SIAC Lacks Jurisdiction To Award Costs In Naturalisation Review Proceedings

SECRETARY OF STATE FOR THE HOME DEPARTMENT v SPECIAL IMMIGRATION APPEALS COMMISSION & ORS [2025] EWHC 2019 (Admin)

In Secretary of State for the Home Department v FGF[2025] EWHC 2019 (Admin), the High Court determined whether the Special Immigration Appeals Commission (SIAC) had jurisdiction to award costs in review proceedings under section 2D of the Special Immigration Appeals Commission Act 1997. FGF sought costs after the Secretary of State withdrew a refusal of his naturalisation application, prompting SIAC to order costs in his favour. The court addressed two key issues: whether SIAC’s statutory framework incorporated costs jurisdiction for section 2D reviews, and whether such jurisdiction extended to withdrawn applications under rule 11A of the SIAC Procedure Rules 2003. The Secretary of State argued SIAC lacked inherent costs powers, while FGF contended section 2D(3)-(4) imported judicial review costs principles. The court held SIAC’s jurisdiction was strictly statutory, with no implied costs power, and section 2D(3)’s reference to judicial review principles did not encompass costs. It emphasised that any costs power would require explicit conferral under section 5 of the Act, which the current rules omitted. On withdrawal, the court ruled rule 11A(2) automatically terminated proceedings, leaving no discretion for costs. Distinguishing SIAC’s codified powers from the High Court’s broader jurisdiction, it rejected parallels with judicial review costs regimes. The judicial review succeeded, quashing SIAC’s costs order and confirming no jurisdiction to award costs in such cases.

“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.”

Citations

Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 The availability of an alternative remedy such as a statutory appeal does not oust the High Court’s jurisdiction in judicial review proceedings but goes to the discretionary decision whether to grant relief. U3 v Secretary of State for the Home Department [2023] EWCA Civ 811; [2024] K.B. 433 The distinguishing characteristic of SIAC’s review jurisdiction is its capacity to consider sensitive material closed to the public, entailing that SIAC applies judicial review principles in a context where fairness demands special procedural safeguards. U3 v Secretary of State for the Home Department [2025] UKSC 19; [2025] 2 W.L.R. 1041 SIAC’s appellate and review jurisdictions are distinct; review proceedings require the application of judicial review principles and do not share the characteristics of a true appeal. Ignaoua v Secretary of State for the Home Department [2014] EWHC 1382 (Admin) SIAC’s jurisdiction in review proceedings was treated as encompassing ancillary matters such as costs, although the court’s comments on the existence of a costs jurisdiction were not determinative and lacked binding authority. C7 v Secretary of State for the Home Department [2023] EWCA Civ 265; [2023] K.B. 317 SIAC lacks inherent power to award costs in appellate proceedings; any such power must derive solely from rules made by the Lord Chancellor under the enabling statutory provision. R (M) v Croydon London Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 2607 In judicial review claims where proceedings conclude without a determination on the merits, costs are to be determined by reference to the parties’ conduct and the underlying merits where ascertainable. R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4853 When proceedings conclude without a formal judgment, the court may still award costs guided by which party would have likely succeeded and whether a party acted unreasonably in the litigation. R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] A.C. 223 Only those judicial statements forming an essential part of the reasoning on which the decision depends—its ratio decidendi—are binding precedents; obiter dicta are not to be treated as authoritative rules. Close v Steel Co of Wales Ltd [1962] AC 367 The court distinguished between the binding reasoning of a case and incidental observations; only principles necessary to the decision form binding precedent. McCaffrey & Anr v Chief Constable of the Police Service of Northern Ireland & Ors [2025] UKIPTrib 2 Tribunal powers to award costs must be set out expressly in statute or rules; without such express authority, no jurisdiction arises to award costs against any party. R (UNISON) v Lord Chancellor [2017] UKSC 51; [2020] A.C. 869 Access to justice is a fundamental common law right that may not be curtailed by procedural or financial barriers unless justified with compelling reasons compatible with the rule of law.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

A statutory tribunal such as SIAC has no inherent jurisdiction to award costs; such powers must derive from express statutory provision or valid procedural rules made pursuant to statutory authority. [11, 28, 42]
The power to “make any such order, or give any such relief, as may be made or given in judicial review proceedings” is limited to orders or relief concerning the substantive outcome of the review and does not extend to ancillary matters such as costs unless expressly stated. [62–64]
Where a statutory rule (such as SIAC rule 11A) deems proceedings to have been withdrawn upon notice from a party, the tribunal has no remaining jurisdiction to make judicial decisions, including on costs, as the proceedings have automatically ceased. [52–53, 92–94]
Legal certainty and fair access to justice require that any regime for awarding costs—particularly one involving asymmetrical or one-way cost-shifting—be set out clearly in primary legislation or procedural rules and not implied by judicial interpretation. [74–75, 77]
The absence of a costs jurisdiction does not, per se, amount to a denial of access to justice and does not render the statutory review regime incompatible with Article 14 of the ECHR when read with Article 8 or Article 1 of Protocol 1. [81–87]

“There is nothing to suggest that this unusual state of affairs was the legislative policy in relation to costs… Questions of whether one-way costs shifting is fair are questions of policy for the legislature. They are not questions of law for judges.”

