The Court docket of Attraction has overturned a prices order made by the Higher Tribunal during which no prices have been awarded in a case the place the Dwelling Workplace had refused a go to visa 4 occasions and a judicial assessment had been lodged difficult the failure to make a brand new resolution by the promised date. In a linked attraction, the tribunal’s order for no prices was upheld. The case is R (Nisar & Ors,) v Secretary of State for the Dwelling Division [2025] EWCA Civ 1646.
Background
The Dwelling Workplace had issued 4 refusals of go to visas for Mrs Nisar and her 4 kids to come back to the UK. Every time a pre motion letter was despatched difficult the refusal. A judicial assessment was additionally lodged in respect of the second refusal earlier than being settled by consent with the Dwelling Secretary agreeing to pay prices.
In response to the fourth pre motion letter the Dwelling Workplace replied on 5 July 2023 advising {that a} new resolution can be made by 16 October 2023. Unsurprisingly, considerations have been raised on behalf of Mrs Nisar given the delay within the context of the earlier refusals. They requested {that a} resolution be made by 21 August 2023 and the Dwelling Workplace agreed to this.
On 22 August 2023 a fifth refusal resolution was made however not served on Mrs Nisar. Within the meantime, a second judicial assessment had been lodged difficult the delay in making a choice. After the judicial assessment was served on the Dwelling Secretary, the refusal was served on Mrs Nisar.
The declare was settled by consent with the matter of prices to be decided by the tribunal. Each events sought their prices. The tribunal made no order for prices, saying that the Dwelling Workplace ought to have suggested the appellant that the choice can be late and the appellant ought to have contacted the Dwelling Workplace to ask when the choice can be despatched earlier than lodging the judicial assessment.
Within the joint attraction of Mr Mammedov, the underlying judicial assessment additionally associated to a judicial assessment of refusal of a go to visa. This was refused twice and two pre motion letters have been despatched. In response to the second the Dwelling Secretary agreed to rethink the choice inside three months, by 20 March 2025.
This time, the appellant’s solicitors had despatched a letter on 16 March 2025, stating that if a choice was not made and served by 20 March 2025 then a judicial assessment can be lodged with out additional discover. The judicial assessment was lodged on 24 March 2025 and on 28 March 2025 the Dwelling Workplace issued a 3rd refusal.
Once more, the judicial assessment was withdrawn by consent with the matter of prices to be decided by the tribunal, which made no order for prices. The tribunal mentioned that whereas the appellant had obtained the treatment he sought (a choice on his utility) and was to be thought of the profitable get together, the standard order that prices can be awarded to him can be departed from due to the failure to adjust to the pre motion protocol.
The tribunal mentioned that the reminder e-mail of 16 March 2025 didn’t adjust to the pre motion protocol, and dismissed the appellant’s argument that the pre motion letter despatched in December 2024 to problem the refusal of the choice couldn’t be relied on as compliance given it didn’t increase the matter of delay. The tribunal mentioned it could have been cheap for a pre motion letter regarding the delay to have been despatched and because of this made no order for prices.
Each of the appellants appealed.
The Court docket of Attraction’s resolution
Close to the main case on prices of M v Croydon [2012] EWCA Civ 595, the Court docket of Attraction allowed Mrs Nisar’s attraction, disagreeing with the tribunal that the Dwelling Workplace ought to have been contacted once more earlier than the judicial assessment was lodged. The courtroom took into consideration the protracted historical past of the matter and located that the Dwelling Workplace’s letter saying {that a} resolution can be made by 21 August 2023 amounted to a authorized obligation. The courtroom said:
The specter of the declare achieved all that the Appellants have been searching for. Their solicitors issued the declare earlier than figuring out that the Respondent was about to problem the choice, after the agreed deadline: they acted fairly in doing so; and in these circumstances the SSHD ought to have been ordered to pay prices in respect of the temporary interval as much as the compromise of the declare.
The second appellant, Mr Mammedov’s attraction was dismissed, with the courtroom agreeing with the tribunal that “”it could have been cheap, and in accordance with the overriding goal, for the Applicant to lift the (new) problem of delay by way of a pre-action letter previous to issuing the declare for judicial assessment”.
Conclusion
This appears a superb and honest resolution, in addition to a reminder of the significance of making certain that the pre motion protocol is strictly complied with, significantly in non pressing circumstances the place there may be ample time to do. In any other case, as we now have seen right here, prices might be in danger.
