused, then directly to the Upper Tribunal. If permission is refused at the Upper Tribunal stage, an appellant becomes “appeal rights exhausted”: there is no statutory right of further appeal. 

In a small amount of cases, it is possible to apply for judicial review against the Upper Tribunal’s decision to refuse permission to appeal. In those cases, the courts apply the “second appeals test” which empowers courts to allow such cases to be brought if satisfied:

1. that the proposed appeal would raise some important point of principle or practice, or 
2. that there is some other compelling reason for the relevant appellate court to hear the appeal

So, where this Cart type of judicial review is brought, the respondent is always the Upper Tribunal because it is the Upper Tribunal’s decision which is being challenged. Inevitably, however, the Home Office appears as an interested party backing the tribunal. That is because it will ultimately be the Home Office opposing these appeals in the tribunals below and incurring expense and time if they are sent back there. 

In the Faqiri case, the High Court had quashed the decision of the Upper Tribunal but did not award costs against the Upper Tribunal. Instead, the court made a limited costs order against the Home Office.

The appellant’s primary case was that costs should have been awarded against the Upper Tribunal. Lord Justice Hickinbottom was unimpressed, saying:

The driving force behind the proposition in Davies and Gudanaviciene – that a court or tribunal should not be liable for the costs of a judicial review which seeks to challenge one of its decisions, if the court or tribunal does not act improperly and takes no active part in the proceedings – is the important principle of judicial immunity. That principle applies equally to decisions challenged by way of Cart claims as any judicial review of the decision of a court or tribunal

The next argument was that the Home Office should have borne the full costs of the judicial review procedure because it was, after all, the real opponent all along. The Secretary of State cross-appealed on the basis that she did not participate in the judicial review proceedings, was not the “unsuccessful party” and did not cause any additional expense in the judicial review proceedings. 

The Court of Appeal hit the nail on the head in saying:

… the right that the Appellant is in reality seeking to vindicate is not his right to pursue an appeal in the UT, but his right to asylum, which the Secretary of State denied by his refusal of the Appellant’s claim for asylum. Given that there is no right of appeal or review in respect of the UT’s refusal of permission to appeal to it, to vindicate that right the Appellant was bound to commence judicial review proceedings. In my view, those proceedings cannot be viewed – as Mr Joseph urges – in isolation. They have been brought to enable the Appellant to proceed with his appeal to the UT, and only for that purpose.

Hickinbottom LJ noted that the “protagonist” in the appeal was the Secretary of State, and the point of the judicial review to vindicate Mr Faqiri’s right to asylum. He went on:

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. Even if, in these circumstances, the Secretary of State might not usually be described as “the unsuccessful party”.

This decision seems likely to force Ms Patel to dig deep into her pockets. Whilst it is true that the number of successful Cart claims is small, the cost associated with judicial review proceedings can be astronomical, especially in Scotland where we have ridiculously extravagant court fees. As an example, it will cost you the princely sum of £418 per hour for a court hearing if you’re not funded by legal aid.

If the Home Office does now have to think carefully about the potential for being held liable for costs at the judicial review stage, it may have to spend a bit more time scrutinising applications for permission to appeal to see whether there is indeed any merit in conceding cases.