Secretary of State for the Home Department, R (on the application of) v Special Immigration Appeals Commission [2025] EWHC 2019 (Admin)

[2025] EWHC 2019 (Admin)Case No AC-2024-LON-000883
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 July 2025
Before
DAME VICTORIA SHARP(PRESIDENT OF THE KING’S BENCH DIVISION)MRS JUSTICE FARBEY DBE
THE KINGon the application of
Between
SPECIAL IMMIGRATION APPEALS COMMISSIONDefendant(1) FGFInterested Parties(2) H7Interested Party(3) H15Interested PartySECRETARY OF STATE for HOME DEPARTMENTMs Lisa Giovannetti KC and Mr Richard Evans (instructed by the Government Legal Department) for ClaimantMr Nick Armstrong KC and Ms Emma Daykin (instructed by Deighton Peirce Glynn Solicitors) for Second and Third Interested Parties for The Defendant did not appear and was not represented. for The First Interested Party did not appear and was not represented.Hearing Hearing date: 1 July 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 31 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Dame Victoria Sharp (President of the King's Bench Division) and Mrs Justice Farbey:

[1]The question raised by this claim for judicial review, brought by the Secretary of State for the Home Department, is whether the Special Immigration Appeals Commission (“SIAC”) had jurisdiction to order the Secretary of State to pay costs. In the SIAC proceedings, the First Interested Party (anonymised as FGF) had sought a review of the Secretary of State’s refusal to grant him naturalisation as a British citizen. The Secretary of State withdrew the refusal part-way through the SIAC proceedings so that the review did not proceed. FGF sought his costs. The Secretary of State resisted the costs application on the grounds that SIAC had no jurisdiction to make a costs order.[2]For reasons set out in a judgment dated 23 February 2024, SIAC concluded that it had jurisdiction to award costs to FGF. By order of the same date, SIAC awarded FGF his costs and transferred to the High Court any detailed assessment of those costs, if not agreed.[3]FGF has played no part in the present claim. H7 and H15 (who are subject to anonymity orders) have been joined as the Second and Third Interested Parties by order of the court. They have each applied for their costs in their own SIAC proceedings. The determination of their costs applications has been stayed by SIAC pending the outcome of the present claim. H7 and H15 contend that they have an interest in the claim as their costs applications will fail if SIAC’s judgment is overturned.[4]H7 and H15 have not yet been the subject of any decision about costs and have no interest in FGF’s costs. It is commonplace for a judgment to have an influence on, or binding effect in, other cases that have yet to be decided. We do not consider that H7 and H15 are “directly affected” by the present claim, which is the test for qualifying as an interested party (CPR 54.1(2)(f)). Nevertheless, we were prepared to hear Mr Nick Armstrong KC, who appeared with Ms Emma Daykin on behalf of H7 and H15, in accordance with the previous order of the court. Mr Armstrong had appeared for FGF in SIAC.

The issues

[5]As formulated for us by the parties, the following issues arise for our decision: i. Issue 1: Does SIAC have jurisdiction to award costs in cases where an applicant has applied, pursuant to section 2D of the Special Immigration Appeals Commission Act 1997 (“the SIAC Act” or “the Act”), to have a naturalisation decision set aside? ii. Issue 2: Further or alternatively, does SIAC have jurisdiction to award costs in cases where an applicant has applied, pursuant to section 2D, to have a naturalisation decision set aside, but that application is withdrawn?

Alternative remedy

[6]Mr Armstrong maintained in writing that the Secretary of State had a right of appeal to the Court of Appeal against the adverse costs order. He submitted that the appeal right was an adequate alternative remedy, so that the Secretary of State should not have resorted to judicial review proceedings. Ms Lisa Giovannetti KC, who appeared with Mr Richard Evans on behalf of the Secretary of State, submitted that there was no right of appeal from SIAC’s decision and that a claim for judicial review represented the only means of challenge.[7]The right of appeal in SIAC review proceedings is governed by section 7(1A) of the Act. Under that section, an appeal right arises only where SIAC has “made a final determination of a review” and an appeal may be brought only against “that determination.” There is force in Ms Giovannetti’s submission that the Secretary of State withdrew the decision in FGF’s case before any final determination was reached. Moreover, the wording of section 7(1A) suggests that the subject of the appeal must be the determination of the review. Section 7(1A) would therefore appear to exclude appeals against decisions on ancillary matters such as costs.[8]We do not however need to decide whether a right of appeal existed because Mr Armstrong accepted that the availability of an appeal right would not deprive the Administrative Court of jurisdiction to determine the claim but would be relevant only to the court’s discretion to hear it (Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 580-581, per Lord Oliver of Aylmerton). He agreed, albeit on a pragmatic basis, that we should determine the claim as the proceedings had reached a substantive hearing for which the court was ready. Given Mr Armstrong’s position, we did not hear full argument on the extent of any right of appeal and prefer to reach no conclusion on that question.

SIAC’s jurisdiction

[9]Before turning to the facts, it is convenient to give an overview of SIAC’s jurisdiction.

