In a reasoned determination on costs, the High Court has found that a judicial review brought by seven West Midlands councils over unfair allocation of responsibilities for housing asylum seekers did not have a causal link to the eventual change in Home Office policy in this area. The case is R (City of Wolverhampton Council and others) v Secretary of State for the Home Department [2022] EWHC 1721 (Admin).

Facts in brief

At the heart of the claim was the system for procuring accommodation for asylum seekers under section 95(1) of the Immigration and Asylum Act 1999. The system had for a long while involved agreements with local authorities across the UK – meaning that accommodation arrangements were implemented only where LAs had volunteered to be “dispersal areas”.

Unsurprisingly, this meant that – generally – only councils sympathetic to asylum seekers would be “dispersal areas”; the majority of LAs (some 60%) refused to participate. Even more unsurprisingly, this situation led to unsustainability and a strong sense of unfairness by those LAs that did volunteer.

In March 2021, the seven LAs told the Home Office that they no longer wished to participate and urged  the department to adopt a policy for all LAs to undertake asylum dispersal responsibilities. The Home Office agreed to “review” the policy, but stated that it “could not agree” to suspending the accommodation of new asylum seekers in their areas. This was the “position” subject to challenge by judicial review.

The judicial review

In particular, the seven LAs argued that the existing policy was “unfair and unequal”, and that it was “irrational” for the Home Office to decide that only those LAs which had been volunteering previously but expressed an intention to withdraw should become compulsory participants in asylum dispersal.

The claim was scheduled to be heard in May 2022 by way of rolled-up hearing. But on 13 April, the Home Office announced a “full” dispersal system with compulsory participation by all local authorities.

The claimant LAs proposed a settlement in which the Home Office would accept the unlawfulness of its previous position, and pay the costs of the proceedings. After some wrangling with the Government Legal Department, the parties eventually agreed to withdraw the claim by consent, but with written submissions to be made on costs.

The dispute on costs

The LAs’ view was that the Home Office should pay all the legal costs, given that its undertaking to adopt the “new” policy of compulsory asylum dispersal meant that they had achieved the outcome they sought.

The Home Office contended that it should not be liable for the LAs’ costs, saying that the policy had no causal link to the judicial review. It also asked that the local authorities be liable for the government’s legal costs incurred after 13 April 2022. This was because the need to prepare, for example, the skeleton arguments for the judicial review hearing scheduled for May 2022 was only necessary because the LAs refused to accept that their claim had become academic.

Importantly, the Home Office never did accept, and the consent order did not reflect, that the July 2021 position was unlawful.

The court’s judgment on costs

Mr Justice Fordham did not agree that the Home Office’s new policy position was in fact what was sought by the judicial review claim:

The claim, as designed, focused on the contention that the Defendant could not impose asylum dispersal arrangements on the Claimants… The claim could have been designed to target the action of failing to adopt [a mandatory dispersal policy].

Most importantly, analysing the “big-picture” decision-making context, Fordham J considered that the new system was adopted because of a range of considerations. It was not caused or materially contributed by the judicial review proceedings.

The Defendant submits – and, based on the witness statement evidence and the Ministerial Submissions, I accept – that there was a policy decision-making process with a flow and momentum, which preceded the judicial review proceedings; and which were not simply responsive to pre-action correspondence from the Claimants.

The judge also took into account a letter from a Government Legal Department solicitor — an officer of the court — which stated that the policy was not introduced as a result of litigation.

As to the Home Office’s claim, Fordham J considered that the LAs’ desire to pin the position down was reasonable in light of what was not a settled policy position, and the Home Office adopting a “degree of oscillation” in their defence of the claim.

Fordham J thus made no order as to costs; each side pays their own.