C7 v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLady Justice Elisabeth Laing,Lord Justice Dingemans,Lord Justice Underhill
Judgment Date13 March 2023
Neutral Citation[2023] EWCA Civ 265
Docket NumberCase No: CA-2021-001833+A
CourtCourt of Appeal (Civil Division)
Between:
C7
Appellant
and
Secretary of State for the Home Department
Respondent

[2023] EWCA Civ 265

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal (Civil Division))

Lord Justice Dingemans

and

Lady Justice Elisabeth Laing

Case No: CA-2021-001833+A

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SPECIAL

IMMIGRATION APPEALS COMMISSION

Mr Justice Chamberlain

SC/171/2020

Royal Courts of Justice

Strand, London, WC2A 2LL

Hugh Southey KC and Alasdair Mackenzie (instructed by Duncan Lewis) for the Appellant

Lisa Giovannetti KC, Andrew Deakin and Jennifer Thelen (instructed by Government Legal Department) for the Respondent

Hearing date: 14 February 2023

Approved Judgment

This judgment was handed down remotely at 10.00 am on 13 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lady Justice Elisabeth Laing

Introduction

1

The Appellant (‘A’) appeals against a decision of the Special Immigration Appeals Commission (‘SIAC’) (‘decision 2’). Decision 2 was made by Chamberlain J, sitting alone (‘the Judge’).

2

A had applied for an order that the Secretary of State pay the costs of his successful appeal to SIAC under section 2B of the Special Immigration Appeals Commission Act 1997 (‘the SIAC appeal’). In the written reasons for decision 2, which I summarise in paragraphs 11–17, below, the Judge decided that SIAC did not have power to make such an order, but that, if it had such a power, it would only exercise it in a case in which a party had acted unreasonably. The Judge did not consider that the Secretary of State's conduct of the SIAC appeal had been unreasonable.

3

On this appeal, A has been represented by Mr Southey KC and Mr Mackenzie, and the Secretary of State by Ms Giovannetti KC, Mr Deakin and Ms Thelen. I thank counsel for their written and oral submissions.

4

Paragraph references are to the Judge's written reasons, or, if I am referring to an authority, to that authority, as the case may be.

5

This judgment does not concern SIAC's powers in statutory reviews pursuant to sections 2C-2F of the Special Immigration Appeals Commission Act 1997 (‘the 1997 Act’) inclusive. For the reasons given in this judgment I have reached four conclusions.

i. SIAC does not have an inherent power to award costs on an appeal under section 2B.

ii. SIAC does not have an implied power to award costs on such an appeal.

iii. If, contrary to that view, SIAC does have a power to award costs, the Judge was entitled to decide that he would only order the Secretary of State to pay costs if her conduct of the appeal was unreasonable.

iv. The Judge was also entitled to decide that the Secretary of State's conduct of the appeal was not unreasonable.

The facts

6

A was born in Habiganj, Bangladesh, on 12 September 1978. He was a dual British-Bangladeshi citizen. He was a British citizen because his father was a British citizen. On 30 March 2020 the Secretary of State gave A notice that she intended to make an order depriving him of his British citizenship (‘decision 1’). As decision 1 explained, her assessment was that he was a British/Bangladeshi dual national who had travelled to Syria and was aligned with ISIL, and that his return to the United Kingdom would pose a risk to national security of the United Kingdom. She was further satisfied that the order would not make him stateless.

7

The Secretary of State certified that decision 1 had been taken in part in reliance on information which, in her opinion, should not be made public in the interest of national security, and because disclosure would be contrary to the public interest. She also notified A of his right of appeal to SIAC. On the same day, she made an order depriving him of his citizenship.

The appeal to SIAC

8

A appealed to SIAC against decision 1 under section 2B of the Special Immigration Appeals Commission Act 1997, on six grounds.

i. He was not a dual Bangladeshi/British citizen so that the order had made him stateless.

ii. The order deprived him of the genuine substance of ‘the rights conferred by virtue of his status as a citizen of the EU’.

iii. The decision was not proportionate as the risk to national security could be addressed by other means.

iv. By making the order when A was outside the United Kingdom, the Secretary of State had deprived him of an effective right of appeal.

v. The order was a disproportionate interference with the article 8 rights of A and of his British wife and children.

vi. The Secretary of State had failed to treat the best interests of A's children as a primary consideration.