Appellate and review functions

[10]By virtue of section 1 of the SIAC Act as amended, SIAC is a superior court of record which exercises the jurisdiction conferred by the Act. (SIAC also exercises jurisdiction conferred by Schedule 4A to the British Nationality Act 1981. This latter jurisdiction is not relevant to the present claim. We say no more about it.)[11]It is common ground that SIAC has no inherent jurisdiction. Its powers are bestowed by the SIAC Act. When the Act came into force, it created an appellate jurisdiction which is now to be found in sections 2 and 2B. Following amendments to the Act, SIAC now also has a review jurisdiction which is to be found in sections 2C-2F.[12]FGF brought an application for review under section 2D of the Act which provides as follows (as amended):
“2DJurisdiction: review of certain naturalisation and citizenship decisions (1) Subsection (2) applies in relation to any decision of the Secretary of State which— (a) is either— (i) a refusal to issue a certificate of naturalisation under section 6 or 18 of the British Nationality Act 1981 to an applicant under that section, or (ii) a refusal to grant an application of the kind mentioned in section 41A of that Act (applications to register an adult or young person as a British citizen etc.), and (b) is certified by the Secretary of State as a decision that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public— (i) in the interests of national security, (ii) in the interests of the relationship between the United Kingdom and another country, or (iii) otherwise in the public interest. (2) The applicant to whom the decision relates may apply to the Special Immigration Appeals Commission to set aside the decision. (3) In determining whether the decision should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings. (4) If the Commission decides that the decision should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings.”
[13]It may therefore readily be seen that the distinguishing feature of SIAC’s jurisdiction under 2D – as in other aspects of its appellate and review jurisdictions – is the consideration of sensitive information that cannot be made public on grounds of national security, international relations or some other public interest. SIAC’s specialised constitution and unique procedures enable it to perform this function effectively (U3 v Secretary of State for the Home Department [2023] EWCA Civ 811, [2024] K.B. 433, paras 172 and 175 per Elisabeth Laing LJ).[14]H7 and H15 applied to SIAC under section 2F of the Act which establishes a right to a SIAC review of a decision made by the Secretary of State in relation to a person’s entitlement to enter or remain in the United Kingdom or in relation to a person’s removal. The right is conferred in cases certified by the Secretary of State as reliant on sensitive information and is expressed in materially the same terms as section 2D. In particular, section 2F(3) provides that, in determining whether the decision should be set aside, SIAC “must apply the principles which would be applied in judicial review proceedings.” Section 2F(4) confers a discretion on SIAC “to make any such order, or give any such relief, as may be made or given in judicial review proceedings” if it decides to set aside the decision under challenge.[15]Sections 2C and 2E of the SIAC Act established rights of review in SIAC in relation to (respectively) decisions to exclude a person from the United Kingdom and deportation decisions. These sections mirror section 2D. SIAC will apply judicial review principles (sections 2C(3) and 2E(3)). In deciding to set aside any decision, SIAC may make any such order or give any such relief as may be made or given in judicial review proceedings (sections 2C(4) and 2E(4)).[16]The distinction between SIAC’s appellate and review jurisdictions was described in U3 v Secretary of State for the Home Department [2025] UKSC 19, [2025] 2 W.L.R. 1041, para 43 per Lord Reed PSC:
“… it is important to understand at the outset that an appeal to SIAC, whether under section 2 or section 2B of the 1997 Act , is an appeal in reality as well as in form, and is not equivalent to an application for judicial review. Equally, in determining the issues raised by an appeal under those provisions, SIAC is not necessarily confined to the application of administrative law principles. Those points are apparent from the contrast between sections 2 and 2B, on the one hand, and sections 2C, 2D, 2E and 2F, on the other hand. The latter provisions provide for the ‘review’ of the decisions to which they apply, and expressly require SIAC, in determining whether the decision in question should be set aside, to apply the principles which would be applied in judicial review proceedings. No such provisions appear in sections 2 or 2B.”

SIAC procedures

[17]Sections 5 and 6A of the Act empower the Lord Chancellor to make rules of procedure for the exercise of SIAC’s appellate and review jurisdictions. Section 5 grants rule-making powers in relation to the appellate jurisdiction and provides (in so far as relevant):
“(1) The Lord Chancellor may make rules— (a) for regulating the exercise of the rights of appeal conferred by section 2 or 2B above … and (c) for other matters preliminary or incidental to or arising out of such appeals, including proof of the decisions of the Special Immigration Appeals Commission. … (2A) Rules under this section may, in particular, do anything which may be done by Tribunal Procedure Rules. (3) Rules under this section may, in particular— (a) make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal, (b) make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him, … (4) Rules under this section may also include provision— … (b) conferring on the Commission such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of its functions. … (6) In making rules under this section the Lord Chancellor shall have regard, in particular, to— (a) the need to secure that decisions which are the subject of appeals are properly reviewed, and (b) the need to secure that information is not disclosed contrary to the public interest”
(emphasis added).

… and

[18]By virtue of section 6A, section 5 applies, and must be read in such a way that it applies, to reviews under sections 2C-2F. By this legislative mechanism, the Lord Chancellor may make rules that govern not only the procedure for the determination of reviews (section 5(1)(a)) but also mattersthat are incidental to or arise out of reviews (section 5(1)(c)) and other ancillary powers in reviews (section 5(4)(b)).[19]The present rules are the Special Immigration Appeals Commission (Procedure) Rules 2003 as amended (“the Rules”). Rule 11A provides:
“11A Withdrawal of appeal or application for review (1) An appellant may withdraw an appeal or application for review— (a) orally, at a hearing; or (b) at any time, by filing written notice with the Commission. (2) An appeal or an application for review shall be treated as withdrawn if the Secretary of State notifies the Commission that the decision to which the appeal or application for review relates has been withdrawn. (3) If an appeal or application for review is withdrawn or treated as withdrawn, the Commission must serve on the parties and on any special advocate a notice that the appeal or application for review has been recorded as having been withdrawn.”
[20]Against this legal background, we turn to the facts.

