ON APPEAL FROM
The Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Jacobs
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOLROYDE
| AL (Albania)
|- and -
|Secretary of State for the Home Department
Paul Joseph (instructed by Government Legal Department) for the Respondent
Hearing dates : 17 May 2018
Crown Copyright ©
LADY JUSTICE ARDEN :
Issue for determination on this appeal
Having considered all documents lodged, I have decided that the Secretary of State should be awarded her costs. The simple fact is that the proceedings did not achieve anything for the applicant. The Secretary of State made a decision within the time promised and was entitled to take the time necessary in order to come to a rational and reasoned conclusion on a consideration of all the evidence obtainable.
Appellant's asylum claim and the judicial review proceedings
23 November 1997 Appellant born in Tirana, Albania.
31 October 2012 Appellant's older brother, ZL, claims asylum due to ongoing blood feud.
28 March 2013 Respondent refuses ZL's asylum claim.
29 May 2013 ZL's FTT appeal allowed.
22 July 2013 ZL recognised as a Refugee by the United Kingdom.
23 December 2014 Appellant enters United Kingdom.
24 December 2014 Appellant claims asylum.
9 January 2015 Appellant's case allocated to a caseworker.
13 January 2015 Appellant's screening interview.
27 May 2015 Substantive asylum interview is booked for the Appellant for 4 June 2015.
28 May 2015 Respondent invites the Appellant to attend a substantive asylum interview.
4 June 2015 Appellant attends for interview which does not take place.
16 June 2015 Appellant's case flagged as "non-straightforward" and referred to a specialist team for enquiries to be made in Tirana.
19 June 2015 Appellant undergoes substantive asylum interview.
23 June 2015 Draft refusal letter prepared pending enquiries in Tirana.
25 June 2015 Police National Computer (PNC) checks completed.
26 June 2015 Appellant's representatives write to the Respondent providing additional clarification of information given in interview.
29 July 2015 the Respondent receives a response from [the Risk & Liaison Overseas Network] RALON.
22 September 2015 Respondent's draft decision updated to reflect enquiries from RALON.
23 September 2015 Draft asylum decision prepared, awaiting a final check from the SPoE (second pair of eyes) process.
24 September 2015 Error noted in draft decision letter, rectified.
25 September 2015 Decision is reviewed through the SPoE process. Appellant is not yet 18 and the Respondent is not satisfied that there are adequate reception facilities in Albania at this time. The decision is placed "on hold" and not to be served pending enquiries into his brother's asylum status.
28 September 2015 Appellant's representatives write to the Respondent asking for an explanation for the delay and that the processing of his asylum claim be expedited.
2 October 2015 Respondent receives further information from the British Embassy in Tirana.
12 October 2015 Respondent informs Appellant that she is making "further enquiries", and that these enquiries could take a further six months.
9 November 2015 Appellant's representatives send a letter before claim to the Respondent, by recorded delivery, challenging the delay in reconsideration of his asylum claim and the failure to provide an explanation for it. Respondent is given 14 days from the date of the letter to respond.
10 November 2015 Appellant's letter before action is received by the Respondent.
23 November 2015 Appellant turns 18.
24 November 2015 Respondent replies to the Appellant's letter before action. Respondent states that the Appellant's case is being actively reviewed. Respondent refers to her letter of 12 October 2015 and repeats that, "it is anticipated that the process could take up to six months".
21 December 2015 Appellant lodges application for judicial review.
4 January 2016 Respondent confirms internally that no caseworker has been allocated to the consideration of ZL's case. Appellant's caseworker informed that it might be a further six months before a decision was made in respect of ZL.
6 January 2016 ZL's case is expedited.
13 January 2016 Time for service of the Respondent's Acknowledgement of Service expires.
20 January 2016 Upper Tribunal Judge Pitt decides that the claim should not be considered before 3 February 2016 and that the Respondent should be entitled to lodge an Acknowledgment of Service by that date, in accordance with the protocol in R(Kumar) v SSHD  UKUT 00104 (IAC).
20 January 2016 Respondent informs Appellant that his case had been "expedited" and that enquiries are ongoing and have not been concluded. The Respondent agrees that a decision should be made as soon as possible and that "it is anticipated that it will take a further six months before a decision can be reached". The Respondent proposes a consent order in which she agrees to make a decision on the Appellant's asylum claim within 6 months of the sealing of such an order, absent special circumstances.
20 January 2016 Respondent files an Acknowledgement of Service.
3 February 2016 Appellant's representatives offer to withdraw the claim if the Respondent agrees to reach a decision on his asylum claim within 28 days and on the basis that the Respondent pays the Appellant's costs.
10 February 2016 Respondent informs the Appellant of the intention to revoke his brother's refugee status. Respondent asks the Upper Tribunal to grant her a further 21 days to provide Summary Grounds of Defence.
12 February 2016 Appellant writes to the Tribunal objecting to the request for more time to lodge Summary Grounds of Defence and asking for the application for Judicial Review to be placed before a Judge for consideration on the papers at the earliest available opportunity.
17 February 2016 Respondent applies to extend time for service of Summary Grounds of Defence to 2 March 2016.
22 February 2016 Appellant's representatives oppose the Respondent's application. Appellant's brother's representatives respond to the Respondent's letter of 9 February 2016.
