Costs In Settled Immigration Judicial Reviews | "Will Be Made" Creates A Legal Obligation; "Aims To Issue" Does Not

Whether an SSHD deadline commitment creates a legal obligation for costs purposes turns on the language used. A commitment that a decision “will be made” by a specified date creates a binding obligation; an aspirational “aims to issue” target does not.

NISAR & ORS, R (ON THE APPLICATION OF) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2025] EWCA Civ 1646

In R (Nisar and Others) v Secretary of State for the Home Department [2025] EWCA Civ 1646, the Court of Appeal (Bean LJ (VP), King and Warby LJJ) determined linked appeals on costs following settled judicial review claims concerning delays in entry clearance decisions. In each case, the SSHD had agreed to reconsider refused visitor visa applications by a specified date, failed to meet that deadline, and issued a further refusal shortly thereafter. The appellants had commenced judicial review proceedings challenging the delay, which were discontinued upon receipt of the decisions. Applying R (M) v Croydon LBC [2012] EWCA Civ 595, the court allowed the appeal in Nisar, holding that the SSHD’s letter stating a decision “will be made” by a specific date created a legal obligation, breach of which justified proceedings. The appeal in Mammedov was dismissed; the SSHD’s aspirational language (“aims to issue”) created no such obligation, and failure to raise the new issue of delay via a Pre-Action Protocol letter justified no order as to costs.

The Home Office letter of 25 July 2023 had stated unequivocally that, absent special circumstances, a decision would be made by 21 August 2023; no special circumstances were put forward at the time, nor have any been advanced in retrospect. Of course the judge was right to say that this letter did not create an "enforceable undertaking", at least in the sense of one which could be the subject of an order for specific performance, still less of committal for contempt, but in my view it was sufficiently clear to amount to a legal obligation. The case is thus not one of the more familiar type, of which Mr Mammedov's claim is an example where the SSHD has simply taken a long time to deal with an application.

Citations

Roache v News Group Newspapers Ltd [1998] EMLR 161 The Court of Appeal held that cost decisions may only be interfered with where the judge erred in principle, omitted relevant considerations, included irrelevant ones, or the decision was plainly wrong. Burgess v Lejonvarn [2020] EWCA Civ 114 Affirmed that appellate courts should show restraint in overturning cost decisions unless a clear error of principle or unreasonableness is demonstrated. R (Parveen) v Redbridge LBC [2020] EWCA Civ 194 Held that obtaining the relief sought does not automatically entitle a claimant to costs unless it can be shown that the proceedings were causative of that outcome. R (M) v Croydon LBC [2012] EWCA Civ 595 Set out a structured approach to awarding costs in judicial review, emphasising party success, causation, reasonableness, and settlement timing relative to pre-action conduct. R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415 Noted that success in judicial review includes achieving a reconsideration, but costs depend on what was achievable and whether the proceedings caused the result. Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225 Confirmed that when alternate routes to relief exist, a successful outcome via another avenue does not warrant costs for a judicial review unless the claim was causative. R (RL) v Croydon LBC [2018] EWCA Civ 726 Held that issuing judicial review to accelerate a process underway does not justify a costs award unless the claim demonstrably expedited the outcome. ZN (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 1059 Stated that where an appeal would have failed on its merits, the claimant cannot be considered successful for costs purposes merely because the respondent took post-commencement action.

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Key Points

Where a public authority unequivocally commits, in pre-action correspondence, to making a decision by a specified date absent special circumstances, that commitment may amount to a legal obligation. Failure to meet it without explanation can make the commencement of judicial review proceedings reasonable, even if the decision follows shortly afterwards.
In costs disputes following the settlement of judicial review proceedings, whether a claimant is the successful party is a fact-sensitive assessment under M v Croydon. Obtaining a fresh decision does not of itself establish success; the court must consider whether the outcome is properly attributable to the proceedings or their threat.
The requirement that a claim be causative of the relief obtained is a relevant factor in the costs discretion, but not a strict or mechanistic test. Causation may be established where the deadline given, backed by the threat of litigation, is reasonably viewed as having accelerated the making of the decision.
Where delay is relied on as a distinct public law issue and was not raised in earlier pre-action correspondence, it will generally be reasonable to send a fresh Pre-Action Protocol letter before issuing proceedings. Failure to do so may justify departing from the general rule that costs follow the event.
In exercising its discretion on costs where proceedings settle, the court will take into account the conduct of both parties. This includes whether either could reasonably have taken a simple step to avoid proceedings, such as giving advance notice of delay or making an enquiry before issuing a claim.