Facts

[21]FGF made an application for naturalisation as a British citizen on 27 January 2020. In a decision made on 16 February 2022, the Secretary of State refused the application on the grounds that FGF did not meet the requirement of good character under section 6(1) of, and paragraph 1 of Schedule 1 to, the British Nationality Act 1981. At the same time, the Secretary of State certified under section 2D(1)(b) of the SIAC Act that the decision had been made wholly or partly in reliance on information which should not be made public. The effect of the certification was that any challenge to the decision had to be brought by way of a review in SIAC (section 2D(2) of the SIAC Act).[22]On 23 February 2022, FGF applied to SIAC for a review. Legal aid is available for review proceedings brought under section 2D but FGF did not qualify because his income and capital exceeded the relevant threshold. FGF came to an arrangement about funding with the solicitors who represented him. In a witness statement produced for SIAC, the solicitor with conduct of FGF’s case confirmed that solicitors and counsel had agreed to represent FGF under a heavily discounted conditional fee arrangement.[23]On 2 August 2022, the Secretary of State withdrew the decision in order to consider further evidence from FGF.[24]On 11 August 2022, SIAC served a notice, signed by Jay J (SIAC Chairman), recording that FGF’s application was to be treated as having been withdrawn pursuant to rule 11A. The Secretary of State remade the decision on 2 August 2023, with the application again being refused. FGF applied to SIAC for a review of the remade decision. In a judgment dated 30 September 2024, SIAC granted FGF’s application and quashed the Secretary of State’s decision.[25]Meanwhile, on 12 June 2023, FGF had applied to SIAC for his costs of the first review proceedings. The costs application was heard on 15 February 2024 before Jay J, Upper Tribunal Judge O’Callaghan and Mr Roger Golland. As we have mentioned, in a written judgment and order dated 23 February 2024, SIAC allowed FGF’s costs application.[26]We were addressed about the facts of H7’s and H15’s cases. We see no reason to set them out here as they were not before SIAC when it took the decision that forms the subject of the present challenge. On conventional public law principles, the facts of other cases (yet to be heard) were not relevant to SIAC’s judgment or order. We are disinclined to be drawn into factual matters that have nothing to do with the decision under challenge. The consideration of facts relating to H7 and H15 would be a distraction from the issues in the claim. It would be tantamount to treating H7 and H15 as having claims in their own right when they are interested parties and not claimants.

SIAC’s judgment and order

[27]In its judgment, SIAC recognised that its jurisdiction was entirely statutory. It was therefore necessary to ascertain whether there was anything in the SIAC Act which conferred on SIAC the power to award costs in favour of an applicant where the Secretary of State had withdrawn the decision under review (paras 9 and 38 of the judgment).[28]SIAC undertook this exercise by considering first of all whether it had the power to award costs where an applicant is successful such that the decision under review is set aside. SIAC held that section 5 of the Act was not the source of any such power because the Rules were “silent about costs” (para 38 of the judgment). Section 2D(3) did not contain any power to award costs because its function was to specify the principles that must be applied to ascertaining the merits of the application for review (para 39 of the judgment).[29]Focusing on section 2D(4), SIAC held that the subsection was drafted in “extremely wide” terms, as it permitted SIAC to make any order that the High Court may make in judicial review proceedings. It followed that SIAC had jurisdiction to grant declaratory relief and make a quashing order in the same way that the High Court may grant such relief under section 31 of the Senior Courts Act 1981 (“the 1981 Act”). Just as section 31 of the 1981 Act was “incorporated by reference” in section 2D(4) of the SIAC Act, there was no reason why a power to award costs was not incorporated by reference to section 51 of the 1981 Act which confers a discretion on the High Court to award costs (para 39 of the judgment).[30]SIAC went on to hold that the natural and ordinary meaning of the words “make any such order” was wide enough to cover an order for costs. The new review jurisdictions in sections 2C-2F were intended to be based on the application of judicial review proceedings “from cradle to grave.” Parliament cannot have overlooked that costs are payable in judicial review proceedings (para 42 of the judgment).[31]SIAC acknowledged that, as section 2D(4) was concerned only with SIAC’s powers when it decided to set aside a decision, the incorporation of a costs power would mean that only an applicant (and not the Secretary of State) could recover costs if successful. SIAC held that the “probable reason” for this anomaly was that “Parliament thought that in a procedure which is so heavily dependent on CLOSED material it would be unfair to subject an applicant to a further possible penalty” (para 46 of the judgment). There was “no reason of purpose and/or policy why SIAC should not possess all the powers of the High Court in these circumstances” (para 47 of the judgment). SIAC had, therefore, the jurisdiction to award costs to a successful applicant.[32]Having considered the case of a successful applicant, SIAC went on to consider whether it had a costs power in cases where the Secretary of State had, as in FGF’s case, withdrawn the decision under challenge. SIAC held that it would be unappealing if costs could be awarded where an applicant succeeded but could not be awarded if the Secretary of State withdrew a decision. It would lead to the anomaly that the Secretary of State could withdraw a decision part-way through a SIAC hearing when she knew that she would be likely to lose (para 50 of the judgment).[33]SIAC did not regard the terms of rule 11A as a bar to its jurisdiction. As we have set out above, rule 11A(2) requires an application for review to be treated as having been withdrawn if the Secretary of State notifies SIAC that the decision under challenge has been withdrawn. Rule 11A(3) requires SIAC to serve notice that the application has been recorded as “having been withdrawn.” SIAC held that it retained a costs jurisdiction even after an application has been withdrawn, as follows:
“52. One needs to be clear what SIAC is doing when notified by [the Secretary of State] that the relevant decision has been withdrawn. SIAC still has to do something which brings the proceedings to an end, as does the Administrative Court when notified that the decision-maker has withdrawn the decision at issue. There may be further consequential matters to consider such as the continuation of an anonymity order. The case remains on SIAC’s books until it has formally been brought to an end by the service of the prescribed notice. In serving that notice it is therefore important to recognise that SIAC makes a judicial decision. 53. In the Administrative Court the parties may serve a consent order relating to the underlying decision but the successful party may invite the issue of costs to be determined. That often happens, and no one could doubt that jurisdiction exists. Mr Armstrong is right to seek to draw as complete a parallel as possible with judicial review proceedings.”
[34]SIAC went on to conclude that where the decision had been withdrawn, it had the power to award costs in the same way as if the decision had been set aside. It proceeded to order that the Secretary of State pay FGF his costs in the following terms:
“1. The [Secretary of State] shall pay [FGF’s] reasonable costs of both (a) the review of the decision dated 16 February 2022 and (b) the determination of the costs liability, to be subject to a detailed assessment on the standard basis if not agreed. 2. Any such detailed assessment to take place in the High Court.”

