C7 v Secrtary of State for the Home Department

A specialist statutory tribunal does not acquire an inherent power to award costs merely because it is designated a superior court of record. Its powers depend on the statutory scheme. Where that scheme gives the rule-maker comprehensive control of procedure and permits rules to confer a costs jurisdiction, no inherent or implied costs power arises if no such rule has been made.

In any event, a tribunal exercising an unregulated costs power may lawfully adopt the analogous rule that costs are awarded only for unreasonable conduct. An appellate court will be slow to interfere with its assessment of whether conduct in proceedings was unreasonable.

The appellant successfully appealed to the Special Immigration Appeals Commission against a decision depriving him of British citizenship. SIAC decided as a preliminary issue that the deprivation would render him stateless. The appellant then sought his costs of that appeal.

Chamberlain J, sitting alone in SIAC, held that SIAC had no power to award costs on an appeal under section 2B of the Special Immigration Appeals Commission Act 1997. Alternatively, he held that any such power would be exercisable only where a party had acted unreasonably, and that the Secretary of State had not done so.

The appellant appealed on both issues. He also sought, without permission, to rely on an argument under article 14 of the European Convention on Human Rights.

1. Appeal dismissed. SIAC has no inherent power to award costs in an appeal under section 2B of the Special Immigration Appeals Commission Act 1997. Historically, apart from the possible position in equity, the power to award costs was statutory. The designation of SIAC as a superior court of record did not itself give SIAC that power. SIAC remains a body of limited statutory jurisdiction.

2. Section 5 of the 1997 Act occupied the field of SIAC procedure. Following the insertion of section 5(2A), any costs power for a section 2B appeal could only derive from rules made by the Lord Chancellor. The provision permitted SIAC rules to do what Tribunal Procedure Rules could do, including rules about costs. The absence of such a rule therefore meant that SIAC had no costs jurisdiction. The special inherent jurisdiction of the House of Lords discussed in The Guardians of West Ham Union could not be generalised, and Osman concerned only a historical Divisional Court practice.

3. Nor was a costs power implied. Such a power was not necessary to enable SIAC to do justice. More fundamentally, a detailed statutory code allocated SIAC’s procedural rule-making to the Lord Chancellor; an implied power could not operate outside that code.

4. Alternatively, if SIAC had a costs power, the judge was entitled to adopt the approach applied in the First-tier Tribunal and award costs only for unreasonable conduct. He was also entitled to find that the Secretary of State had argued the statelessness issue properly and proportionately. The fact that her expert evidence was ultimately rejected did not make her conduct unreasonable.

5. The Court refused permission to raise the article 14 point. It was not identified in the grounds of appeal, had not been argued before SIAC, and might require evidence and SIAC’s views on any justification for different costs regimes. It could in any event make no difference because the Secretary of State had not acted unreasonably.

• Court of Appeal (Civil Division): dismissed the appeal against SIAC’s refusal of a costs order: [2023] EWCA Civ 265.

• Special Immigration Appeals Commission: Chamberlain J held that SIAC had no jurisdiction to award costs on the successful section 2B appeal and, alternatively, that the Secretary of State had not acted unreasonably: SC/171/2020.

• Special Immigration Appeals Commission: allowed the underlying citizenship-deprivation appeal after determining that deprivation would render the appellant stateless.