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

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

As may be seen from the language, article 14 concerns discrimination in the enjoyment of Convention rights and so it can only be considered in conjunction with one or more of the substantive rights in the Convention or its protocols. As we have mentioned, Mr Armstrong submitted that the relevant rights are those set out in article 8 of the Convention (right to respect for private and family life) and A1P1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

For present purposes, it is not necessary to look further than the analysis of Lord Reed in SC and his summary of the principal elements of article 14, as follows:

“37.

The general approach adopted to article 14 by the European court has been stated in similar terms on many occasions, and was summarised by the Grand Chamber in the case of Carson v United Kingdom (2010) 51 EHRR 13, para 61... For the sake of clarity, it is worth breaking down that paragraph into four propositions:

(1)

‘The court has established in its case law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of article 14.’

(2)

‘Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.’

(3)

‘Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’

(4)

‘The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.’”

In addition, the alleged discrimination must relate to a matter which falls within the “ambit” of one of the substantive articles (SC, para 39).

SIAC did not rely on article 14 and did not deal with Convention rights. We have struggled to understand how it is said that the inability to recover costs falls within the ambit of either article 8 or A1P1. For present purposes, we are prepared to set aside this difficulty. The more fundamental question is how it is said that an inability to recover costs in SIAC is capable of giving rise to “a difference in the treatment of persons in analogous, or relevantly similar, situations” (SC, para 37(3)).

In advancing this part of his submissions, Mr Armstrong emphasised that a person unlawfully refused naturalisation before section 2D came into force would have been entitled to costs in judicial review proceedings in the High Court whereas a person now unlawfully refused naturalisation would (if Ms Giovannetti’s submissions were to prevail) not be entitled to costs in SIAC.

Mr Armstrong described the problems said to be faced by litigants and lawyers if costs in SIAC are irrecoverable. However, applicants and those who represent them in SIAC receive no different treatment to those who appear in other jurisdictions in which the power to award costs is for one reason or another not in place and who do not qualify for legal aid. Article 14 concerns unjustified difference in treatment in the sphere of Convention rights between analogous persons. In the absence of any difference of treatment at all, we are not persuaded that article 14 is engaged at all.

Mr Armstrong submitted that a person who has been awarded costs in earlier proceedings has an expectation that he or she will be awarded costs in later proceedings covering the same sort of ground. This submission was supported neither by authority nor by any persuasive resort to principle. When section 2D was introduced, FGF could expect to be treated in accordance with its provisions as interpreted by the courts – no more and no less. He could have no expectation that he would be treated in accordance with some other form of legal proceedings in which he was not taking part. Any other person would be in the same position as FGF: no question of difference of treatment arises, whether in relation to a Convention right or at all.

Mr Armstrong seemed to argue in this part of his submissions that questions of access to justice arise if a person cannot recover his or her costs in litigation. However, he did not argue that article 6 of the Convention – within which questions of access to justice fall to be considered – was engaged. He disavowed the proposition, put to him in questions by the court, that he was deploying article 14 to introduce the subject of access to justice by a side wind.

In short, we were presented with no coherent framework for reading section 2D(4) differently in order to preserve its compatibility with article 14. No question of incompatibility with article 14 arises. For these reasons, we reject Mr Armstrong’s article 14 arguments.

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.

Given our conclusion on Issue 1, it is not strictly necessary for us to consider Issue 2. We shall therefore set out our conclusion on this Issue in brief terms.