Previous case law

[35]The question of costs in SIAC has been considered to some degree in a number of previous cases, to which we now turn.

Ignaoua

[36]In R (Ignaoua & Ors) v Secretary of State for the Home Department [2014] EWHC 1382 (Admin), the Divisional Court stayed the claimants’ applications for judicial review on the grounds that the claimants had the right to apply for a SIAC review under the SIAC Act. In reaching this conclusion, the court (Ouseley J with whom Irwin J agreed) took into consideration a number of different factors including the “legislative steer” that was provided by the establishment of SIAC’s review jurisdiction; the suitability of SIAC review proceedings as an alternative remedy to judicial review; and the advantages of SIAC’s experience and expertise in cases involving sensitive material.[37]As a final factor, Ouseley J observed at paragraph 38 of the judgment that it would be difficult to see any disadvantages to an individual bringing a challenge in SIAC rather than in the High Court. He noted that there would be an advantage for a person losing in SIAC as the SIAC Act provided for a successful applicant to recover his or her costs but did not provide for an unsuccessful applicant to pay costs to the Secretary of State.[38]Mr Armstrong submitted that we should follow Ignaoua, and accept that SIAC has a costs jurisdiction that may be exercised in favour of successful applicants for review, unless we are convinced that Ignaoua is wrong. There is, however, nothing in the judgment to indicate whether the court in Ignaoua heard argument on that point and we do not have the benefit of any reasoning from the court on the point.[39]We agree with Ms Giovannetti that the observations in Ignaoua on the costs advantages for an applicant in SIAC are not part of the “principles accepted and applied as necessary grounds of the decision” (Sir Frederick Pollock cited by Lord Denning in Close v Steel Co of Wales Ltd [1962] A.C. 367, 388-389; approved by Lord Reed PSC in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] A.C. 223, para 96). We do not accept that Ouseley J’s observations on costs are authority for a proposition of law that forms part of the ratio decidendi. We do not regard Ignaoua as binding.

C7: the judgment in SIAC

[40]In C7 v Secretary of State for the Home Department (Appeal No.: SC/171/2020; 18 March 2021), SIAC (Chamberlain J sitting alone) held that the power to award costs in an appeal under section 2B is not part of the jurisdiction conferred on SIAC by statute. He observed in brief terms at paragraph 3 of the judgment that, by contrast, in proceedings for review under (for example) section 2D(4), SIAC had express power to make an order for costs. These remarks are plainly obiter dicta and we are not bound by them. No record of the argument (if any) about costs under section 2D(4) or about SIAC’s review powers is to be found in the judgment. The judge did not (and did not need to) give a reasoned judgment on that point, which was not before him for decision.

C7: Court of Appeal

[41]In C7 v Secretary of State for the Home Department [2023] EWCA Civ 265, [2023] K.B. 317, the Court of Appeal heard and dismissed C7’s appeal from Chamberlain J. Elisabeth Laing LJ (with whom Underhill and Dingemans LJJ agreed) stated expressly that her judgment did not concern SIAC’s powers in reviews (para 5).[42]In relation to appeals under section 2B, Elisabeth Laing LJ held that SIAC had no inherent or implied power to award costs. Any costs powers would derive from section 5 of the Act and from rules made by the Lord Chancellor under that section. For present purposes, the key parts of her reasoning are as follows:
“74… the language of section 5, which conferred on the Lord Chancellor, in very broad terms, powers to regulate SIAC's procedure, evinced a clear intention that, if SIAC was to have any power to award costs, it could only be conferred by rules made by the Lord Chancellor. An inherent power to award costs (or, indeed, to make any rules about its own procedure) could not co-exist with the powers conferred on the Lord Chancellor by section 5, which occupied the relevant field. … 82… There is a detailed statutory code governing SIAC's procedural powers. The rule-maker under that code is the Lord Chancellor, not SIAC. If the Lord Chancellor has not made a rule authorising SIAC to make an award of costs, SIAC does not have an implied power to do so”
(emphasis added). We shall return to this reasoning below.[43]In a paragraph cited by SIAC, Elisabeth Laing LJ stated as follows:
“83. I should make clear that, in reaching this conclusion, I have not been influenced by the amendments to the 1997 Act which gave SIAC power to set aside certain decisions on a statutory review (sections 2C-2E). I do not consider that these changes, which arguably gave SIAC a power to award costs in those contexts, can cast light on the meaning of section 5, which, for present purposes, was in its current form before the statutory review amendments were made.”
[44]This paragraph does not assist Mr Armstrong. First, Elisabeth Laing LJ is here saying that the enactment of SIAC’s review powers cannot cast light on the meaning of section 5. We do not see how that conclusion is relevant to interpreting the review powers. Secondly, Elisabeth Laing LJ says no more than that the changes brought about by the enactment of the review powers “arguably” included a power to award costs in reviews. It is plain that, by describing the point as arguable, she left open the question whether SIAC has a costs power in reviews and did not decide that question.

