Project for the Registration of Children as British Citizens (a company Ltd by guarantee) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice David Richards,Lord Justice Singh,Lady Justice Nicola Davies
Judgment Date18 February 2021
Neutral Citation[2021] EWCA Civ 193
Docket NumberCase No: C4/2020/0113, 0665, 0669

[2021] EWCA Civ 193

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Jay

[2019] EWHC 3536 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice David Richards

Lord Justice Singh

and

Lady Justice Nicola Davies

Case No: C4/2020/0113, 0665, 0669

The Queen (on the application of

Between:
(1) Project for the Registration of Children as British Citizens (a company limited by guarantee)
(2) O (a minor, by her litigation friend AO))
Respondents/Claimants
and
The Secretary of State for the Home Department
Appellant/Defendant

and

(1) The Speaker of the House of Commons
(2) The Clerk of the Parliaments
Intervenors

Sir James Eadie QC, William Hansen and Nicholas Chapman (instructed by the Government Legal Department) for the Appellant

Richard Drabble QC, Miranda Butler and Isabel Buchanan (instructed by Maria Patsalos, Mischon de Reya LLP) for the First Respondent

Richard Drabble QC, Jason Pobjoy and Admas Habteslasie (instructed by Solange Valdez-Symonds, Cardinal Hume Centre) for the Second Respondent

Hearing dates: 6 and 7 October 2020

Approved Judgment

Lord Justice David Richards

Introduction

1

At the hearing of these appeals, the court raised with the parties whether the reliance by the Secretary of State on the contents of debates in both Houses of Parliament in the court below and before us contravened Article 9 of the Bill of Rights 1689 and the rules of parliamentary privilege. Having heard brief oral submissions and received fuller written submissions after the hearing from both parties, the court considered it appropriate to inform the Parliamentary authorities of this issue and invite them to intervene, if they so wished. They did intervene and we received written submissions on behalf of the Speaker of the House of Commons and, on behalf of the House of Lords, the Clerk of the Parliaments. We received written submissions in response on behalf of the Secretary of State on 15 December 2020.

2

The substantive issues in these appeals concern the lawfulness of the fee charged to children applying to be registered as British citizens under the British Nationality Act 1981 (the 1981 Act). Under delegated legislation made under the Immigration Act 2014, the fee payable on an application by a child has been fixed since 6 April 2018 at £1,012. The Government states that the administrative cost of processing an application is £372. The fee is fixed at a level which is designed to produce a surplus of over £640, to be applied in subsidising other parts of the nationality, immigration and asylum system.

3

The level of this fee was challenged by applications for judicial review brought by three claimants.

4

Two of the claimants were individual children whose registration applications were refused for failure to pay the fee. The claim of one of them, A, has been settled, having succeeded below on a ground not relevant to the other appeals.

5

The other individual claimant, O, was born in the UK in July 2007, attends school and has never left the UK. She has Nigerian citizenship, but from her 10 th birthday she has satisfied the requirements to apply for registration as a British citizen under section 1(4) of the 1981 Act, having been born here and having lived here for 10 years. She is one of three children, all living with their mother as a single parent who is in receipt of state benefits. In June 2015, the local authority began supporting O's family on the basis that they were destitute. An application for her registration as a British citizen was made on 15 December 2017. Her mother was unable to raise the full amount of the fee (£973 at that time), but she was able to raise £386, the administrative cost of processing the application. Because the full fee was not paid, the Secretary of State refused to process the application at that time.

6

The other claimant is The Project for the Registration of Children as British Citizens (the PRCBC), a charitable organisation which works to assist children and young adults to ascertain and establish their rights to British citizenship by way of legal advice and representation. It has lobbied Parliament in connection with the scale of the registration fee.

7

Although the registration fee for children was challenged on a number of grounds below, only two are in issue on these appeals.

8

The first issue is whether the level of the fee is incompatible with the statutory scheme under the 1981 Act. It is said that it renders nugatory for a significant number of children the entitlement to registration as a British citizen, and for that reason the fee of £1,012 is ultra vires the power to fix fees conferred by section 68 of the Immigration Act 2014.

9

For the reasons given in his judgment, reported at [2020] 1 WLR 1486, Jay J rejected this ground of challenge, holding that he was bound by the decision of this court in R (Williams) v SSHD [2017] EWCA Civ 98, [2017] 1 WLR 3283 ( Williams). He certified his decision on this ground under section 12 of the Administration of Justice Act 1969 for the purposes of a leapfrog appeal to the Supreme Court. The Supreme Court refused permission to appeal, observing that this court should have the opportunity to consider Williams in the light of the Supreme Court's decision in R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869 ( Unison). Permission to appeal to this court was subsequently granted by Phillips LJ.

10

The other relevant ground of challenge was that, in fixing the fee for applications for registration by a child, the Secretary of State had failed to comply with the statutory duty, imposed on her by section 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act), to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom when discharging any functions in relation to immigration, asylum or nationality.

11

In order to establish compliance with this duty, the Secretary of State relied on a witness statement of a senior official in the Home Office and also on what was said in the course of debates in Parliament. It is in this context that the issue under the Bill of Rights arises.

12

The judge held that the Secretary of State had failed to comply with her duty under section 55. He made a declaration that the Secretary of State had breached the duty under section 55 in setting the fee at £1,012 under the Immigration and Nationality (Fees) Regulations 2018. He made a similar declaration as regards the fee of £973 previously fixed by the Immigration and Nationality (Fees) Regulations 2017. The judge granted the Secretary of State permission to appeal against these declarations. The claimants asked the judge to go further and to declare the regulations unlawful and to make an order quashing them. By its respondent's notice, the PRCBC seeks additional orders in those terms.

Relevant legislation

13

The 1981 Act provides for those who are, or may become, British citizens. By section 1(1), a person born in the UK after the commencement of relevant parts of the Act on 1 January 1983 (commencement) is ipso facto a British citizen if at the time of birth their father or mother is a British citizen or is settled in the UK. Citizenship by descent is ipso facto conferred in certain circumstances on persons born outside the United Kingdom.

14

Other provisions in section 1 provide an entitlement to be registered as a British citizen, in particular in two main categories of cases. Section 1(3) provides that a person born in the UK after commencement who is not a British citizen by virtue of section 1(1) shall be entitled to be registered as a British citizen if, while they are a minor, their father or mother becomes a British citizen or becomes settled in the UK, and an application is made for registration as a British citizen. An alternative right to be registered as a British citizen is provided by section 1(4) where a person born in the United Kingdom after commencement is entitled, on an application made at any time after they have attained the age of ten years, to be registered as a British citizen if, in each of their first ten years, they were not absent from the United Kingdom for more than 90 days.

15

Section 3(1) confers a discretionary power on the Secretary of State to register a person as a British citizen if an application is made while they are still a minor. More specific provisions for registration are contained elsewhere in the Act.

16

Section 41(2) conferred on the Secretary of State power, with the consent of the Treasury, to make provision by regulations (subject to annulment by resolution of either House of Parliament) for the imposition, recovery and application of fees in connection with, among other things, applications for registration as British citizens. The payment of fees has been required for such applications at all times since commencement. Section 42(1) provided that “a person shall not be registered under any provision of this Act as a citizen… unless any fee payable by virtue of this Act in connection with the registration…has been paid”. A decision was taken at that time to achieve full cost recovery for nationality applications, and the fees were fixed accordingly.

17

A significant change was made to the fees regime by section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act). It provided that in prescribing fees for an...

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