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

Sections 2D(3) and 2D(4) of the Special Immigration Appeals Commission Act 1997 confer a judicial-review jurisdiction concerning the setting aside of certified naturalisation and citizenship decisions. They do not confer a general or ancillary power to award costs. Costs procedure is instead within the Lord Chancellor’s rule-making power under section 5, applied to reviews by section 6A.

Section 3 of the Human Rights Act 1998 cannot create a costs jurisdiction where Parliament has provided a route for a costs regime to be introduced by rules. Applicants before SIAC in national-security cases are not in an analogous or relevantly similar position to applicants for judicial review in the Administrative Court. Any difference in costs arrangements is justified.

The Home Secretary withdrew a certified refusal of FGF’s application for naturalisation. SIAC treated FGF’s review as withdrawn under rule 11A of the Special Immigration Appeals Commission (Procedure) Rules 2003, but later held that it had jurisdiction to award FGF his costs.

The Home Secretary successfully sought judicial review of that costs decision. The Divisional Court quashed it and declared that SIAC had no power to award costs in review proceedings under sections 2C to 2F of the Special Immigration Appeals Commission Act 1997: [2025] EWHC 2019 (Admin). H7 and H15, whose own SIAC costs applications had been stayed, appealed despite FGF not participating.

The central questions were whether sections 2D(3) or 2D(4) supplied a costs jurisdiction, whether section 3 of the Human Rights Act 1998 required that construction to avoid Article 14 discrimination, and whether rule 11A removed any such jurisdiction on withdrawal.

1. Appeal dismissed. The Court upheld the Divisional Court’s declarations. SIAC has no jurisdiction to award costs on a review under section 2D unless the Lord Chancellor first establishes a costs regime by rules under section 5 of the Special Immigration Appeals Commission Act 1997.

2. Sections 2D(3) and 2D(4) had to be construed in their statutory and legislative context. Section 2D(2) creates a jurisdiction to decide whether the Home Secretary’s decision should be set aside. Section 2D(3) directs SIAC to apply judicial-review principles to that substantive question. Section 2D(4) then permits judicial-review relief consequential upon a decision to set aside, including the jurisdictional remedies available under section 31 of the Senior Courts Act 1981. It does not import the High Court’s general costs jurisdiction under section 51.

3. Procedure and ancillary matters, including a costs regime, are the province of section 5. By section 6A, that rule-making structure applies equally to reviews. The fact that no costs rules have been made does not transfer the rule-making power to SIAC or create an implied costs jurisdiction.

4. The principle of legality in R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115 did not assist the appellants. Parliament was entitled to establish a different SIAC procedure, including a regime in which applicants are not exposed to adverse costs orders.

5. Section 3 of the Human Rights Act 1998 could not be used to read a costs power into section 2D(4). The statute already permits the Lord Chancellor to introduce an appropriate regime. In any event, persons required to use SIAC because of national-security certification are not relevantly comparable with Administrative Court judicial-review applicants. The different procedures, closed material, special advocates, permission requirements and costs risks justified different treatment under Article 14.

6. The rule 11A issue did not arise. The existing no-costs position is unaffected when an application is withdrawn or treated as withdrawn. Singh LJ added that the choice between no, limited and full costs regimes involves policy considerations entrusted to the Lord Chancellor. H7 and H15 nevertheless had standing to appeal because the Divisional Court had made orders, including costs orders, against them.

• Court of Appeal (Civil Division): H7 and H15’s appeal was dismissed. The Court upheld the Divisional Court’s declarations that SIAC has no costs jurisdiction in reviews absent rules made under section 5 of the Special Immigration Appeals Commission Act 1997.
• Divisional Court, King’s Bench Division Administrative Court: SIAC’s costs decision in FGF’s case was quashed. The court declared that SIAC lacked power to award costs in reviews and that rule 11A brought a withdrawn review to an end: [2025] EWHC 2019 (Admin) .