Other case law

[45]The question whether the Investigatory Powers Commission (“IPT”) had the power to award costs arose in McCaffrey & Anr v Chief Constable of the Police Service of Northern Ireland & Ors [2025] UKIPTrib 2 which was decided by a specially convened constitution of five senior IPT members (Lord Justice Singh P, Lord Boyd of Duncansby VP, Lady Carmichael, Johnson and Chamberlain JJ). Giving the judgment of the Tribunal, Singh LJ held that the IPT’s statutory jurisdiction did not make provision for the award of costs.[46]Plainly, the IPT was considering its own powers within the relevant statutory framework: the Regulation of Investigatory Powers Act 2000 and the rules made under it. That framework is not under consideration in the present claim. Nevertheless, Singh LJ’s judgment is illuminating. In particular, he observed at paragraph 69 that there was no express reference to costs orders in the governing statute or rules. Where Parliament intended to confer costs powers on a tribunal, or at least to confer the power to make rules enabling such orders to be made, it has done so expressly as in section 13 of the Employment Tribunals Act 1996.[47]In the context of the IPT provisions too, the effect of assuming a costs jurisdiction would have been a power to award costs against only one side in litigation. Singh LJ held (at para 71) that “[a]lthough it is possible that that is what Parliament intended, it would be surprising that that has not been spelt out clearly in the terms of the governing legislation.” He reiterated the point later in the same paragraph when he said that it would be expected that Parliament would set out clearly and on the face of the legislation an asymmetry in the power of the IPT to award costs.[48]In the following paragraphs of the judgment, Singh LJ considered matters in a broader constitutional context and held:
“74. … If the [IPT] does have power to award costs, it is difficult to see any principled basis on which that could be limited to orders only against respondents. In effect the Tribunal would be engaging in legislation, rather than judicial decision-making. This would also not be conducive to the interests of legal certainty. Applicants and indeed respondents are entitled to know what the criteria will be for the award of costs but those criteria do not appear in any legislation. 75. In our view, if there is to be a jurisdiction to award costs conferred on the Tribunal, it would be better for this to be achieved either by rules made by the Secretary of State or in primary legislation enacted by Parliament. This would have the merit of creating legal certainty, so that everyone concerned would know what the criteria are for the award of costs. It would make it clear whether the power to award costs could only be exercised against respondents or whether it would also be available against applicants. It would also make it clear whether the Tribunal should have a general discretion to award costs or whether it should be confined to situations where a party had acted unreasonably. 76. This would also have the merit that any legislative change would only be made after there had been the opportunity for public consultation. The Tribunal is not institutionally well-equipped to engage in setting up a costs regime”
(emphasis added).[49]Singh LJ’s reasoning in these paragraphs is based on broader conceptions of legal certainty and respect for the separate functions of the legislature, the executive and the judiciary. We agree that these important principles are most effectively achieved by the formulation of costs powers by Parliament in primary legislation with responsibility for implementation falling to the executive in making rules.[50]Finally in this section of our judgment, we should refer to SIAC’s judgment in H5 & Ors v Secretary of State for the Home Department (Appeal No.: SC/204/2023; 29 January 2024) which considered the effect of rule 11A. The issue before SIAC (Johnson J, Upper Tribunal Judge Blundell and Mrs Jill Battley) was whether a hearing in a review brought under section 2F should be vacated after SIAC had given a notice under rule 11A but where the special advocates nevertheless wanted to advance arguments in H5’s favour. SIAC considered whether the effect of the withdrawal of the Secretary of State’s decision was that SIAC had no further jurisdiction “save possibly for costs” (para 15). It concluded that neither section 2F(3) nor 2F(4) permitted SIAC to assume jurisdiction to make a decision about a review which sought to challenge a decision that had been withdrawn and so was no longer extant.[51]For present purposes, the key passage of SIAC’s judgment relates to section 2F(4) which (as we have already indicated) is in materially the same terms as section 2D(4). SIAC held (at para 18) that:
“…[S]ection 2F(4) is predicated on SIAC first deciding that the Secretary of State's decision should be set aside. There is no question of SIAC deciding that the decision should be set aside, because the decision has been withdrawn. There is therefore nothing to set aside…”
[52]SIAC concluded at paragraphs 22 and 28 of H5 that the effect of the withdrawal of the decision under challenge and the impact of rule 11A was that the proceedings were at an end, subject to any issues as to costs. SIAC’s concluded view as to its costs powers was not expressed in the judgment. However, its conclusion that rule 11A deprives SIAC of other aspects of its jurisdiction is hard to resist. The conclusion rests on the clear proposition that SIAC’s jurisdiction cannot be exercised in relation to proceedings that have, by virtue of rule 11A, already been brought to an end. Issue 1 The parties’ submissions

Issue 1

[53]On behalf of the Secretary of State, Ms Giovannetti submitted that, in enacting the review jurisdiction in section 2D, Parliament did not confer a costs jurisdiction – in the same way that it had not conferred a costs jurisdiction in appeals (as confirmed by the Court of Appeal in C7). She submitted that the statutory purpose of the review jurisdiction was to provide a route whereby challenges to the Secretary of State’s decision-making could be determined on consideration of the sensitive material underpinning the decision. As regards costs, she submitted that the insertion of section 6A into the SIAC Act demonstrated the Parliamentary intention to provide the Lord Chancellor with the power to make costs provisions under section 5 in review proceedings as well as in appeals. In the absence of rules made under section 5, SIAC had had no power to make a costs order.[54]Ms Giovannetti submitted that sections 2D(3) and 2D(4) should be read together. She submitted that such a reading indicates that Parliament was seeking to ensure that SIAC could make the substantive orders, specific to judicial review, in section 31 of the 1981 Act. There is no indication in the statutory language that Parliament intended to confer upon SIAC all the wider powers of the High Court, such as the general costs powers conferred by section 51 of the 1981 Act.[55]Ms Giovannetti emphasised that, in other contexts, Parliament has used express and unambiguous language to confer costs powers in primary legislation, such as section 29(2) of the Tribunals, Courts and Enforcement Act 2007 which states in terms that the tribunals covered by the Act have “full power” to determine costs. She submitted that, if Parliament had intended to confer a costs jurisdiction on SIAC, it could be expected to have used similarly clear language. She contended that Mr Armstrong’s additional arguments under article 14 of the European Convention on Human Rights (“the Convention”) lacked substance and clarity.[56]On behalf of H7 and H15, Mr Armstrong invited us to adopt SIAC’s reasoning. He agreed that the court’s task was to ascertain the legislative purpose and that sections 2D(3) and 2D(4) should be read together. As regards section 2D(3), he submitted that “the principles which would be applied in judicial review proceedings” included the particular principles of law applicable to costs that had been specifically developed in the case law by the High Court in judicial review cases (see e.g. R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607; R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415, [2016] 1 WLR 4853). In relation to section 2D(4), he submitted that the language “any such order” and “any such relief” as “may be made or given in judicial review proceedings” could not be broader. Reading sections 2D(3) and 2D(4) together, Parliament had clearly intended to include costs powers in the wide range of powers conferred by section 2D on SIAC.[57]Mr Armstrong submitted that there was no reason of principle or logic as to why Parliament would replace judicial review proceedings in the High Court with a judicial review framework in SIAC without catering for costs. He submitted that such a stark distinction would be absurd. Acknowledging that SIAC’s approach would lead to one-way costs shifting, he emphasised that an asymmetric approach was rational and not unprecedented, citing Qualified One-Way Costs Shifting in personal injury litigation.[58]Mr Armstrong submitted that, if there was no costs power, then funding arrangements used by litigants, in particular conditional fee arrangements, would “not work” (to use Mr Armstrong’s words). This would inhibit or prevent access to justice and so would amount to a breach of common law rights (R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] A.C. 869). He emphasised that the cases to date in which costs in SIAC have been considered (which we have summarised above) have suggested that SIAC has a costs power under section 2D whereas there was no authority that it lacked such a power.[59]Mr Armstrong also relied on section 3 of the Human Rights Act 1998, which requires a court to read and give effect to legislation in a way which is compatible with rights under the Convention. He submitted that section 2D(4) should be read and given effect in a way that granted SIAC a power to award FGF his costs as otherwise the provision would not be compatible with article 14 of the Convention read with article 8 and article 1 of the First Protocol to the Convention (“A1P1”).[60]We prefer Ms Giovannetti’s submissions for the following reasons.

