AC-2024-LON-000883 - [2025] EWHC 2019 (Admin)

By virtue of section 1 of the SIAC Act as amended, SIAC is a superior court of record which exercises the jurisdiction conferred by the Act. (SIAC also exercises jurisdiction conferred by Schedule 4A to the British Nationality Act 1981. This latter jurisdiction is not relevant to the present claim. We say no more about it.)

It is common ground that SIAC has no inherent jurisdiction. Its powers are bestowed by the SIAC Act. When the Act came into force, it created an appellate jurisdiction which is now to be found in sections 2 and 2B. Following amendments to the Act, SIAC now also has a review jurisdiction which is to be found in sections 2C-2F.

FGF brought an application for review under section 2D of the Act which provides as follows (as amended):

“2DJurisdiction: review of certain naturalisation and citizenship decisions

(1)

Subsection (2) applies in relation to any decision of the Secretary of State which—

(a)

is either—

(i)

a refusal to issue a certificate of naturalisation under section 6 or 18 of the British Nationality Act 1981 to an applicant under that section, or

(ii)

a refusal to grant an application of the kind mentioned in section 41A of that Act (applications to register an adult or young person as a British citizen etc.), and

(b)

is certified by the Secretary of State as a decision that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public—

(i)

in the interests of national security,

(ii)

in the interests of the relationship between the United Kingdom and another country, or

(iii)

otherwise in the public interest.

(2)

The applicant to whom the decision relates may apply to the Special Immigration Appeals Commission to set aside the decision.

(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.”

It may therefore readily be seen that the distinguishing feature of SIAC’s jurisdiction under 2D – as in other aspects of its appellate and review jurisdictions – is the consideration of sensitive information that cannot be made public on grounds of national security, international relations or some other public interest. SIAC’s specialised constitution and unique procedures enable it to perform this function effectively (U3 v Secretary of State for the Home Department [2023] EWCA Civ 811, [2024] K.B. 433, paras 172 and 175 per Elisabeth Laing LJ).

H7 and H15 applied to SIAC under section 2F of the Act which establishes a right to a SIAC review of a decision made by the Secretary of State in relation to a person’s entitlement to enter or remain in the United Kingdom or in relation to a person’s removal. The right is conferred in cases certified by the Secretary of State as reliant on sensitive information and is expressed in materially the same terms as section 2D. In particular, section 2F(3) provides that, in determining whether the decision should be set aside, SIAC “must apply the principles which would be applied in judicial review proceedings.” Section 2F(4) confers a discretion on SIAC “to make any such order, or give any such relief, as may be made or given in judicial review proceedings” if it decides to set aside the decision under challenge.

Sections 2C and 2E of the SIAC Act established rights of review in SIAC in relation to (respectively) decisions to exclude a person from the United Kingdom and deportation decisions. These sections mirror section 2D. SIAC will apply judicial review principles (sections 2C(3) and 2E(3)). In deciding to set aside any decision, SIAC may make any such order or give any such relief as may be made or given in judicial review proceedings (sections 2C(4) and 2E(4)).

The distinction between SIAC’s appellate and review jurisdictions was described in U3 v Secretary of State for the Home Department [2025] UKSC 19, [2025] 2 W.L.R. 1041, para 43 per Lord Reed PSC:

“… it is important to understand at the outset that an appeal to SIAC, whether under section 2 or section 2B of the 1997 Act , is an appeal in reality as well as in form, and is not equivalent to an application for judicial review. Equally, in determining the issues raised by an appeal under those provisions, SIAC is not necessarily confined to the application of administrative law principles. Those points are apparent from the contrast between sections 2 and 2B, on the one hand, and sections 2C, 2D, 2E and 2F, on the other hand. The latter provisions provide for the ‘review’ of the decisions to which they apply, and expressly require SIAC, in determining whether the decision in question should be set aside, to apply the principles which would be applied in judicial review proceedings. No such provisions appear in sections 2 or 2B.”