The High Court has dismissed three judicial review proceedings brought by M.S. (Afghanistan), M.W. (Afghanistan) and G.S. (Georgia), and awarded costs to the Minister for Justice and Equality. The order includes reserved costs, the costs of the proceedings before the Court of Justice of the European Union (CJEU), and the costs of the High Court costs application.
In a judgment delivered on 16 March 2021, Mr Justice Humphreys said the parties had agreed to dismiss the cases following the CJEU’s December 2020 judgment. The remaining dispute was who should pay the costs.
The proceedings concerned an earlier challenge by M.S. to a decision relying on section 21 of the International Protection Act 2015. The High Court had referred three questions to the CJEU. The CJEU’s combined answer to the first and third questions required the cases to be determined in the State’s favour; it found there was no need to answer the second question. The High Court judge noted that the CJEU’s reasoning included a point adverse to the State on the first question, but that point was not part of the formal order. The CJEU did not decide whether there had been an abuse of rights.
The judge held that section 169 of the Legal Services Regulation Act 2015 did not apply retrospectively to proceedings begun before it commenced in October 2019. He reasoned that the law on costs was substantive and that, absent an express and constitutionally compatible provision, the applicable costs law was the law in force when proceedings began. He added that the longstanding principle that costs follow the event remained relevant.
Even if section 169 applied, the judge considered the Minister successful on the central issue. Any points on which the applicants might be considered successful were peripheral, and the reference had primarily been initiated by the court. He also rejected the applicants’ arguments that technical differences in the tribunal’s reasoning, the significance or complexity of the legal questions, or earlier cases involving costs of CJEU references justified a different costs order.
The judge referred to inaccurate disclosure of immigration histories by M.S. and M.W. as a further consideration, but said he did not need to base the costs decision on it. He made no equivalent observation about G.S.
The court dismissed each proceeding and awarded the Minister’s costs, including reserved costs and the costs of the CJEU proceedings and the costs application. The judgment also suggested that section 169 might benefit from reconsideration, but did not make an order concerning legislative change.