Purposive approach

[61]In ascertaining the meaning of any legislation, the court will give effect to Parliament’s intention in enacting the legislation. To that end, the court will adopt a purposive approach by considering the context of the statute as a whole, including the historical context in which the statute was enacted (Rossendale Borough Council v Hurstwood Properties (A) Ltd [2021] UKSC 16, [2022] A.C. 690, para 10; citing R (Quintaville) v Secretary of State for Health [2003] 2 A.C. 687, para 8 per Lord Bingham of Cornhill).[62]It was common ground that, applying a purposive approach, subsections (3) and (4) of section 2D should be read together. The reference in subsection (3) is to the “principles which would be applied in judicial review proceedings.” Subsection (4) refers to orders that “may be made… in judicial review proceedings.” The similar language of both subsections means that SIAC will apply the principles of judicial review in determining a section 2D review and then, consistently with the application of those principles, it may make any order that would be appropriate in judicial review proceedings. SIAC is thereby empowered not only to set aside a decision but also (for example) to remit a case to a decision-maker for reconsideration.[63]There is no reference in either subsection (3) or subsection (4) to the powers of the High Court outside the specific context of the law of judicial review. There is nothing to suggest that Parliament was concerned with the more general jurisdiction of the High Court to make ancillary orders, such as the award of costs. That the High Court awards costs in judicial proceedings in a principled way – as expounded in cases such as M v Croydon – does not mean that it applies the principles of judicial review to costs. In the present context, “the principles which would be applied in judicial review proceedings” means the principles for determining a claim substantively.[64]SIAC relied on what it regarded as the breadth of the wording of section 2D(4) which empowers SIAC not only to grant “any such relief” but also (separately and distinctly) to “make any such order” that may be given or made in judicial review proceedings. However, the words “make any such order” must be read in the context of a subsection concerned with SIAC’s powers when it decides that the decision under review should be set aside. Having set aside the decision, SIAC may wish to make other, related orders (such as remittal). The purpose of section 2D(4) is to bestow the jurisdiction to do so. Section 2D(4) empowers SIAC to order more than a bare setting aside of a decision in the same way that the High Court can do more than order a bare quashing of a decision. There is no reason to suppose that Parliament intended that costs powers should be conferred by the same subsection that deals with orders for the substantive disposal of a review application.[65]The procedure in relation to reviews is governed not by sections 2C-2F but by section 5 of the Act (which applies to reviews by virtue of section 6A). As we have said, section 5(4)(b) empowers the Lord Chancellor to “confer on [SIAC] such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of its functions.” The award of costs would amount to the exercise of an ancillary power and so would fall within section 5(4)(b). Alternatively, the Lord Chancellor has the power to make rules of procedure for matters “incidental to or arising out of” SIAC reviews (section 5(1(c)) which may likewise cover the power to award costs.[66]SIAC rejected section 5 as the source of a costs power because the Rules are silent about costs. In our judgment, SIAC misdirected itself in law. There is a difference between the source of a statutory power and a decision whether or not to exercise that power. The source of the power is section 5 of the Act. The decision whether to exercise the power rests with the Lord Chancellor.[67]In C7, Elisabeth Laing LJ held at paragraph 74 (cited above) that the language of section 5 evinced a clear intention that, if SIAC was to have any power to award costs in appeals, it could only be conferred by rules made by the Lord Chancellor. Her reasoning applies with equal force to reviews. If Parliament had intended that the source of SIAC’s powers should be different in reviews, it would not have enacted section 6A in the terms that it did.

