The Supreme Court has ruled that the State is entitled to its costs in appeals concerning a challenge to a provision of the International Protection Act 2015. The costs ruling followed the Court’s December 2020 decision that the provision was constitutional and compatible with the European Convention on Human Rights.
The ruling, dated 15 March 2021, concerns three records. The applicants in the first two cases, identified as A and S and S, had challenged section 56(9)(a) of the Act. A third case, brought by I. I. (Nigeria), is listed in the heading, but the costs ruling’s account of the challenge and submissions refers to the applicants in the first two cases.
The applicants had succeeded in the High Court, despite an earlier High Court ruling in RC (Afghanistan) v Minister for Justice finding the provision constitutional and compatible with the Convention. The State appealed. In its 8 December 2020 judgment, the Supreme Court allowed the appeal and rejected the constitutional and Convention challenge.
In written submissions on costs, the applicants argued that the litigation clarified the law, raised issues of serious public importance and concerned cases awaiting the appeal outcome. They also said not all of the State’s arguments for treating pre-application and post-application marriages differently had succeeded. The State disputed that the cases were test cases, noting that the issue had already been decided in RC, and sought its appeal and High Court costs.
The Court applied the usual rule that a successful party is entitled to costs. It said the cases were not test cases because the issue had already been decided in RC, and that the leapfrog appeal and need to resolve conflicting High Court decisions did not justify departing from the normal rule. It also said the State’s failure to establish every reason advanced for the difference in treatment did not change the outcome, because the applicants’ claim had failed in its entirety.
The order entitles the State appellants to their costs on the basis that costs follow the event. The ruling does not specify an amount.