“The claim of Mrs Nisar and her children thus falls fairly and squarely within category (i) of Lord Neuberger's classification in M v Croydon. The threat of the claim achieved all that the Appellants were seeking. Their solicitors issued the claim before knowing that the Respondent was about to issue the decision, after the agreed deadline: they acted reasonably in doing so; and in those circumstances the SSHD should have been ordered to pay costs in respect of the brief period up to the compromise of the claim."

Key Findings In The Case

The Secretary of State’s letter of 25 July 2023 in the Nisar case, which committed to issuing a decision by 21 August 2023 “absent special circumstances,” was held to constitute a legal obligation, not merely an aspirational timeframe. No explanation was provided by the Secretary of State for missing this deadline, thereby justifying the reasonableness of the claimants initiating proceedings when the deadline passed without notification [46].
The Nisar appellants were considered the successful party for costs purposes because they obtained the remedy sought (a decision) as a result of having issued proceedings, despite that decision ultimately refusing entry clearance. The court found the issuing of proceedings to be a reasonable and causative response to the missed deadline [47]–[48].
The claimants in Nisar issued their judicial review claim before the refusal decision had been communicated to them, which the court accepted was the earliest point at which the decision could be legally effective. This timing supported the conclusion that the proceedings were both reasonably and causatively linked to the relief obtained [45].
In Mammedov, the court found that the failure to send a further, compliant pre-action protocol (PAP) letter specifically addressing the issue of delay before issuing proceedings was a good reason to depart from the general rule that costs follow the event. The earlier PAP correspondence related to substantive refusals, not to the subsequent delay [49].
The letter in Mammedov referencing an “aim” to issue a decision within three months was not treated as imposing a legal obligation, and the applicant’s failure to pursue a proper PAP process in relation to the delay undermined any causal link between the judicial review claim and the subsequent decision. As such, no order as to costs was upheld [49]–[50].

"The statement of Patten LJ in Speciality Produce that the claim "must be causative of the relief" is not to be treated as though it was a statute, nor as imposing a strict causation test in every case. In Speciality Produce, as already noted, the Claimant company had obtained success through a separate statutory appeal. In Mrs Nisar's case the Home Office had taken upon themselves a legal obligation to give a decision, that is to say to make it and communicate it, by 21 August..’”

The Court of Appeal’s decision in R (Nisar and Others) v SSHD; R (Mammedov) v SSHD [2025] EWCA Civ 1646 confirms that the precise language of Home Office deadline commitments determines whether a legal obligation is created, with direct consequences for costs recovery in settled immigration judicial reviews.

Background

The appeals concerned two separate judicial review claims against the Secretary of State for the Home Department (SSHD), which were heard together. In both, the appellants were foreign nationals living outside the UK whose applications for entry clearance as visitors had been refused. Following pre-action correspondence, the SSHD in each case agreed to withdraw the challenged decision and make a new one, indicating a timeframe for doing so. The fresh decisions were made shortly after the indicated dates and were again refusals. In the interim period between the deadline passing and receiving the decision, each appellant commenced a claim for judicial review challenging the delay. These claims were discontinued by consent once the decisions were received. The sole remaining dispute was over costs [§1–5].

In the case of Nisar, the appellants (a mother and her four children, all Pakistani nationals) had a protracted history of refusals and reconsiderations [§6–8]. In a letter dated 25 July 2023, the SSHD stated that “a decision regarding your client’s UK visitor visa will be made by the 21/08/2023, absent special circumstances” [§11]. The decision to refuse was made on 22 August but not served until 23/24 August 2023 [§12–13]. The judicial review claim had been lodged on 22 August 2023, the same day the decision was made but before it was communicated [§12, §16]. The parties agreed to discontinue the claim, leaving costs to be determined. Upper Tribunal Judge Sheridan made no order as to costs, finding both parties’ conduct contributed to the unnecessary proceedings [§16].

