The Supreme Court has refused to award costs to an asylum seeker whose unsuccessful appeal clarified when a first-instance international protection decision can be challenged by judicial review before the statutory appeal process has been exhausted.
The appellant, identified only as AB, had asked the court to award all or part of his legal costs after his appeal was dismissed on 25 March 2026. That appeal concerned an International Protection Office decision which he alleged had been reached without fair procedures.
The Supreme Court had held that AB had an effective remedy available through an appeal to the International Protection Appeals Tribunal. It also clarified that an earlier statement in the Stefan case — suggesting that a fair appeal could not cure an unfair initial hearing — did not, taken on its own, represent the law.
Instead, judicial review of a first-instance decision before an available appeal has been used will generally be confined to rare cases involving a fundamental denial of justice, such as where the original process did not amount to a hearing at all or a fundamental requirement was ignored.
AB argued that the appeal served the public interest by resolving uncertainty in the case law and establishing a clearer test for future cases. The respondents accepted that the proceedings were in the public interest and that the State would benefit from the clarification, but argued that this justified only a neutral costs order rather than requiring the State to pay AB’s costs.
The Supreme Court agreed. It said unsuccessful public-interest litigants can receive costs only in cases of real substance involving a clear and significant public interest on a matter of fundamental importance.
The court found this case did not meet that higher threshold. It was not of foundational importance or exceptional novelty, and AB had pursued the proceedings for his own benefit while an adequate appeal remedy remained available. The court therefore made no order for costs, meaning each side bears its own costs.