Key Findings In The Case

The Special Immigration Appeals Commission (SIAC) concluded that it had jurisdiction to award costs to an applicant whose application to set aside a refusal of naturalisation under section 2D of the Special Immigration Appeals Commission Act 1997 was successful, interpreting the phrase “any such order… as may be made or given in judicial review proceedings” as incorporating a general costs power analogous to that of the High Court [29–31].
SIAC further held that even where the Secretary of State withdrew the underlying decision before any final determination, resulting in the automatic withdrawal of the proceedings under Rule 11A of the Special Immigration Appeals Commission (Procedure) Rules 2003, it nevertheless retained jurisdiction to award costs to the applicant for those terminated proceedings [32–33].
The Secretary of State withdrew her decision on 2 August 2022, and SIAC recorded the application as withdrawn on 11 August 2022, but FGF’s solicitors subsequently applied for costs, leading SIAC to determine that it had jurisdiction to award those costs despite the absence of a final decision or express provision for costs in the governing rules or legislation [21–25].
In the absence of rules enacted under section 5 of the 1997 Act (as applied by section 6A in relation to reviews), SIAC relied on section 2D(4) to form the basis of its power to award costs, despite the lack of any express reference to costs in the Act or Procedure Rules, and despite acknowledging the asymmetry that such a costs regime would create by benefitting only applicants [28–31, 46].
The High Court found that SIAC’s conclusion that it retained a judicial function after the deemed withdrawal of proceedings under rule 11A was incorrect as a matter of law, noting that the function under rule 11A(3) is purely administrative, that SIAC’s jurisdiction ceased when the Secretary of State withdrew the decision, and that any costs order made thereafter was ultra vires [52–53, 92–94].

“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.”

The costs issue in this case arose from proceedings in the Special Immigration Appeals Commission (SIAC) concerning an application for naturalisation as a British citizen. FGF had applied for naturalisation on 27 January 2020, which the Secretary of State refused on 16 February 2022 on good character grounds. The decision was certified under section 2D(1)(b) of the Special Immigration Appeals Commission Act 1997, meaning it relied on sensitive information that could not be made public.

FGF applied to SIAC for a review of this decision on 23 February 2022. He did not qualify for legal aid due to his financial circumstances exceeding the relevant thresholds. His solicitors and counsel agreed to represent him under a heavily discounted conditional fee arrangement.

On 2 August 2022, the Secretary of State withdrew the original decision to consider further evidence. SIAC served a notice on 11 August 2022, signed by Jay J, recording that FGF’s application was treated as withdrawn pursuant to rule 11A of the Special Immigration Appeals Commission (Procedure) Rules 2003.

Despite the withdrawal, FGF applied to SIAC on 12 June 2023 for his costs of the first review proceedings. The Secretary of State resisted the application on jurisdictional grounds, arguing that SIAC had no power to award costs. SIAC heard the costs application on 15 February 2024 and, in a judgment dated 23 February 2024, concluded it had jurisdiction and ordered the Secretary of State to pay FGF’s costs, with any detailed assessment to be transferred to the High Court if not agreed.

The Secretary of State challenged SIAC’s costs order by judicial review. Two additional interested parties, H7 and H15, were joined to the proceedings as they had pending costs applications in their own SIAC proceedings that would be affected by the outcome.

Costs Issues Before the Court

The High Court was required to determine two specific costs issues. First, whether SIAC has jurisdiction to award costs in cases where an applicant has applied under section 2D of the SIAC Act to have a naturalisation decision set aside. This raised fundamental questions about the scope of SIAC’s statutory powers and whether costs jurisdiction was incorporated within its review powers.

Second, and alternatively, whether SIAC has jurisdiction to award costs where an application under section 2D is withdrawn before determination. This issue specifically concerned the effect of rule 11A(2) of the SIAC Procedure Rules, which provides that an application for review shall be treated as withdrawn if the Secretary of State withdraws the underlying decision.