2 March 2016 Respondent files Summary Grounds of Defence.
3 March 2016 Respondent seeks views of UNHCR on withdrawing ZL's Refugee status.
11 March 2016 Appellant's representatives file a Response to the Respondent's Summary Grounds of Defence.
17 March 2016 Respondent replies.
22 March 2016 Appellant's representatives ask for a decision by an Upper Tribunal Judge on the papers.
1 April 2016 Respondent notifies the Appellant that his asylum claim is refused. The reasons for the decision are set out in a letter dated 15 March 2016 which is sent under cover of a letter dated 1 April 2016.
4 April 2016 Appellant receives notification of the refusal of his asylum claim decision.
5 April 2016 Appellant's representatives request that the Upper Tribunal defers consideration of the Appellant's application for judicial review until further notice, following receipt of the asylum decision.
22 April 2016 Appellant's representatives write to the Respondent inviting settlement.
6 May 2016 Respondent accepts the Appellant's proposal to withdraw the claim but refuses to agree that she should pay the Appellant's costs. The Respondent invites the Appellant to agree that there should be no order as to costs. The Respondent suggests that the parties submit written submissions on costs, if costs cannot be agreed between them.
9 May 2016 Appellant's representatives decline to agree that there should be no order as to costs and agree to written costs submissions.
26 May 2016 Order sealed by consent settling the matter subject to costs.
9 June 2016 Appellant submits his costs submissions.
22 June 2016 Respondent serves her costs submissions.
29 June 2016 Appellant responds to the Respondent's submissions.
13 July 2016 UNHCR informs Respondent that withdrawing ZL's Refugee status would not be appropriate.
20 July 2016 Upper Tribunal orders that the Appellant should pay the Respondent's costs in the sum of £1,760.
24 August 2016 Appellant lodges an appeal.
17 October 2016 Upper Tribunal Judge Gleeson grants the Appellant permission to appeal.
30 November 2016 Appellant lodges his Appellant's Notice.
15 December 2016 Respondent serves her Respondent's Notice.
13 November 2017 Respondent discloses UNHCR involvement in relation to ZL's Refugee status.
13 January 2017 Appellant serves his skeleton argument in support of his appeal.
27 January 2017 Respondent serves her skeleton argument opposing the appeal and in support of her Respondent's Notice.
6.2 Your client's case is being actively reviewed. As stated in the SSHD's correspondence dated 12 October 2015, the SSHD is in the process of making further enquiries and upon the completion of these enquiries the SSHD will make a decision on your client's application. As set out in the correspondence to you dated 12 October 2015, it is anticipated that the process could take up to six months. The SSHD is aware that your client's brother has been granted refugee status; however each application is assessed on a case by case basis.
6.3 The SSHD is mindful of her duties to children under s55 of the Borders, Citizenship and Immigration Act 2009 and will endeavour to make a decision on your client's matter as early as possible.
Summary of Grounds
2. The Applicant complains that the delay of twelve months in the consideration of his application is unlawful, and that the corresponding failure of the Respondent to consider expediting the processing of his application and/or provide a reasonable timeframe for completing the processing of his application, is also unlawful.
3. A seeks:
i) a declaration that the delay by the SSHD in reaching a decision on the Applicant's outstanding application is unlawful;
ii) a declaration that the SSHD's insistence upon considering A's asylum claim in isolation from A's brother's successful application for asylum is also unlawful;
iii) a decision on the Applicant's application within 28 days;
v) such further relief as the Tribunal considers necessary.
333A. The Secretary of State shall ensure that a decision is taken on each application for asylum as soon as possible, without prejudice to an adequate and complete examination.
Where a decision on an application for asylum cannot be taken within six months of the date it was recorded, the Secretary of State shall either:
(a) inform the applicant of the delay; or
(b) if the applicant has made a specific written request for it, provide information on the timeframe within which the decision on their application is to be expected. The provision of such information shall not oblige the Secretary of State to take a decision within the stipulated time-frame.
60 Thus 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. Ultimately it seems to me that the Bahta case  5 Costs LR 857 was decided on this basis.
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. That I think was the approach adopted in the Scott case  EWCA Civ 217. 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. The Boxall case 4 CCLR 258 appears to have been such case.
11 As was emphasised by Lord Bingham [in Procurator Fiscal v Watson  4 All ER 1], the question was whether delay produced a breach of Article 6(1) . Here the question is whether the delay was unlawful. It can only be regarded as unlawful if it fails the Wednesbury test and is shown to result from actions or inactions which can be regarded as irrational. Accordingly, I do not think that the approach should be different from that indicated as appropriate in considering an alleged breach of the reasonable time requirement in Article 6(1). What may be regarded as undesirable or a failure to reach the best standards is not unlawful. Resources can be taken into account in considering whether a decision has been made within a reasonable time, but (assuming the threshold has been crossed) the defendant must produce some material to show that the manner in which he has decided to deal with the relevant claims and the resources put into the exercise are reasonable. That does not mean that the court should determine for itself whether a different and perhaps better approach might have existed. That is not the court's function. But the court can and must consider whether what has produced the delay has resulted from a rational system. If unacceptable delays have resulted, they cannot be excused by a claim that sufficient resources were not available. But in deciding whether the delays are unacceptable, the court must recognise that resources are not infinite and that it is for the defendant and not for the court to determine how those resources should be applied to fund the various matters for which he is responsible.
LORD JUSTICE HOLROYDE: