In statutory appeals to the Court of Appeal from the Upper Tribunal (Immigration and Asylum Chamber), if the appeal had been allowed by consent, with the appellant obtaining the remittal sought, or if the appeal had been resolved by the grant of a status which was not previously offered, then provided the appellant was clearly identifiable as the successful party, CPR r 44.3(2(a) would usually entitle him to his costs absent specific matters of conduct or other features making an order inappropriate. The crucial question in such cases was the identification of the successful party.

The Court of Appeal so stated when giving general guidance as to costs in relation to settled statutory appeals in three cases where AL, an Albanian asylum seeker, and FN, a Gambian asylum seeker, were granted orders for remittal and DH, a Bangladeshi student, was granted to leave to remain as a student when their appeals were settled by consent or resolved.

MAURICE KAY LJ said that the court was concerned with appeals, either ones that had been allowed by consent, with the appellant obtaining the very relief sought (for example, a remittal) or ones resolved by the grant of a status which was not previously offered. The issue was the order for costs where the appellant had obtained such a benefit from the appellate process. In the cognate area of the settlement of judicial review applications in the Administrative Court, the general approach was the subject of general guidance in R (Boxall) v Waltham Forest London Borough Council (2001) 4 CCL Rep 258 (21 December 2000) and its application in asylum and immigration cases was the subject of further guidance in R (Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895. Very recently, the position arising in judicial review was revisited in M v London Borough of Croydon [2012] EWCA Civ 595. (Although M’s case was a judicial review case and therefore turned in part on compliance/non-compliance with the pre-action protocol, the judgment of the Lord Neuberger of Abbotsbury MR contained much which could be applied by way of general approach to statutory appeals from the Upper Tribunal. Paragraphs 52-65 of the judgment repaid careful reading). However, the context of a statutory appeal was somewhat different. It was not preceded by a pre-action protocol and the respondent was not necessarily an active participant prior to the grant of permission in the way that she was in the Administrative Court where she was obliged to acknowledge service and plead the basis of her resistance (if any) to the application.

The three cases provided an opportunity to formulate general guidance in relation to costs in settled statutory appeals. The basic rules in relation to costs were the same as those in other appeals, notwithstanding the fact that, when an appellant appealed from the Upper Tribunal, he was emerging from a jurisdiction which operated on a no-costs basis. Although statutory appeals to the Court of Appeal from the Upper Tribunal had distinctive features it was common ground that CPR r 44.3 applied to them. Accordingly, the starting point was that the court had a discretion as to whether to make an order that costs were payable by one party to the other: CPR 44.3(1)(a). If it decided to make such an order, the general rule was that the “unsuccessful” party would be ordered to pay the costs of the “successful” party, although the court may make a different order: CPR r 44.3(2). His Lordship was prepared to accept that, in the appellate circumstances with which the court was concerned, there might be cases where there were features or complexities which would justify the court deciding not to make a positive costs order but in the types of disposal with which the court was concerned they should be relatively rare.

His Lordship rejected any suggestion that the approach in BCT Software Solutions Ltd v C Brewer & Sons [2004] CP Rep 2 justified a default position of “no order as to costs” in appeals from the Upper Tribunal. Further his Lordship did not consider that, in general, the Secretary of State, upon effectively conceding an appeal, would be able to avoid an adverse costs order by reference to the failure of the appellant to have obtained permission to appeal before leaving the no-costs regime of the Upper Tribunal. His Lordship did not consider that that was conduct that could fairly be held against the appellant under CPR r 44.3(4)(a).

Once it was accepted that there could be no context-specific carve-out from CPR r 44 for statutory appeals from the Upper Tribunal, there was no particular characteristic of such appeals which would commonly accrue to the benefit of the Secretary of State in cases of the kind with which the court was concerned. In short, if the appellant was clearly identifiable as the successful party, CPR r 44.3(2)(a) would usually entitle him to his costs, absent specific matters of conduct or other features which pointed to a different order being appropriate. The appellant would have had to have come this far in order to obtain a litigation benefit which the Upper Tribunal had denied him, often because it fell into legal error with the encouragement or acquiescence of the Secretary of State. There were cases in which the Secretary of State might not have been so instrumental — for example, where the legal error was purely one of inadequate reasoning on the part of the Upper Tribunal. However, his Lordship would not create a general exception in relation to that. It followed that the crucial question in cases such as the present cases would be the identification of the successful party. As to that, the recent guidance in M’s case would be relevant in the present context. It was difficult to see why, special protocol considerations apart, the position should be significantly different. In the three cases the appellants were entitled to their costs.

RICHARDS and KITCHIN LJJ agreed.