C7 v Secrtary of State for the Home Department

The Court of Appeal dismissed the appellant’s challenge to SIAC’s decision (decision 2) refusing an order for costs following a successful appeal under section 2B of the Special Immigration Appeals Commission Act 1997. The court held that SIAC does not possess an inherent power to award costs in a section 2B appeal and does not have an implied power to do so within the statutory scheme. The court explained that the statutory framework (in particular section 5 of the 1997 Act as amended and the role of Tribunal Procedure Rules) indicates that any power to award costs for SIAC appeals must derive from rules made by the rule‑making authority, not from an inherent jurisdiction of SIAC. The court further held that, even if SIAC did have a power to award costs, the judge was entitled to apply a threshold requiring unreasonable conduct before ordering costs and was entitled to find that the Secretary of State had not acted unreasonably.

This appeal concerns whether the Special Immigration Appeals Commission (SIAC) may order a respondent to pay costs in an appeal under section 2B of the Special Immigration Appeals Commission Act 1997. The appellant (A) had been deprived of British citizenship by the Secretary of State (decision 1), who certified that national security considerations required parts of the material to remain closed, and A appealed to SIAC under section 2B on multiple grounds including statelessness and proportionality. SIAC tried a preliminary issue on whether the deprivation order made A stateless and (after hearing experts) allowed A’s appeal on that issue. A then applied to SIAC for an order that the Secretary of State pay his costs of that SIAC appeal; Chamberlain J (decision 2) refused, concluding SIAC had no power to award costs and, alternatively, that costs would only be awarded for unreasonable conduct, which the Secretary of State had not shown.

Procedural posture: appeal from Chamberlain J’s decision in SIAC (SC/171/2020), with the SIAC preliminary judgment on statelessness handed down 18 March 2021. This Court granted permission to appeal and heard full argument.

Issues framed:

• Whether SIAC has an inherent jurisdiction to award costs on a section 2B appeal.
• Whether SIAC has an implied power to award costs within the statutory scheme governing its procedure (notably section 5 of the 1997 Act as amended and the power to make rules).
• If SIAC has any power, on what principles it should be exercised (for example whether only for unreasonable conduct).
• Whether the Secretary of State’s conduct of the SIAC appeal was unreasonable so as to attract an award of costs.

Reasoning and outcome: the court analysed the legislative history and relevant statutory provisions, including section 51 Senior Courts Act 1981 (history of costs jurisdiction), provisions of the British Nationality Act 1981 governing deprivation and appeal routes, section 5 of the 1997 Act (rule‑making power of the Lord Chancellor) and the 2007 Act provisions relating to Tribunal Procedure Rules and costs in the First‑tier and Upper Tribunals. The court concluded (i) SIAC did not have an inherent power to award costs merely by virtue of its designation as a superior court of record, (ii) an implied power to award costs would be inconsistent with the detailed statutory code and the rule‑making role of the Lord Chancellor and thus cannot be inferred, (iii) if a power existed it was open to the judge to require unreasonable conduct as the threshold for awarding costs, and (iv) the judge did not err in finding the Secretary of State had not acted unreasonably. The Court therefore dismissed the appeal. The court also refused leave to argue a new article 14 ECHR point on the papers, explaining why that argument had not been adequately pleaded below and why SIAC itself should be given an opportunity to comment on any such discrimination argument before this court considered it.

Appeal dismissed. The Court held that SIAC has no inherent or implied power to award costs in an appeal under section 2B of the 1997 Act; any power to award costs must derive from rules made under the statutory rule‑making powers (section 5 and related provisions). Even if such a power existed, the judge was entitled to require unreasonable conduct before ordering costs and to find the Secretary of State had not acted unreasonably.

Appeal from a decision of the Special Immigration Appeals Commission (Chamberlain J; SC/171/2020). SIAC heard a preliminary issue on statelessness (judgment 18 March 2021) and allowed the appellant’s appeal on that preliminary issue. The appellant applied to SIAC for an order for costs; Chamberlain J refused (decision 2). The appellant appealed to the Court of Appeal, which delivered judgment in C7 v Secrtary of State for the Home Department [2023] EWCA Civ 265 (this decision).