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

In C7 v Secretary of State for the Home Department [2023] EWCA Civ 265, [2023] K.B. 317, the Court of Appeal heard and dismissed C7’s appeal from Chamberlain J. Elisabeth Laing LJ (with whom Underhill and Dingemans LJJ agreed) stated expressly that her judgment did not concern SIAC’s powers in reviews (para 5).

In relation to appeals under section 2B, Elisabeth Laing LJ held that SIAC had no inherent or implied power to award costs. Any costs powers would derive from section 5 of the Act and from rules made by the Lord Chancellor under that section. For present purposes, the key parts of her reasoning are as follows:

“74… the language of section 5, which conferred on the Lord Chancellor, in very broad terms, powers to regulate SIAC's procedure, evinced a clear intention that, if SIAC was to have any power to award costs, it could only be conferred by rules made by the Lord Chancellor. An inherent power to award costs (or, indeed, to make any rules about its own procedure) could not co-exist with the powers conferred on the Lord Chancellor by section 5, which occupied the relevant field.

…

82…  There is a detailed statutory code governing SIAC's procedural powers. The rule-maker under that code is the Lord Chancellor, not SIAC. If the Lord Chancellor has not made a rule authorising SIAC to make an award of costs, SIAC does not have an implied power to do so” (emphasis added).

We shall return to this reasoning below.

In a paragraph cited by SIAC, Elisabeth Laing LJ stated as follows:

“83.

I should make clear that, in reaching this conclusion, I have not been influenced by the amendments to the 1997 Act which gave SIAC power to set aside certain decisions on a statutory review (sections 2C-2E). I do not consider that these changes, which arguably gave SIAC a power to award costs in those contexts, can cast light on the meaning of section 5, which, for present purposes, was in its current form before the statutory review amendments were made.”

This paragraph does not assist Mr Armstrong. First, Elisabeth Laing LJ is here saying that the enactment of SIAC’s review powers cannot cast light on the meaning of section 5. We do not see how that conclusion is relevant to interpreting the review powers. Secondly, Elisabeth Laing LJ says no more than that the changes brought about by the enactment of the review powers “arguably” included a power to award costs in reviews. It is plain that, by describing the point as arguable, she left open the question whether SIAC has a costs power in reviews and did not decide that question.