QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(instructed by DEIGHTON PIERCE GLYNN) for the Claimant
MR JAMES CORNWELL
(instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Hearing dates: 9 May 2018
Crown Copyright ©
MR JUSTICE OUSELEY :
"…both the work and costs involved in preparing the parties' submissions on costs and the material the judge is asked to consider are proportionate to the amount at stake. No order for costs will be the default order when the judge cannot without disproportionate expenditure of judicial time, if at all, fairly and sensibly make an order in favour of either party."
Lord Neuberger made the point that the Court was not obliged to resolve a free-standing dispute about costs when invited to do so in a consent order. The parties took the risk that the Court would not be prepared to make any determination other than that there be no order for costs, on the grounds that such an exercise of considering the proper result would be disproportionate. Of course there may be circumstances where no order for costs is made as a result of a consideration of the merits of the costs submissions on either side and was itself the appropriate order. That was the basis for the judgment of Master Gidden in this case.
The claim and its evolution
"the Defendant has failed to offer emergency accommodation, provide any other accommodation or contact the Claimant and provide a date on which accommodation will be available.
Later at  the submissions stated that it appeared to be accepted in principle by the Defendant that the obligation to provide accommodation had to be satisfied forthwith, as there had been an earlier concession in respect of s4 appeals and the provision of emergency accommodation immediately following the hearing.
" In the present case it is not clear why such emergency accommodation was not offered to the Claimant, who instead continues to walk the streets in search of accommodation at night…"
"(1) Provision of adequate single section 4 accommodation in London forthwith;
(2) A declaration that the failure to provide such accommodation immediately following the decision of the FTT was unlawful and in breach of his rights under Article 3 and 8 ECHR;
(3) A declaration that the Defendant has breached policy in respect of offering emergency accommodation in London immediately post a successful appeal;
(4) A declaration that the failure to provide such accommodation immediately following the decision of the FTT was in breach of the Defendant's duty under s149 Equality Act 2010("EA 2010");
(5) A declaration that the failure to publish policy with a clearly set out time frame for provision of policy is unlawful as giving rise to an unacceptable risk pursuant to Article 3 ECHR;
(8) Any such other relief as the Court sees fit."
"The application highlights a potentially systemic problem of delay which the Court ought to consider."
She specifically referred to the letter from DPG dated 8 November 2016, in response to the Order of 2 November 2016. DPG had not included it in the Claimant's bundle, it was in the Defendant's supplementary bundle. This letter pointed out that the Claimant wanted the "ongoing systemic problem" dealt with, whereas the Defendant contended that it was an individual case, without acknowledging any unlawful delay. It continued:
"The issue of the systemic delay is at the heart of the challenge and is a matter of significant public interest such that it is considered that it would be desirable and appropriate for the Court to provide guidance on this issue with a view to stemming the number of "delay" cases of this type."
The letter confirmed that it was wholly unacceptable that the Defendant had not provided accommodation until an interim order was made, despite having had every opportunity to do so following the FtT determination and the first letter before claim.
"There was unlawful delay by the Defendant in offering the Claimant accommodation pursuant to s4 of the Immigration and Asylum Act 1999 from around 22 September 2016 to 7 October 2016."
On that basis leave to withdraw the claim was given and arrangements were made for written submissions about costs.
"that the Secretary of State agrees, in principle, to amend procedures so that appellants who appeal to the First-Tier Tribunal against the refusal of s4 accommodation will be informed in advance of the hearing of the potential availability of emergency accommodation in London if their appeal is successful and they meet relevant criteria. The precise arrangements will be discussed at the meeting to be set up shortly by the Home Office with the interested parties to discuss issues surrounding access to emergency accommodation.
For the avoidance of doubt, the Secretary of State's agreement to take the steps outlined in Part B of this letter is expressly made without any admission that the Secretary of State is under any legal obligation to take such steps."