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

SIAC attributed to Parliament an intention to confer a costs jurisdiction that would arise only where the Secretary of State’s decision is set aside. As SIAC acknowledged, the power to award costs would effectively operate only one way: in favour of a successful applicant but not in favour of the Secretary of State if the application for review failed. There is nothing to suggest that this unusual state of affairs was the legislative policy in relation to costs.

In its judgment, SIAC held at paragraph 46 that “the probable reason for this state of affairs is that Parliament thought that in a procedure which is so heavily dependent on CLOSED material it would be unfair to subject an applicant to a further possible penalty.” There is no Parliamentary material (such as extracts from Hansard) to suggest that Parliament intended a one-way costs regime as a matter of fairness to applicants. We were directed to no other material and to no authority that could support such a proposition.

Questions of whether one-way costs shifting is fair are questions of policy for the legislature. They are not questions of law for judges. We have been provided with no reason to suppose that Parliament concluded that it would be unfair to expose an applicant, but fair to expose the Secretary of State, to liability for costs. SIAC’s rationale for accepting a one-way costs jurisdiction rested on supposition and does not withstand scrutiny.