Secretary of State for the Home Department, R (on the application of) v Special Immigration Appeals Commission

SIAC has no inherent jurisdiction to award costs. Its review jurisdiction under section 2D of the Special Immigration Appeals Commission Act 1997 permits it to apply judicial review principles and make substantive orders or relief appropriate to the review. It does not confer the High Court’s general ancillary costs jurisdiction.

Any SIAC costs power must derive from rules made by the Lord Chancellor under section 5, as applied to reviews by section 6A. In the absence of such rules, SIAC cannot make a costs order. Where the Secretary of State withdraws the decision under review, rule 11A treats the application as withdrawn automatically. SIAC then has no judicial discretion to determine costs or other consequential matters.

The Secretary of State challenged a decision of SIAC concerning an application by FGF to review the refusal of his naturalisation application. The Secretary of State withdrew the refusal during the SIAC proceedings. SIAC treated the review as withdrawn under rule 11A of the Special Immigration Appeals Commission (Procedure) Rules 2003, but later held that it had jurisdiction to award FGF his costs and ordered the Secretary of State to pay them.

The Secretary of State sought judicial review. The central questions were whether section 2D of the Special Immigration Appeals Commission Act 1997 conferred a costs jurisdiction, and whether any such jurisdiction survived withdrawal of the decision under review.

1. Claim allowed. SIAC’s judgment and costs order were quashed.
2. SIAC is a statutory court with no inherent jurisdiction. Sections 2D(3) and 2D(4) must be read together. They require SIAC to apply judicial review principles when determining the substantive review and permit it to make orders or grant relief appropriate to setting aside the decision, such as remittal. They do not confer the High Court’s general ancillary jurisdiction to award costs.
3. The procedural source of any costs power is section 5 of the Special Immigration Appeals Commission Act 1997, as applied to reviews by section 6A. Section 5(1)(c) and section 5(4)(b) enable the Lord Chancellor to make rules concerning matters incidental to reviews and ancillary powers. The source of a power and the decision whether to exercise it are distinct. The absence of costs provisions in the Rules meant that no costs regime had been created.
4. The reasoning of the Court of Appeal in C7 applied equally to reviews. Legal certainty and the separation of legislative and judicial functions supported the conclusion that any costs regime should be established by Parliament or by rules made under section 5. A one-way costs regime could not be inferred from legislative purpose or fairness.
5. The absence of a costs power did not breach common-law access to justice principles. The reliance on article 14 of the Convention, read with article 8 and A1P1, disclosed no relevant difference in treatment between persons in analogous situations and provided no basis for a Convention-compatible reinterpretation of section 2D(4).
6. Issue 2 was also decided in favour of the Secretary of State. Under rule 11A, withdrawal of the challenged decision automatically treated the review application as withdrawn. SIAC’s notice recorded a pre-existing legal consequence; it was not a judicial decision bringing proceedings to an end. SIAC therefore had no jurisdiction to make a costs order after withdrawal.
7. The conclusions applied equally to reviews under sections 2C to 2F because those provisions are materially the same as section 2D. The parties were directed to submit an agreed draft order dealing with consequential matters.

This was a first-instance judicial review claim. SIAC had held, in a judgment dated 23 February 2024, that it possessed jurisdiction to award FGF his costs after the Secretary of State withdrew the decision under review. The Administrative Court allowed the claim and quashed SIAC’s judgment and order.