In the case of Mammedov, the appellant was a national of Turkmenistan who had been living in Turkey as a student since 2016 [§19]. The SSHD’s letter of 20 December 2024 stated that “Barring complexities, the SSHD aims to issue a reconsidered decision on your client’s visit visa application within 3 months of the date of this response to your letter before claim (by 20 March 2025, absent special circumstances)” [§20]. A reminder email was sent on Sunday 16 March 2025, warning that proceedings would be issued if no decision was made by the deadline [§22]. No decision was made by 20 March, and proceedings were issued on 21 March 2025 [§23]. A refusal decision was made on 28 March 2025 [§24]. The claim was discontinued by consent. Upper Tribunal Judge Hirst also made no order as to costs, citing the appellant’s failure to comply with the Pre-Action Protocol regarding the new issue of delay [§27].

Costs Issues Before the Court

The central costs issue in both appeals was whether the Upper Tribunal judges had erred in their discretion by making no order as to costs, rather than awarding costs to the appellants as the successful parties. The legal context was the settlement of judicial review proceedings before a substantive hearing, where the defendant public authority provides the substantive remedy (a decision) after proceedings are issued. The court was required to apply the principles from R (M) v Croydon LBC [2012] EWCA Civ 595 and related authorities to determine if the appellants could be considered “successful” and whether there was a sufficient causal link between the issued claim and the obtaining of the decision to justify a costs order in their favour [§30–36].

The Parties’ Positions

The appellants argued they were the successful parties as they obtained the remedy sought—a decision on their application—as a result of issuing proceedings. In Nisar, it was submitted that the SSHD’s unequivocal commitment to decide by a specific date created a legal obligation, the breach of which reasonably triggered litigation [§17]. The judge’s conclusion that the appellants should have chased for a decision was irrational. In Mammedov, the appellant argued the reminder email of 16 March was sufficient compliance with the Pre-Action Protocol, and a further formal letter was not required given the SSHD’s prior commitment and failure to act [§28].

The respondent SSHD opposed the appeals. It argued that in neither case were the appellants “successful” in a relevant sense, as the eventual decisions were refusals. It contended there was no, or insufficient, causal link between the issued claims and the decisions being made. In Mammedov, the SSHD supported the judge’s finding that a fresh Pre-Action Protocol letter was required to complain about the delay, a new issue not raised in the earlier correspondence.

The Court’s Decision

The Court of Appeal allowed the appeal in Nisar but dismissed the appeal in Mammedov. Applying the principles from R (M) v Croydon, the court held that the exercise of discretion on costs could be interfered with only if the judge erred in principle, considered irrelevant matters, or the decision was wholly wrong [§30].

In Nisar, the court found the claim fell squarely within category (i) of M v Croydon (where a claimant is wholly successful) [§48]. The SSHD’s letter of 25 July 2023 was sufficiently clear to amount to a legal obligation to decide by 21 August 2023, even if it was not an “enforceable undertaking” in the sense of being subject to specific performance or committal [§46]. The breach of that obligation, without citing special circumstances, made the issuance of proceedings reasonable. The court rejected the Upper Tribunal’s view that the appellants should have contacted the SSHD first, noting the unequivocal nature of the commitment [§46]. The claim was causative of the relief because, without the threat of litigation backed by the deadline, the delay would have been greater [§47]. The SSHD was therefore ordered to pay the appellants’ costs of the brief period up to the compromise [§48].

In Mammedov, the court found no error in the judge’s exercise of discretion [§49–50]. The SSHD’s letter used the language “aims to issue,” which did not create a legal obligation akin to the promise in Nisar [§49]. The issue of delay had not been raised in prior pre-action correspondence, and the delay had not reached the stage where it was so excessive as to be manifestly unreasonable [§49]. The Upper Tribunal was entitled to conclude that raising this new issue via a proper Pre-Action Protocol letter before issuing proceedings was reasonable and in accordance with the overriding objective. The failure to do so constituted a good reason to depart from the general costs rule [§49].

The court emphasised that Patten LJ’s statement in Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225—that the claim “must be causative of the relief obtained”—was not to be treated as a statute nor as imposing a strict causation test in every case [§47]. The different outcomes in the two appeals turned on their distinct factual matrices, particularly the nature of the SSHD’s commitment and the reasonableness of commencing proceedings without further pre-action steps.

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