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

In R (Ignaoua & Ors) v Secretary of State for the Home Department [2014] EWHC 1382 (Admin), the Divisional Court stayed the claimants’ applications for judicial review on the grounds that the claimants had the right to apply for a SIAC review under the SIAC Act. In reaching this conclusion, the court (Ouseley J with whom Irwin J agreed) took into consideration a number of different factors including the “legislative steer” that was provided by the establishment of SIAC’s review jurisdiction; the suitability of SIAC review proceedings as an alternative remedy to judicial review; and the advantages of SIAC’s experience and expertise in cases involving sensitive material.

As a final factor, Ouseley J observed at paragraph 38 of the judgment that it would be difficult to see any disadvantages to an individual bringing a challenge in SIAC rather than in the High Court. He noted that there would be an advantage for a person losing in SIAC as the SIAC Act provided for a successful applicant to recover his or her costs but did not provide for an unsuccessful applicant to pay costs to the Secretary of State.

Mr Armstrong submitted that we should follow Ignaoua, and accept that SIAC has a costs jurisdiction that may be exercised in favour of successful applicants for review, unless we are convinced that Ignaoua is wrong. There is, however, nothing in the judgment to indicate whether the court in Ignaoua heard argument on that point and we do not have the benefit of any reasoning from the court on the point.

We agree with Ms Giovannetti that the observations in Ignaoua on the costs advantages for an applicant in SIAC are not part of the “principles accepted and applied as necessary grounds of the decision” (Sir Frederick Pollock cited by Lord Denning in Close v Steel Co of Wales Ltd [1962] A.C. 367, 388-389; approved by Lord Reed PSC in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] A.C. 223, para 96). We do not accept that Ouseley J’s observations on costs are authority for a proposition of law that forms part of the ratio decidendi. We do not regard Ignaoua as binding.