Historical context

[68]Mr Armstrong emphasised the historical context in which SIAC’s various review powers were introduced. Sections 2C-2D were inserted into the SIAC Act by section 15 of the Justice and Security Act 2013 with effect from 25 June 2013. Mr Armstrong cited paragraph 119 of the Explanatory Notes to the Justice and Security Act to the effect that the purpose of introducing sections 2C-2D was to enable SIAC to use a closed material procedure that would not be available in ordinary judicial review proceedings.[69]We do not regard the Explanatory Notes as enlightening in relation to costs. By conferring jurisdiction on SIAC, Parliament intended that challenges to immigration decisions made on the basis of sensitive material may be determined on consideration of all the material underpinning the decision, including the sensitive material. By virtue of its specialist constitution, SIAC is apt to undertake that task. It does not follow that Parliament intended that proceedings in SIAC should mirror proceedings in the Administrative Court in relation to costs.[70]Section 2E of the SIAC Act was inserted by section 18 of the Immigration Act 2014 with effect from 6 April 2015. We have received no Parliamentary material about it.[71]Section 2F was inserted by section 77(2) of the Nationality and Borders Act 2022 with effect from 28 June 2022. Mr Armstrong’s skeleton argument cited the Lord Commissioner of the Treasury, Craig Whittaker MP, who (we were told) introduced what is now section 77(2) for the Government during the passage of the Bill in the House of Commons. The Lord Commissioner said that the new provision would “ensure that the JR can be heard before the Special Immigration Appeals Commission.” It cannot realistically be maintained that this brief remark demonstrated a Parliamentary intention that section 2F should contain a costs power. We were not given proper details of anything else in relation to the history of the review provisions that may assist Mr Armstrong’s case.

Access to justice

[72]The UNISON case, on which Mr Armstrong relied for his submissions on access to justice, concerned the payment of a fee to the Employment Appeal Tribunal that was a condition of gaining access to a court. We agree with Ms Giovannetti that its context was therefore very different. No such obstacle presented itself to FGF before he was able to lodge his application for review and ask SIAC to determine it. As Chamberlain J held at first instance in C7 (at para 13(c)): “Many legal systems operate without [costs] powers. In our system, some tribunals have the power to award costs; others do not… There is no warrant for the suggestion that, absent an additional power to award costs, [SIAC] would be unable to do justice between the parties”.[73]The Court of Appeal in C7 expressly agreed with Chamberlain J that a power to award costs is not necessary to enable SIAC to do justice (C7, para 81 per Elisabeth Laing LJ). We are not persuaded by Mr Armstrong’s submissions that the absence of costs recovery in SIAC contravenes the common law right of access to justice.

Legislative policy

[74]SIAC attributed to Parliament an intention to confer a costs jurisdiction that would arise only where the Secretary of State’s decision is set aside. As SIAC acknowledged, the power to award costs would effectively operate only one way: in favour of a successful applicant but not in favour of the Secretary of State if the application for review failed. There is nothing to suggest that this unusual state of affairs was the legislative policy in relation to costs.[75]In its judgment, SIAC held at paragraph 46 that “the probable reason for this state of affairs is that Parliament thought that in a procedure which is so heavily dependent on CLOSED material it would be unfair to subject an applicant to a further possible penalty.” There is no Parliamentary material (such as extracts from Hansard) to suggest that Parliament intended a one-way costs regime as a matter of fairness to applicants. We were directed to no other material and to no authority that could support such a proposition.[76]Questions of whether one-way costs shifting is fair are questions of policy for the legislature. They are not questions of law for judges. We have been provided with no reason to suppose that Parliament concluded that it would be unfair to expose an applicant, but fair to expose the Secretary of State, to liability for costs. SIAC’s rationale for accepting a one-way costs jurisdiction rested on supposition and does not withstand scrutiny.

Legal certainty

[77]SIAC’s interpretation would mean that its power to award costs was unfettered in the sense that parties to SIAC review proceedings could look neither to primary legislation nor to SIAC procedure rules in order to ascertain when and how its costs jurisdiction is to be exercised. Parties appearing in SIAC are entitled to know the criteria and procedures for costs. Those criteria and procedures are more transparently and effectively laid down by the Lord Chancellor in detailed procedure rules made under section 5. In the absence of procedure rules, SIAC would have such broad discretions in the area of costs as to be unconducive to the interests of legal certainty (McCaffrey, paras 74-75, above).[78]We also agree that SIAC “is not institutionally well-equipped to engage in setting up a costs regime” (McCaffrey, para 76, above, in the context of the IPT but equally applicable to SIAC). The institutional inability to establish a costs regime is illustrated by the present case. In the absence of procedure rules for the assessment of FGF’s costs, SIAC transferred any assessment proceedings to the High Court. Counsel were unable to cast light on the power under which SIAC transferred FGF’s case to a different court. No processes or procedures in the High Court exist for dealing with costs in SIAC.

