High Court overturns decision on ability of Special Immigration Appeals Commission to make costs orders

The Home Secretary has succeeded in a judicial review against the Special Immigration Appeals Commission challenging a decision on their jurisdiction to award costs in certain cases. The case is R (Secretary of State for the Home Department) v Special Immigration Appeals Commission [2025] EWHC 2019 (Admin). As is usually the case where a tribunal is subject to judicial review proceedings, SIAC did not actively participate in the case.

The issues to be determined were as follows:

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an applicant has applied, pursuant to section 2D, to have a naturalisation decision set aside, but that application is withdrawn?

Section 2D of the Special Immigration Appeals Commission Act 1997 relates to SIAC’s ability to set aside a decision. SIAC had concluded that because section 2D(4) was drafted very widely, this created an anomaly whereby the costs power exists only where the Home Secretary’s decision is set aside.

The High Court was unconvinced that section 2D(4) should be read differently to the rest of section 2D and concluded that:

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.