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

By virtue of rule 11A(3), if the Secretary of State withdraws the decision under challenge, SIAC has no discretion to do anything other than serve a notice on the parties and any special advocate that the review application has been recorded as having been withdrawn. SIAC has no power to decide whether the application has been withdrawn because the application is deemed withdrawn by force of rule 11A. Serving the notice is not a judicial decision and does not flow from a judicial decision. It flows from the Secretary of State’s administrative action which has the legal effect for which rule 11A provides.

By concluding in paragraph 52 of its judgment (quoted above) that SIAC has to do something that brings the proceedings to an end, SIAC made an error of law. In making rule 11A, the Lord Chancellor has decided that proceedings falling within the rule are to be brought to an end automatically and without SIAC taking any decision. In its judgment, SIAC elided a judicial determination that a decision should be set aside under section 2D(4) with a record of withdrawal under rule 11A that does not yield any judicial determination. That elision is impermissible and amounts to a misdirection of law.

In its judgment, SIAC sought to incorporate the powers of the High Court when an application for judicial review is withdrawn. The High Court may make a variety of consequential and ancillary orders including costs. We see no basis to equate the broad powers of the High Court with the codified powers of SIAC. We agree with the observation in H5 (at para 22) that there is “no analogue to rule 11A” in High Court procedures. SIAC’s view that it has the same powers as the High Court “from cradle to grave” in any one case risks undermining the legislative confines – including rule 11A – under which SIAC operates. The withdrawal of the decision under challenge in SIAC “leads inexorably to the withdrawal of the substantive claim” (H5, para 22). It is thereafter not possible for SIAC to “breathe life into [the] proceedings” (H5, para 17).

Rule 11A(3) makes plain that SIAC’s notice is a record of a pre-existing state of affairs, namely that the application for a review has been withdrawn. Contrary to the view taken by SIAC, the timing of the notice is irrelevant. From the time that the Secretary of State notifies SIAC that the decision has been withdrawn, the application for a review must be deemed withdrawn and treated as no longer extant. Any decision by SIAC would relate to proceedings that have already ended. Any order for costs would have no jurisdictional purchase. SIAC’s decision to award costs to FGF after the Secretary of State withdrew the decision under challenge was made with no jurisdiction.

For reasons we have already set out, there is no reason to reach any different conclusion by reference to Convention rights. We would therefore allow the claim on this additional basis.