Article 14 of the Convention

[79]Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
[80]As may be seen from the language, article 14 concerns discrimination in the enjoyment of Convention rights and so it can only be considered in conjunction with one or more of the substantive rights in the Convention or its protocols. As we have mentioned, Mr Armstrong submitted that the relevant rights are those set out in article 8 of the Convention (right to respect for private and family life) and A1P1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
[81]For present purposes, it is not necessary to look further than the analysis of Lord Reed in SC and his summary of the principal elements of article 14, as follows:
“37. The general approach adopted to article 14 by the European court has been stated in similar terms on many occasions, and was summarised by the Grand Chamber in the case of Carson v United Kingdom (2010) 51 EHRR 13, para 61... For the sake of clarity, it is worth breaking down that paragraph into four propositions: (1) ‘The court has established in its case law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of article 14.’ (2) ‘Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.’ (3) ‘Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’ (4) ‘The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.’”
In addition, the alleged discrimination must relate to a matter which falls within the “ambit” of one of the substantive articles (SC, para 39).[82]SIAC did not rely on article 14 and did not deal with Convention rights. We have struggled to understand how it is said that the inability to recover costs falls within the ambit of either article 8 or A1P1. For present purposes, we are prepared to set aside this difficulty. The more fundamental question is how it is said that an inability to recover costs in SIAC is capable of giving rise to “a difference in the treatment of persons in analogous, or relevantly similar, situations” (SC, para 37(3)).[83]In advancing this part of his submissions, Mr Armstrong emphasised that a person unlawfully refused naturalisation before section 2D came into force would have been entitled to costs in judicial review proceedings in the High Court whereas a person now unlawfully refused naturalisation would (if Ms Giovannetti’s submissions were to prevail) not be entitled to costs in SIAC.[84]Mr Armstrong described the problems said to be faced by litigants and lawyers if costs in SIAC are irrecoverable. However, applicants and those who represent them in SIAC receive no different treatment to those who appear in other jurisdictions in which the power to award costs is for one reason or another not in place and who do not qualify for legal aid. Article 14 concerns unjustified difference in treatment in the sphere of Convention rights between analogous persons. In the absence of any difference of treatment at all, we are not persuaded that article 14 is engaged at all.[85]Mr Armstrong submitted that a person who has been awarded costs in earlier proceedings has an expectation that he or she will be awarded costs in later proceedings covering the same sort of ground. This submission was supported neither by authority nor by any persuasive resort to principle. When section 2D was introduced, FGF could expect to be treated in accordance with its provisions as interpreted by the courts – no more and no less. He could have no expectation that he would be treated in accordance with some other form of legal proceedings in which he was not taking part. Any other person would be in the same position as FGF: no question of difference of treatment arises, whether in relation to a Convention right or at all.[86]Mr Armstrong seemed to argue in this part of his submissions that questions of access to justice arise if a person cannot recover his or her costs in litigation. However, he did not argue that article 6 of the Convention – within which questions of access to justice fall to be considered – was engaged. He disavowed the proposition, put to him in questions by the court, that he was deploying article 14 to introduce the subject of access to justice by a side wind.[87]In short, we were presented with no coherent framework for reading section 2D(4) differently in order to preserve its compatibility with article 14. No question of incompatibility with article 14 arises. For these reasons, we reject Mr Armstrong’s article 14 arguments.[88]Accordingly, we do not agree with SIAC’s decision that it had jurisdiction to award FGF his costs. Section 2D does not provide a costs power. Unless and until the Lord Chancellor exercises rule-making powers under section 5, SIAC has no power to make a costs order. It follows that SIAC misdirected itself in concluding that it did have such a power and in ordering the Secretary of State to pay costs. The claim for judicial review must be allowed.

Issue 2

[89]Given our conclusion on Issue 1, it is not strictly necessary for us to consider Issue 2. We shall therefore set out our conclusion on this Issue in brief terms.

The parties’ submissions

[90]Ms Giovannetti submitted that, even if SIAC was correct in holding that it has jurisdiction to award costs to an applicant when it decides that the decision under review should be set aside, it erred in concluding that such a power extends to the situation where the Secretary of State has withdrawn a decision. The power to make orders and grant relief in section 2D(4) arises only if SIAC “decides that the decision should be set aside.” In FGF’s case, the decision was withdrawn. Ms Giovannetti submitted that SIAC cannot set aside a decision once it has been withdrawn. All that remains for SIAC to do is to take the formal steps of recording that the appeal has been withdrawn and giving notice to that effect under rule 11A(3). SIAC has no discretion to make any judicial decision upon the withdrawal or any other matter.[91]Mr Armstrong’s submissions on Issue 2 rested on the proposition – which we have rejected – that SIAC has a costs jurisdiction under section 2D in relation to successful review applications. He submitted that, once that costs power is established, there can be no good reason why it should not extend to cases where the application must be treated as withdrawn. He relied on SIAC’s reasoning.

Discussion

[92]By virtue of rule 11A(3), if the Secretary of State withdraws the decision under challenge, SIAC has no discretion to do anything other than serve a notice on the parties and any special advocate that the review application has been recorded as having been withdrawn. SIAC has no power to decide whether the application has been withdrawn because the application is deemed withdrawn by force of rule 11A. Serving the notice is not a judicial decision and does not flow from a judicial decision. It flows from the Secretary of State’s administrative action which has the legal effect for which rule 11A provides.[93]By concluding in paragraph 52 of its judgment (quoted above) that SIAC has to do something that brings the proceedings to an end, SIAC made an error of law. In making rule 11A, the Lord Chancellor has decided that proceedings falling within the rule are to be brought to an end automatically and without SIAC taking any decision. In its judgment, SIAC elided a judicial determination that a decision should be set aside under section 2D(4) with a record of withdrawal under rule 11A that does not yield any judicial determination. That elision is impermissible and amounts to a misdirection of law.[94]In its judgment, SIAC sought to incorporate the powers of the High Court when an application for judicial review is withdrawn. The High Court may make a variety of consequential and ancillary orders including costs. We see no basis to equate the broad powers of the High Court with the codified powers of SIAC. We agree with the observation in H5 (at para 22) that there is “no analogue to rule 11A” in High Court procedures. SIAC’s view that it has the same powers as the High Court “from cradle to grave” in any one case risks undermining the legislative confines – including rule 11A – under which SIAC operates. The withdrawal of the decision under challenge in SIAC “leads inexorably to the withdrawal of the substantive claim” (H5, para 22). It is thereafter not possible for SIAC to “breathe life into [the] proceedings” (H5, para 17).[95]Rule 11A(3) makes plain that SIAC’s notice is a record of a pre-existing state of affairs, namely that the application for a review has been withdrawn. Contrary to the view taken by SIAC, the timing of the notice is irrelevant. From the time that the Secretary of State notifies SIAC that the decision has been withdrawn, the application for a review must be deemed withdrawn and treated as no longer extant. Any decision by SIAC would relate to proceedings that have already ended. Any order for costs would have no jurisdictional purchase. SIAC’s decision to award costs to FGF after the Secretary of State withdrew the decision under challenge was made with no jurisdiction.[96]For reasons we have already set out, there is no reason to reach any different conclusion by reference to Convention rights. We would therefore allow the claim on this additional basis.

Conclusion

[97]Accordingly, the claim for judicial review is allowed and SIAC’s judgment will be quashed. The issues as framed by the parties refer to the interpretation of section 2D because SIAC interpreted section 2D in the judgment under challenge. As the provisions of sections 2C-2F are materially the same as those in section 2D, our conclusions will apply to reviews under those sections too. The parties should submit the terms of an agreed draft order reflecting our conclusions and dealing with any consequential matters.