The court also had to consider a preliminary matter regarding whether judicial review was the appropriate remedy, given Mr Armstrong’s contention that the Secretary of State had an adequate alternative remedy by way of appeal to the Court of Appeal under section 7(1A) of the SIAC Act.

The Parties’ Positions

The Secretary of State, represented by Ms Giovannetti KC, argued that SIAC had no costs jurisdiction in review proceedings. She submitted that SIAC’s powers are entirely statutory and that Parliament did not confer a costs jurisdiction when enacting the review provisions in sections 2C-2F. She emphasised that section 6A of the Act demonstrated Parliament’s intention to provide the Lord Chancellor with power to make costs provisions through rules under section 5, and in the absence of such rules, SIAC lacked any costs power.

Ms Giovannetti contended that sections 2D(3) and 2D(4) should be read together as dealing with substantive judicial review orders under section 31 of the Senior Courts Act 1981, not the wider powers of the High Court such as the general costs powers under section 51. She highlighted that Parliament uses express language when conferring costs powers on tribunals, citing section 29(2) of the Tribunals, Courts and Enforcement Act 2007 as an example.

Regarding the withdrawal issue, Ms Giovannetti submitted that section 2D(4) only confers power where SIAC “decides that the decision should be set aside.” Once a decision is withdrawn, there is nothing to set aside, and SIAC’s role is limited to the administrative act of recording the withdrawal under rule 11A(3).

H7 and H15, represented by Mr Armstrong KC, invited the court to uphold SIAC’s reasoning. He argued that “the principles which would be applied in judicial review proceedings” in section 2D(3) included costs principles developed in judicial review case law. He submitted that the language of section 2D(4) – “any such order” and “any such relief” – could not be broader and must include costs orders.

Mr Armstrong argued it would be absurd for Parliament to replace judicial review in the High Court with a SIAC review framework without providing for costs. He acknowledged this would create one-way costs shifting but argued this was rational and not unprecedented. He also raised arguments under article 14 of the European Convention on Human Rights, contending that the inability to recover costs would discriminate against those forced to use SIAC rather than the High Court.

On the withdrawal issue, Mr Armstrong argued that once a costs power is established, there was no good reason why it should not extend to cases where the application is treated as withdrawn, relying on SIAC’s reasoning that it retained jurisdiction for consequential matters.

The Court’s Decision

The High Court allowed the judicial review claim, finding that SIAC had no jurisdiction to award costs. Dame Victoria Sharp and Mrs Justice Farbey DBE held that SIAC’s jurisdiction is entirely statutory, with no inherent powers, and that costs powers had not been conferred by the SIAC Act.

The court adopted a purposive approach to interpreting sections 2D(3) and 2D(4), reading them together. It held that these provisions were concerned with the substantive determination of judicial review applications and the orders flowing from such determinations, not with ancillary matters such as costs. The reference to “principles which would be applied in judicial review proceedings” meant principles for determining claims substantively, not principles relating to costs awards.

The court found that the proper source for any costs power would be section 5 of the Act, which empowers the Lord Chancellor to make rules conferring “ancillary powers” on SIAC. The absence of costs provisions in the current rules meant no such power had been conferred. The court explicitly rejected SIAC’s reasoning that the rules’ silence on costs meant section 5 was not the source of any costs power, distinguishing between the source of a power and the decision whether to exercise it.

Applying the reasoning from C7 v Secretary of State for the Home Department [2023] EWCA Civ 265, the court held that if SIAC was to have any power to award costs, it could only be conferred by rules made by the Lord Chancellor. The detailed statutory code governing SIAC’s procedural powers meant there was no room for an implied costs jurisdiction.

The court rejected arguments that the absence of costs recovery would breach access to justice principles, noting that many tribunals operate without costs powers and that this does not prevent them from doing justice. It also found no merit in the article 14 discrimination arguments, holding that no difference of treatment arose between those using SIAC and others in analogous situations.

On the withdrawal issue, the court held that even if SIAC had costs powers in successful reviews, these would not extend to withdrawn applications. Rule 11A(2) provides that applications “shall be treated as withdrawn” when the Secretary of State withdraws the underlying decision. This automatic effect leaves SIAC with no discretion and no judicial decision to make. The court found SIAC had erred in law by treating the service of a notice under rule 11A(3) as a judicial decision that could carry consequential powers.

The court emphasised that from the moment of withdrawal notification, the application is deemed withdrawn and any purported costs order would have no jurisdictional foundation. It rejected SIAC’s attempt to draw parallels with High Court procedures, noting there was “no analogue to rule 11A” in judicial review proceedings and that SIAC’s codified powers could not be equated with the High Court’s broader jurisdiction.

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