Nisar v Secretary of State for the Home Department: costs in immigration judicial review

The Court of Appeal has clarified the approach to costs awards in immigration judicial review proceedings where the Home Office fails to meet self-imposed deadlines for making decisions. In R (Nisar) v Secretary of State for the Home Department [2025] EWCA Civ 1646, Lord Justice Bean distinguished between cases involving clear commitments and those based on mere aspirational timescales.

The appeals concerned two separate challenges to delays in entry clearance decisions. Mrs Nisar, a Pakistani national, had endured a protracted application process spanning multiple refusals and reconsiderations since June 2022. Following her fourth pre-action letter, the Home Office responded on 25 July 2023 stating that a decision would be made by 21 August 2023, "absent special circumstances". The decision was made on 22 August but not communicated until 23-24 August, after judicial review proceedings had been issued.

Mr Mammedov, a Turkmenistani national, faced similar delays. However, the Home Office's letter to him stated only that they would "aim to" issue a decision by 20 March 2025, "absent special circumstances". When no decision materialised by that date, proceedings were issued on 21 March. The decision was made on 28 March.

In both cases, the Upper Tribunal made no order as to costs, prompting appeals to the Court of Appeal.

The competing principles

The Court of Appeal applied the established framework from R (M) v Croydon LBC [2012] EWCA Civ 595, which provides that where a claimant obtains substantially all the relief sought, costs should normally follow. However, the court must consider whether the claim was causative of the relief obtained, as emphasised in Speciality Produce Ltd v Secretary of State for the Environment [2014] EWCA Civ 225.

The pre-action protocol serves a crucial function in enabling dispute resolution without recourse to proceedings. Compliance with the protocol is therefore a relevant factor when exercising discretion on costs.

The critical distinction

The Court of Appeal allowed Mrs Nisar's appeal whilst dismissing Mr Mammedov's, drawing a clear distinction between the two cases. In Nisar, the Home Office's letter of 25 July 2023 was found to create a legal obligation to make and communicate a decision by 21 August. The unequivocal nature of the commitment, combined with the protracted history of delays and reconsiderations, meant it was reasonable to issue proceedings when the deadline passed without explanation or request for additional time.

Lord Justice Bean rejected the Upper Tribunal's criticism that Mrs Nisar's solicitors should have contacted the Home Office to enquire about the decision. The clear commitment removed any obligation to make further enquiries once the deadline expired.

By contrast, in Mammedov, the Home Office had merely stated an aim to decide by the specified date. This created no legal obligation. The delay had not reached such an excessive level as to be manifestly unreasonable, and the issue of delay had not been raised in prior pre-action correspondence. The Court of Appeal held that UTJ Hirst was entitled to conclude that a further pre-action letter specifically addressing delay would have been reasonable before issuing proceedings.

Practical implications

The decision underscores the importance of precise language in Home Office correspondence. A statement that a decision "will be made" by a date creates different expectations and obligations from one indicating the department will "aim to" meet that timeline. Where unequivocal commitments are made and then breached without explanation, claimants are entitled to act promptly without further correspondence. However, where commitments are qualified or merely aspirational, additional pre-action correspondence may be required before costs can be recovered.

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