The Court of Appeal considered on 12 February 2026 how a costs order should be set after the Home Office conceded a judicial review of a visa refusal, a question that arises where a claim ends by consent.
Key facts
- Who: Claimants in judicial review proceedings against the Home Office that end by concession or consent, where costs are in dispute
- From: 12 February 2026 (judgment date)
- Source: ABB, R (on the application of) v Secretary of State for the Home Department [2026] EWCA Civ 61
Background
The case, [2026] EWCA Civ 61, was heard by the Court of Appeal (Civil Division) on 28 January 2026 before Lord Justice Baker, Lord Justice Nugee and Lady Justice Yip. Judgment was handed down on 12 February 2026. It was an appeal from the Upper Tribunal (Immigration and Asylum Chamber).
ABB had brought judicial review proceedings over a decision refusing him a visa to live in the UK. He had applied under two schemes created in the Immigration Rules after the Russian invasion of Ukraine in February 2022: the Ukraine Family Scheme and the Homes for Ukraine Sponsorship Scheme. The wording of the nationality requirement for the Homes for Ukraine scheme was amended in August 2022, after his application of 9 April 2022.
His two applications described his relationship status differently, and a statement dated 25 May 2022 explained the position.
The question
The Home Office granted ABB leave outside the Immigration Rules on 29 November 2023. A consent order filed on 30 November 2023 vacated the hearing listed for 5 and 6 December 2023, with costs reserved.
On 13 March 2024 the Government Legal Department wrote that an earlier letter had not accurately reflected the reasons for the concession. It said the Home Office was prepared to accept that, on the evidence now presented, ABB had been in a subsisting relationship around the time he left Ukraine, and that the Rules had previously been ambiguous.
A further consent order dated 12 April 2024 allowed the claim to be withdrawn, with costs to be decided on paper. On 5 August 2024 Upper Tribunal Judge Kebede ordered the Home Office to pay 75% of ABB's reasonable costs. ABB appealed, arguing that he should receive his costs in full.
The legal framework
Under CPR 44.2, the general rule is that the unsuccessful party pays the successful party's costs, but the court may make a different order, having regard to all the circumstances, including the parties' conduct and whether a party succeeded in part.
The court reviewed earlier Court of Appeal decisions. Bahta emphasised the importance of complying with the pre-action protocol and said a defendant bears the burden of justifying a departure from the general rule. M v Croydon distinguished three kinds of case: a claimant wholly successful, a claimant successful in part, and a compromise that does not reflect the claimant's claims. Where a claimant is wholly successful, it is hard to see why he should not recover all his costs unless there is good reason to the contrary.
What this means for people involved in judicial review claims
- Costs can remain in dispute even after a claim is conceded or settled by consent.
- The court looks at all the circumstances, including how each side behaved and whether the claimant succeeded in whole or in part.
- Compliance with the pre-action protocol is treated as important when costs are decided.
Sources
- ABB, R (on the application of) v Secretary of State for the Home Department [2026] EWCA Civ 61, Court of Appeal (Civil Division), 12 February 2026: https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/61