Secretary of State for the Home Department, R (On the Application Of) v Special Immigration Appeals Commission

Factual and Procedural Background

The appeal concerned whether the Special Immigration Appeals Commission (SIAC) had power to award costs in review proceedings arising from a certified refusal of a naturalisation application. [Para 39][Para 42] The First Interested Party applied for naturalisation, was refused by the Home Secretary, and the refusal was certified so that any challenge could proceed only by review in SIAC. [Para 64] The Home Secretary later withdrew the refusal, SIAC treated the review as withdrawn under rule 11A, the refusal was remade, and SIAC later granted the review and quashed the decision. [Para 65] The First Interested Party then sought costs of the first review proceedings, SIAC held that it had jurisdiction to award costs and ordered costs, and the Home Secretary challenged that ruling by judicial review. [Para 66][Para 67] The Divisional Court quashed SIAC’s costs decision and declared that SIAC had no power to award costs in review cases, and the Appellants appealed. [Para 43][Para 44][Para 45][Para 46]

Legal Issues Presented

1. Whether sections 2D(3) and 2D(4) of the Special Immigration Appeals Commission Act 1997 confer a power on SIAC to award costs in review proceedings, or whether any such power depends on rules made by the Lord Chancellor under section 5 as applied by section 6A. [Para 39][Para 40][Para 55][Para 60]
2. Whether section 3 of the Human Rights Act 1998 requires section 2D to be read so as to create a costs regime in order to avoid incompatibility with article 14 of the European Convention on Human Rights. [Para 51][Para 52][Para 56][Para 60]
3. Whether rule 11A affects any costs jurisdiction where the Home Secretary withdraws the challenged decision and the review is treated as withdrawn. [Para 53][Para 65][Para 70]

Arguments of the Parties

Appellants' Arguments

• Sections 2D(3) and/or 2D(4) should be read as giving SIAC the same costs powers as the Administrative Court in judicial review proceedings, because Parliament moved these cases into SIAC without intending to alter the costs regime. [Para 48][Para 49]
• The principle of legality supported that construction because important rights should not be taken away by general or ambiguous words. [Para 49]
• In the alternative, section 3 of the Human Rights Act 1998 required section 2D to be read compatibly with article 14 so that applicants forced into SIAC would not be denied a costs regime available in the Administrative Court. [Para 51][Para 52]
• Rule 11A should not be read as causing any costs jurisdiction to disappear when the Home Secretary withdraws her decision. [Para 53]

Respondent's Arguments

• Any costs regime in SIAC came from section 5, as applied by section 6A, and the Lord Chancellor had never made rules creating such a regime. [Para 55][Para 85][Para 101]
• Sections 2D(3) and 2D(4) concern the substantive review function and the relief available if a decision is set aside, not procedural or ancillary costs matters. [Para 55][Para 60]
• Article 14 was not engaged, or in any event the different treatment between SIAC review applicants and Administrative Court litigants was justified. [Para 56][Para 59]

Table of Precedents Cited

Court's Reasoning and Analysis

The court held that the statutory scheme distinguishes between jurisdiction and procedure: section 2D confers the review jurisdiction, while section 5, as extended by section 6A, is the mechanism for procedural rules and any costs regime. [Para 157][Para 158][Para 159] Section 2D(3) was read as directing SIAC to apply judicial review principles when deciding whether to set aside the decision, and section 2D(4) was read as referring to the remedial powers available in judicial review, not to the broader costs discretion found in section 51 of the Senior Courts Act 1981. [Para 162][Para 163][Para 164][Para 165] The court therefore rejected SIAC’s view that the broad wording of section 2D(4) itself incorporated a costs power. [Para 156][Para 164]

The court also rejected the argument that the principle of legality required a costs power to be implied or read in, because Parliament had not abolished a pre-existing costs regime but had instead left costs to be introduced by rule-making if the Lord Chancellor chose to do so. [Para 169][Para 170][Para 171] On the article 14 argument, the court assumed only for argument’s sake that costs might fall within the Convention’s ambit, but held that the two categories of applicant were not in an analogous or relevantly similar position and that any difference in treatment was justified by the distinct national-security, closed-material, and special-advocate context of SIAC proceedings. [Para 180][Para 182][Para 183][Para 184] Because there was no costs jurisdiction under section 2D in the first place, the rule 11A point did not arise. [Para 186][Para 187]

Holding and Implications

APPEAL DISMISSED. The court upheld the Divisional Court’s declarations that SIAC has no power to award costs in review proceedings under section 2D, and that the same position applies to the related review provisions. [Para 188][Para 189] The direct consequence is that any SIAC costs regime must come from rules made by the Lord Chancellor under section 5, not from section 2D itself, and no article 14 incompatibility was established. [Para 188][Para 189]