Background
FGF applied for British citizenship but was refused naturalisation on good-character grounds. Because the Home Secretary certified that the decision relied wholly or partly on information that should not be made public, FGF could challenge it only through a review by the Special Immigration Appeals Commission under section 2D of the Special Immigration Appeals Commission Act 1997.
The Home Secretary withdrew the refusal while considering further evidence, causing the first review application to be treated as withdrawn under rule 11A of the Commission’s Procedure Rules. SIAC nevertheless held that it could award FGF the costs of those proceedings. The Home Secretary successfully sought judicial review of that ruling, and the Divisional Court declared that SIAC lacked power to award costs in statutory review cases, including cases withdrawn under rule 11A. H7 and H15, whose own SIAC costs applications had been stayed, appealed.
The Court’s Holding
The Court of Appeal unanimously dismissed the appeal. It held that sections 2D(3) and 2D(4) govern the substantive principles and remedies applicable when SIAC reviews and sets aside a naturalisation or citizenship decision. Their references to judicial-review principles, orders, and relief do not import the High Court’s separate power to award costs.
A costs regime for SIAC reviews may instead be created by the Lord Chancellor through procedural rules under sections 5 and 6A of the 1997 Act. Because no such rules have been made, SIAC currently has no power to award costs in review proceedings. The Court also rejected the Article 14 challenge: SIAC applicants were not in an analogous or relevantly similar position to ordinary Administrative Court claimants, any different treatment was justified by the distinctive national-security regime, and section 3 of the Human Rights Act could not assist where the statute already empowered the Lord Chancellor to establish a costs regime. The separate rule 11A issue therefore did not arise.
Key Takeaways
- SIAC cannot award costs in reviews under sections 2C–2F of the 1997 Act unless the Lord Chancellor creates a costs regime by procedural rules.
- The power to grant orders and relief available in judicial review concerns substantive remedies, such as quashing, remittal, or substitution, rather than the High Court’s general costs jurisdiction.
- The absence of a SIAC costs regime did not establish unlawful discrimination under Article 14, given the material differences between SIAC national-security reviews and Administrative Court proceedings.
Why It Matters
The judgment confirms that parties to SIAC review proceedings ordinarily cannot recover their legal costs, even after success or withdrawal of the challenged decision, but also face no adverse costs order under the present regime. Any change must come through rules made by the Lord Chancellor rather than judicial interpretation.