Judge rejects West Midlands councils’ costs offer on asylum judicial review challenge

The High Court has refused to issue a costs order requiring the Home Office to pay nearly £150,000 in legal costs to seven local authorities who have brought a legal challenge to the asylum’s voluntary dispersal policy of the department.

In September 2021, the seven councils – Birmingham, Coventry, Dudley, Sandwell, Walsall, Wolverhampton and Stoke-on-Trent – suspended their participation in the then voluntary scheme after saying repeated attempts to urge the Home Secretary to immediately review and reform the initial policy had failed.

However, in May this year councils said they had withdrawn their legal challenge following a new Home Office policy which would require all local authorities in England, Scotland and the Country of Wales to receive asylum seekers.

Despite their judicial review application being withdrawn, the local authorities sought a High Court order which would have seen the Home Office pay the full costs of the judicial review proceedings – around £149,000 including VAT – on an indemnity basis.

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In City of Wolverhampton Council & Ors, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 1721, the local authorities argued that, as the policy they had challenged in their pre-procedure had been superseded by a new policy which they supported, they had in essence achieved what they had set themselves. In light of the new policy, they were the winning party and should therefore recover their costs.

They also argued that the new policy was “unexplained except with reference to the legal challenge”. They claimed that the litigation and the timing of the hearing triggered the policy change.

However, the Home Secretary argued that there should be no order as to costs because the circumstances did not support the claim that the judicial review challenge “caused or contributed to the change of Politics”. The claim had been “overtaken by events”, there had been an “event occurring” and the claim had not been conceded.

Judge Fordham did not accept local authorities’ arguments that it would be appropriate to order costs in their favor in the circumstances of this case, “much less to order costs on an indemnity basis”.

“I have concluded that the new policy adopted in April 2022 is that which has been adopted as the correct policy, on the substance of the policy, in light of all relevant considerations regarding the modalities of asylum dispersal, including supply issues and demand issues,” the judge added. .

“It was not, in my view, caused or materially contributed by the fact of the judicial review application or the defendant’s perception as to the risk of defeat in the judicial review proceeding.”

In conclusion, the judge concluded that the proper order was that there was no order as to costs.

Adam Carey