The UK Court of Appeal has declined to award costs to two asylum seekers where they withdrew their appeals following consent orders. The Court found that their cases had not been ‘successful’ in a legal sense despite the fact that the Secretary of State’s withdrawal of certification of their asylum claims resulted in their desired outcome of being able to apply for asylum in the UK. The judgement also examined whether a claimant’s public funding should affect costs awards.
The two asylum seekers, one (ZN) from Afghanistan and the other (KA) from Iraq, had first entered Europe through Bulgaria and Austria respectively. Both subsequently travelled to the UK where they applied for asylum. In both cases the Secretary of State made a formal request under the Dublin III Regulation to have them returned to the countries where they first entered the EU, certifying their claims as clearly unfounded.
Both appellants challenged the Secretary of State’s decision, relying in both cases on Article 3 of the European Convention on Human Rights (ECHR), and additionally in the case of ZN on Article 5 ECHR and Articles 4, 6 and 18 of the EU Charter of Fundamental Rights. Certification of their asylum claims was withdrawn by the Secretary of State when it was realised that, due to administrative errors, the deadline for transferring them had passed. In both cases such decision was made on foot of a consent order wherein the appellants also agreed to withdraw their appeals.
No order was made for costs and the appellants appealed this decision to the Court of Appeal.
In examining the issue of inter partes costs, Lord Justice Singh reiterated that generally an unsuccessful party in a civil case will be ordered to pay the costs of the successful party. The judge considered the English case of M v Croydon wherein it was held that ‘in cases where there has been some compromise, and the compromise does not actually affect the claimant’s claims’ there is a strong case for there to be no order for costs.
The Court of Appeal noted that while the appellants had achieved their desired outcome in a practical sense, this was brought about through a settlement with the Home Office rather than a favourable finding on the legal merits of their case which had failed at first instance and, in the opinion of the Court, would likely have failed again on appeal.
By way of authority, the Court cited Tesfay v Secretary of State for the Home Department, in which the claimants, asylum seekers resisting removal to Malta, ‘had not been able to establish that their cases had been considered on a flawed legal basis and that it was therefore necessary that they be reconsidered’. Costs in that case were not awarded, on the basis that ‘the withdrawal of human rights certifications only represented a very limited success on behalf of the applicants’ and that the underlying legal question had not actually been determined in their favour.
Lastly the Court considered whether a claimant in receipt of legal aid should be treated differently as regards costs. While acknowledging that ‘effective access to justice is of profound concern to the courts, especially in the field of public law’, Singh LJ held that costs should only be awarded on a ‘principled basis’ of which there was none in the present case. Leggatt LJ also took up the legal aid issue in his judgement, adding that a legally aided claimant already has advantages over other claimants of public funding for litigation and a lack of enforceability of cost orders against them. He asserted that ‘[i]t would be unfair to a claimant who has had to fund the litigation herself if at the end of the proceedings the court were to decline to award her costs which the defendant would have been ordered to pay if the claimant had been legally aided’.
Click here for the judgement in ZN (Afghanistan) & KA (Iraq) v Secretary of State for the Home Department.
Click here for analysis by Free Movement.