The preliminary issue

9

SIAC ordered the trial of a preliminary issue: whether the order depriving A of his citizenship made him stateless. SIAC listed that preliminary issue at the same time as similar preliminary issues in the appeals of C3 and C4. SIAC (the Judge, the Vice-President of the Upper Tribunal (Mr CMG Ockelton), and Mrs Jill Battley) decided, in a judgment handed down on 18 March 2021, after hearing evidence from experts on Bangladeshi citizenship law, that the order did make A stateless. SIAC therefore allowed A's appeal.

A's application for costs

10

A then applied for his costs of the SIAC appeal. After considering the parties' written submissions (A's skeleton argument, a skeleton argument from the Secretary of State and A's reply), the Judge made the decision 2.

The Judge's reasons

11

The Judge described the statutory framework, noting the contrast between SIAC's express powers on an appeal against a deprivation decision and on an application for a statutory review (paragraph 3). He noted that the Special Immigration Appeals Commission (Procedure) Rules 2003 (‘the Rules’) confer no express power to award costs (paragraph 4). A relied on a passage from Halsbury's Laws of England, cited with approval in paragraph 57 the judgment of Laws LJ in R (Cart) v Upper Tribunal [2010] EWHC 3052 (Admin); [2011] QB 120. A also relied on a comment in an oral ruling in a deprivation appeal by Irwin J (as he then was) in Al-Jedda v Secretary of State for the Home Department SC/66/2008 (7 February 2014). A submitted that because SIAC is a superior court of record and there is no statutory restriction on the power to award costs, it has that power.

12

The Secretary of State submitted that although SIAC is a superior court of record, its jurisdiction is limited. Statute confers no power to award costs, and so SIAC has no such power.

13

The Judge said that A's submissions took the passage from paragraph 57 of Cart out of context. The judgment of Laws LJ explains the significance of the status of superior court of record. That status creates a presumption of regularity if there is a challenge to the court's jurisdiction. No such presumption applies to the decisions of inferior courts. It does not follow that the powers of a superior court of record are unlimited, unless expressly limited by statute. That confuses a superior court of record with a court of unlimited jurisdiction. Laws LJ explained that SIAC and the Upper Tribunal have ‘limited jurisdictions’. The limits were ‘cast very wide’ in the exercise of the judicial review jurisdiction but SIAC only has ‘the jurisdiction given to it by statute’ (paragraph 11).

14

The question was whether the power to award costs on an appeal under section 2B of the 1997 Act ‘is part of the jurisdiction conferred on [SIAC] by statute’ (paragraph 12).

15

The Judge held that it was not, for three reasons (paragraph 13).

i. The starting point was the statute. It gave SIAC no power to award costs.

ii. SIAC is a creature of statute. It has no inherent jurisdiction. In some circumstances such a body has implied powers.

iii. It is doubtful whether a power to award costs could ever be necessary for doing justice. Many legal systems operate without such powers. In our system, some tribunals have powers to award costs and others do not. In Al-Jedda Irwin J did not hear argument about SIAC's jurisdiction and made no decision about it. SIAC's power to make directions, conferred by rule 40 of the Rules, meant that it had other powers to enable it to do justice between the parties.

16

It was not necessary to consider whether, had there been such a power, SIAC would have exercised it. It was a difficult question, as, in most cases when a power to award costs is conferred, the method for exercising the power is defined in rules. Here, it had been assumed that there was no such power, and there are no such rules. There was no guidance whether costs should be awarded to the winning party or only if one party had behaved unreasonably. The Judge did not consider that the Secretary of State had behaved unreasonably, and rejected the submission that the Secretary of State's attempt to re-litigate issues of Bangladeshi citizenship law which had been decided in other cases was an abuse of process. Advancing a case based on expert evidence which is not ultimately accepted is not, in itself, unreasonable. ‘The case was argued properly and proportionately by the Secretary of State. The fact that the appellants' arguments prevailed does not undermine that conclusion’ (paragraph 16).

A's application for permission to appeal

17

A applied to SIAC for permission to appeal to this Court. The Judge refused that application on the ground that it had no reasonable prospects of success. A renewed his application to this Court. I considered it on the papers. My provisional view was that the appeal was not arguable but that there should be a hearing at which the arguments could be explored. Such a hearing was listed before Peter Jackson LJ and me. This Court notified the parties shortly before that hearing that permission to appeal would be granted, on the grounds that there was a compelling reason to hear the appeal raised an important issue which had not been...

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