SIAC Costs Jurisdiction in Section 2D Reviews Requires Lord Chancellor Rules, Not Section 2D(4)

Case: Secretary of State for the Home Department, R (On the Application Of) v Special Immigration Appeals Commission
Citation: [2026] EWCA Civ 992 (CA-2025-002134)
Court: Court of Appeal (Civil Division)
Date: 31 July 2026
Judges: Sir Geoffrey Vos MR, Bean LJ, Singh LJ

1. Introduction

The appeal concerned whether the Special Immigration Appeals Commission (SIAC) can award costs in “review” proceedings brought under section 2D of the Special Immigration Appeals Commission Act 1997 (as amended by the Justice and Security Act 2013), which allocates to SIAC challenges to certain naturalisation/citizenship decisions certified by the Home Secretary as relying on sensitive material (including national security).

SIAC had held (in a decision made in the review proceedings of an applicant identified as FGF) that it possessed a costs jurisdiction and awarded costs after the Home Secretary withdrew the underlying refusal decision (triggering the “treated as withdrawn” mechanism in rule 11A of the 2003 Procedure Rules). The Home Secretary sought judicial review of SIAC’s costs decision. The Divisional Court quashed SIAC’s decision and declared SIAC had no such costs power.

Two other SIAC review applicants, H7 and H15, appealed to the Court of Appeal. Although they were not directly affected by the SIAC costs order in FGF, they were affected by the Divisional Court’s declarations and by costs orders made against them in those judicial review proceedings; the Court of Appeal therefore addressed standing (per Singh LJ) and proceeded to determine the substantive points.

2. Summary of the Judgment

The Court of Appeal dismissed the appeal and upheld the Divisional Court’s declarations. Sir Geoffrey Vos MR held:

• Construction: sections 2D(3) and 2D(4) do not confer any costs power on SIAC in section 2D reviews. They are directed to the substantive JR-type test and the substantive JR-type remedies when SIAC sets aside a decision, akin to the relief in section 31 of the Senior Courts Act 1981; they do not incorporate section 51 costs jurisdiction.
• Proper locus for costs: costs are within the procedural/ancillary domain contemplated by section 5 of the 1997 Act (applied to reviews by section 6A). Absent rules made by the Lord Chancellor establishing a costs regime, SIAC cannot award costs.
• Article 14 / section 3 HRA 1998: section 3 cannot be used to “read in” a costs power where Parliament has already provided an alternative mechanism (rule-making under section 5). Further, SIAC review applicants in certified national security/public interest cases are not in an analogous position to Administrative Court JR claimants; any differential treatment would in any event be justified.
• Rule 11A: the “withdrawal” issue did not arise because SIAC had no costs jurisdiction at all under section 2D. (The Divisional Court had additionally held rule 11A ends proceedings automatically without a “set aside” decision.)

Singh LJ agreed and added observations on standing and on the practical significance of a no-costs regime, including that absence of adverse costs risk can itself promote access to justice and that institutional choices about costs frameworks are for the Lord Chancellor using the section 5 power (including consultation mechanisms).

3. Analysis

3.1 Precedents Cited (and their influence)

• C7 v. Secretary of State for the Home Department [2023] EWCA Civ 265; [2023] KB 317 (C7)
  Role in this case: A central comparator. In C7, the Court of Appeal held SIAC had no costs jurisdiction in section 2B appeals absent rules made under section 5. SIAC sought to distinguish C7 on the basis that section 2D(4) reviews use notably broad “any such order” language. The Court of Appeal rejected that move: the statutory architecture (section 5 as the procedural/ancillary gateway; section 6A extending it to reviews) means the C7 logic applies with “equal force” to reviews.
• R v. Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115 (Ex parte Simms)
  Role in this case: Invoked by H7/H15 to argue that ambiguous statutory language should not be read as curtailing a “fundamental” right to costs recovery/access to justice (principle of legality). The Court held the principle had no purchase: Parliament created a different SIAC framework (including closed material and special advocates) and expressly gave the Lord Chancellor power to create a costs regime; there was no illegitimate “silent” removal of a fundamental right.
• R (SC) v. Secretary of State for Work and Pensions [2021] UKSC 26, [2022] AC 223 (SC)
  Role in this case: Used to structure the article 14 analysis (status/other status, analogous situations, justification, margin of appreciation). The Court of Appeal accepted that debating “status” or the “ambit” of A1P1 was not the profitable route here; instead, it focused on the absence of a viable section 3 reading-down solution, lack of proper comparability, and justification.
• McCaffrey v. Chief Constable of the Police Service of Northern Ireland [2025] UKIP Trib 2 at [74]-[76]; [2026] 1 All ER 1181
  Role in this case: Endorsed (below) for the proposition that it is undesirable, as a matter of legal certainty, for a specialist body to have a broad, unfettered costs discretion without a rules framework; and (per Singh LJ) for institutional competence: courts/tribunals are not well-placed to design a costs regime without consultation and policy balancing.
• R (Ignaoua) v. SSHD [2014] EWHC 1382 (Admin)
  Role in this case: The Master of the Rolls expressly declined to follow the approach in Ignaoua insofar as it supported a broader reading of SIAC powers; he preferred the Divisional Court’s analysis in the present case and treated the “if set aside” condition in section 2D(4) as coherent rather than anomalous.

