Access to Justice: Special Immigration Commission rules that costs can be awarded against the Home Office

In an important win for access to justice, the Special Immigration Appeals Commission has ruled that it has the power to award costs against the Home Office in judicial review applications. DPG’s client, FGF, challenged the Home Secretary’s refusal of his application for citizenship. Because the Home Secretary wished to rely on sensitive material, the review took place in the Special Immigration Appeals Commission (SIAC).  In response to the litigation, the Home Office withdrew the decision. However, they refused to pay our client’s legal costs. FGF challenged the Home Secretary’s refusal, and in a ruling on Friday SIAC agreed with him that it did have the power to award costs and granted his application for costs against the Home Secretary.

This is important, because applicants to SIAC are already disadvantaged by being unable to see the “sensitive material” being used against them.  Without the power to obtain costs when applicants do succeed:

  • There was no pressure on the Home Office to litigate proportionately and to recognise when its decisions were not defensible.
  • For applicants who are ineligible for legal aid, they faced being out of pocket for challenging a decision that was later withdrawn or found to be unlawful.
  • For legal representatives with SIAC expertise like DPG, they would be unable to represent clients who are ineligible for legal aid on a ‘conditional fee’ basis without the prospect of payment in the event of success, and even work paid at legal aid rates (for those who were eligible) was placed under a great deal of financial pressure. Access to justice would be significantly impaired.

The recent case of C7 v SSHD [2023] EWCA Civ 265, which concerned SIAC appeals not reviews, was therefore distinguished. Normal judicial review principles on costs, including the principles set out in M v Croydon, apply.

The judgement can be accessed here.

FGF was represented by Daniel Carey and Catherine Dowle of DPG, instructing Nick Armstrong KC of Matrix Chambers.

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