In R (Shahi) v Secretary of State for the Home Department [2021] EWCA Civ 1676 the Court of Appeal held that a grant of interim relief did not entitle a claimant to his costs, where there was no settlement or court determination of the underlying legal issue.

Interim relief followed by consent order

The case was about “bridging support” under the Asylum Support (Amendment) Regulations 2002. This is available between someone being granted asylum and the termination of their asylum support (usually 28 days), allowing them time to access mainstream welfare benefits.

Mr Shahi challenged the decision to stop providing support in his case and the failure to amend the 2002 Regulations “to provide a sufficient move-on or ‘grace’ period”. Judicial review proceedings were issued which included an application for interim relief. Mr Justice Johnson granted it, ensuring the continuation of Mr Shahi’s support “until the determination of the permission application in this case, or further order”.

The order was made without hearing from the Home Office on the basis that the balance of convenience favoured a grant of interim relief. Johnson J held that the claim was sufficiently arguable for interim relief to be granted, but did not decide permission and made clear that his decision did not “in any way [bind] the permission judge”.

Before permission was considered, Mr Shah was granted benefits and housing. A consent order was agreed, which provided for the application for permission to be withdrawn, the interim relief order to be discharged and for the parties to make submissions on costs.

What happens about costs in this scenario?

Mr Shahi argued, essentially, that because he had achieved what he sought in the claim, he should be considered the successful party and so entitled to all of his costs. In another case on similar facts (Jabarkhil CO/4495/2019) Tipples J had decided that success on an application for interim relief justified an order for costs.

In Mr Shahi’s case, the High Court originally made no order as to costs on the basis that:

The order for interim relief reflected the reality at the interim stage, and the court’s reliance on the balance of convenience. If the proceedings had continued, they might well have been defended, and the Secretary of State might have established that the decision was lawful. In that situation, the Secretary of State would have been the successful party, even though the order for interim relief was made correctly…

On appeal, Elisabeth Laing LJ gave the main judgment with which Newey LJ agreed. She decided that there were four main issues.

Issue one: the nature of the dispute was a contention that the Home Office had acted unlawfully. This “was an essential foundation for the claim for interim relief, just as much as it was for the application for judicial review”.

Issue two: it was clear that Johnson J did not decide this underlying issue. He only decided that the claim was sufficiently arguable to grant interim relief.

Issue three: the consent order provided for the withdrawal of the claim and discharge of the interim relief order. It did not involve any concession about or decision on the underlying issue of whether the Home Office had acted unlawfully.

Issue four: who was the successful party for the purposes of Civil Procedure Rule 44.3(2)? The judge was not only entitled to ask himself who would have won at a substantive hearing; he was required to do so. “The possibility that the Secretary of State could have been the successful party after the substantive hearing was an additional reason why success at the interim stage could not be equated… with success in the claim”.

Finally, the judge was entitled to find that he could not tell who would win at a substantive hearing and this was “the right decision” because: there is a high threshold for establishing a breach of Article 3 in a case concerning state support; Article 8 does not confer rights to benefits or housing; Mr Shah was permitted to work, could have applied for an advance of Universal Credit and the local housing authority might have considered him to be in priority need for housing; and his solicitors had delayed providing him with his residence permit.

As this suggests, the conclusion was to uphold the High Court’s finding on costs and dismiss Mr Shabi’s appeal. While deciding that the costs order in Jabarkhil was wrong, Laing LJ made clear that the purpose of her judgment was “not designed to be a comprehensive statement of the law about costs in judicial review cases” but to decide the appeal on its facts.

Consequences for future costs orders 

Nevertheless, this judgment will make it difficult to get an order for costs in a scenario that will be familiar to immigration public law practitioners: namely where there is an order for interim relief and the claim subsequently becomes academic and is withdrawn by consent without there being any concession about or decision on the underlying legal issue.

Dingemans LJ would have taken a more broad-brush approach and thought that Mr Shah was the “successful party” (see paragraph 88). But he did not press this into a dissenting judgment because the appeal was about costs, “where part of the role of the Court of Appeal is to give clear practical reasons”.