3.2 Legal Reasoning

A. Statutory structure and legislative history: “jurisdiction” vs “procedure”

The Court’s core interpretive move is structural:

• Section 2D is about SIAC’s jurisdiction in a defined class of certified decisions and the standard of review (JR principles) and substantive relief when setting aside.
• Section 5 (extended to reviews by section 6A) is the statutory home for practice and procedure and “incidental” and “ancillary” matters—within which the Court located costs.

Against that scheme, section 2D(4)’s language (“any such order, or give any such relief, as may be made or given in judicial review proceedings”) was read contextually as referring to the kinds of public law remedies available in JR (notably as reflected in section 31 of the Senior Courts Act 1981), rather than importing the High Court’s general costs jurisdiction in section 51 of the Senior Courts Act 1981.

B. The “If SIAC sets aside” condition is not surplusage

SIAC had treated the opening words of section 2D(4)—“If the Commission decides that the decision should be set aside”—as anomalous and, in effect, not limiting. The Court of Appeal rejected that: those words align with the design of section 2D as a set-aside jurisdiction, and with the idea that consequential substantive orders and relief follow only once set-aside is determined.

C. No “incorporation by reference” of section 51 costs

SIAC’s reasoning depended on “incorporation by reference”: if section 31 JR remedies are brought in, why not section 51 costs? The Court of Appeal’s answer was that section 2D(4) is not a general conduit for every incident of High Court process; it is confined to the relief that can be “made or given” in JR proceedings in the sense relevant to disposing of the review substantively. Costs—being procedural/ancillary and rule-governed—sit elsewhere.

D. Article 14 / section 3 HRA 1998: why “reading down” fails here

The Court’s article 14 reasoning has three interlocking strands:

1. No coherent section 3 solution identified: section 3 HRA 1998 requires an interpretive choice that is “possible”. But H7/H15 did not explain what words could be read into section 2D(4) to generate a costs regime, especially where Parliament already supplied a distinct mechanism: the Lord Chancellor’s power to make rules under section 5. On the Court’s analysis, the barrier is not statutory incompatibility but executive choice.
2. Lack of relevant comparability: certified national security/public interest cases in SIAC operate under a materially different procedural ecology (closed material procedure; special advocates; different permission/filtering; specialist forum). The Court held it not reasonably arguable that these applicants are in an analogous position to Administrative Court JR claimants.
3. Justification in any event: the same differences provide objective justification for different costs regimes. The Court noted plausible applicant-facing advantages to a no-costs regime (no adverse costs risk), even if it may reduce incentives for some funding models.

E. Standing (Singh LJ’s observations)

While the Divisional Court had doubted whether H7/H15 were “directly affected” so as to be “interested parties” (CPR 54.1(2)(f)), Singh LJ considered that issue overtaken: the Divisional Court made orders (including costs) against H7/H15, so they were “adversely affected” and had standing to appeal. He also noted it might have been procedurally neater to treat them as interveners rather than interested parties.

3.3 Impact

• Immediate doctrinal effect: SIAC cannot award costs in section 2D review proceedings absent a costs regime created by Lord Chancellor-made rules under section 5. The same construction is likely to apply to sections 2C, 2E and 2F, which use similar language.
• Practical litigation consequences: successful SIAC review applicants cannot assume costs recovery, even if the Home Secretary withdraws a decision midstream. Conversely, applicants benefit from insulation against adverse costs orders—an access-to-justice factor emphasised by Singh LJ.
• Institutional allocation: the judgment places responsibility for any costs framework squarely with the Lord Chancellor (including choices among “no costs”, “limited costs”, or “costs follow the event” models). The Court’s reliance on legal certainty and institutional competence suggests future attempts to imply costs powers into specialist regimes will face a high bar where Parliament has provided rule-making machinery.

4. Complex Concepts Simplified

• “Judicial review principles” (section 2D(3)): SIAC does not re-decide the merits as if it were the original decision-maker; it applies public law standards (lawfulness, rationality, procedural fairness), adapted to the statutory scheme.
• “Relief” vs “procedure” (section 2D(4) vs section 5): “Relief” concerns the outcome remedies (e.g., quashing the decision, declarations, remittal/substitution where permitted). “Procedure” concerns how the case runs and ancillary consequences (like costs). The Court treated costs as belonging to the latter category.
• Closed material procedure and special advocates: in certified cases, some evidence is not shown to the applicant for national security/public interest reasons; a special advocate can test closed material on the applicant’s behalf under strict communication rules. This changes both litigation risk and what a fair costs regime might look like.
• Article 14 ECHR: it prohibits unjustified discrimination in the enjoyment of Convention rights. A claimant must show (i) relevantly similar comparators, (ii) a difference in treatment, and (iii) lack of objective justification.
• Section 3 HRA 1998 (“reading down”): courts must interpret legislation compatibly with Convention rights “so far as it is possible”. It is not a licence to create a detailed regulatory scheme—especially where Parliament has provided a different mechanism (here, section 5 rule-making) to address the issue.

5. Conclusion

[2026] EWCA Civ 992 establishes a clear boundary in SIAC review proceedings: sections 2D(3)–(4) borrow the JR standard and JR remedies for determining whether to set aside certified decisions, but they do not import the High Court’s general costs jurisdiction. Costs in SIAC are a matter for an express rules framework under section 5 (as extended by section 6A), and article 14 does not require the courts to “read in” such a regime via section 3 HRA 1998.