In FGF v Secretary of State for the Home Department, Appeal No: SN/01/2022 the Special Immigration Appeals Commission has concluded that it has the power to award costs in reviews, in certain circumstances.

Background

FGF applied for naturalisation as a British citizen on 27 January 2020. The Home Secretary refused the application on 16 February 2022, on the grounds that FGF did not meet the good character requirement. The Home Secretary also stated that it would be contrary to the public interest to provide reasons and the decision was certified under section 2D of the Special Immigration Appeals Commission Act 1997. This means that any challenge is by an application for review that must take place in the commission.

FGF applied to the commission for a review on 22 February 2022. On 2 August 2022 the Home Secretary notified FGF that the decision would be withdrawn and remade. Between 2 and 11 August 2022 there was correspondence between the parties relating to costs, which FGF argued should be paid by the Home Secretary. FGF was not financially eligible for legal aid.

The commission then served a notice on 11 August 2022 recording that the application for review was to be treated as withdrawn under the procedure rules. On 2 August 2023 the Home Secretary refused the application a second time and FGF again challenged this decision. The second challenge is ongoing.

The commission’s decision

This decision addresses the matter of costs in relation to the first application for review. The main issue to be determined was whether the commission has jurisdiction to award costs at all.

The commission said that the proper starting point was C7 v Secretary of State for the Home Department [2023] EWCA Civ 265. That case dealt with an appeal to the commission under section 2B, rather than a review under section 2D. Sections 2C to 2F all deal with reviews, and were added to the Act at a later date. Section 5 of the Act provides for the Lord Chancellor to make rules regulating appeals under section 2 or 2B and is silent on section 2D.

Section 2D of the Act states the following:

(3) In determining whether the decision should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings.

(4) If the Commission decides that the decision should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings

The appellant argued that the notice served by the commission following the withdrawal of the decision amounts to a judicial decision and that the same approach to remedy must be taken as in a judicial review. The Home Secretary argued that the commission had no jurisdiction to award costs in any circumstances and the absence of express wording in the legislation is evidence that Parliament did not intend to crease such a power.

The commission agreed with the appellant and concluded that the language of section 2D(4) is “extremely wide” and that it does have the power to award costs in reviews.

The commission pointed out that the wording of section 2D(4) creates an anomaly as the costs power exists only where the Home Secretary’s decision is set aside. It was said that the Lord Chancellor could address this through a rule change if he wishes to change the position.

Conclusion

This is a fairly technical but common sense decision. The ability to recover costs is an important one, particularly since financial eligibility thresholds for legal aid have not moved in years.