R (oao (1) The Project for the Registration of Children as British Citizens, (2) O, a child, by her litigation friend, AO, and (3) A, a child, by her litigation friend, NJM) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Jay
Judgment Date19 Dec 2019
Neutral Citation[2019] EWHC 3536 (Admin)
Docket NumberCase Nos: CO/2663/2018; CO/4832/2018; CO/751/2018

[2019] EWHC 3536 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Jay

Case Nos: CO/2663/2018; CO/4832/2018; CO/751/2018

Between:
R (oao (1) The Project for the Registration of Children as British Citizens, (2) O, a child, by her litigation friend, AO, and (3) A, a child, by her litigation friend, NJM)
Claimants
and
Secretary of State for the Home Department
Defendant

Richard Drabble QC with (1) Miranda Butler, (2) Admas Habteslasie and (3) Jason Pobjoy and Isabel Buchanan (instructed by Mishcon de Reya LPP) for the Claimants

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

Hearing dates: 26 th and 27 th November 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Jay Mr Justice Jay

Introduction

1

British citizenship is a status aspired to and cherished by many, conferring benefits on the holder which are both tangible and intangible. The present case is concerned with the rights and best interests of children, and the focus has been on the acquisition of British citizenship by registration. As is well known, those born here with a parent who is either a British citizen or with rights of settlement acquire this status automatically. For present purposes, and simplifying the matter somewhat, children's acquisition of citizenship by registration may be achieved by pursuing one of two avenues. The first requires the fulfilment of certain objective conditions, the completion of an application form and the payment of a fee; the second depends on the completion of an application form, paying the concomitant fee, and the favourable exercise of discretion of the Secretary of State. The British Nationality Act 1981 (“the BNA 1981”) describes those seeking registration pursuant to this first avenue as exercising an “entitlement”, but the exact meaning of that term has given rise to some debate.

2

The registration fee is mandatory and inflexible because the Secretary of State has decided not to allow exemptions, reductions or waivers to meet the merits of individual cases. These fees have risen substantially over the years as Government policy has moved towards a system of self-financing. The detail does not matter for present purposes. Currently, children who are entitled to be registered under the BNA 1981 must pay a fee of £1,012 (the prescribed amount is higher for adults: £1,206 together with £80 for the citizenship ceremony). The Secretary of State has said that only £372 of that fee is attributed to the administrative cost of processing the application; the remainder effectively cross-subsidises other functions in connection with immigration and nationality. Since 6 th April 2007 subordinate legislation made under section 42 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 has set fees at a level which include what may be described as that additional element. The evidence before me is that for a substantial number of children a fee of £1,012 is simply unaffordable. The Claimants contend in various ways that the imposition of this additional element at a level which is unaffordable is unlawful. They challenge the secondary legislation which has set the fee.

3

The issue is undoubtedly important, but it is not novel. The gravamen of the complaint, but not in all its present iterations, was considered by the Court of Appeal in R (Williams) v SSHD [2017] 1 WLR 3283 affirming Hickinbottom J ( [2015] EWHC 1268 (Admin)). The Claimants argue that Williams cannot be squared with subsequent Supreme Court authority; and, in any event, given that the scope of the challenge has broadened, stare decisis is not an insurmountable hurdle across the board.

4

There are six grounds of challenge as follows:

(1) GROUND 1: the level of fee is incompatible with the statutory scheme under the BNA 1981 in that it renders nugatory entitlements to register (ss.1, 3(2) and para 3 of Schedule 2), and for that reason is not authorised by the vires-creating power conferred by s.68 of the Immigration Act 2014.

(2) GROUND 2: in setting the fee for registration of children as British citizens under the BNA 1981 at £1,012, the Secretary of State failed to discharge her duties under s.55 of the Borders, Citizenship and Immigration Act 2009 (“the section 55 duty”).

(3) GROUND 3: this alleges a breach of the Secretary of State's public sector equality duty under s.149 of the Equality Act 2010 (“the PSED”).

(4) GROUND 4: this alleges an equivalent breach of Tameside principles.

(5) GROUND 5: this alleges a breach of the rights of O and A under Article 8 of the Convention.

(6) GROUND 6: this alleges a breach of A's rights under Article 8 combined with Article 14 because the requirement imposed by s.50(9A) of the BNA 1981 is incompatible with those rights.

5

An apparently formidable list of grounds dwindles substantially when the following matters are considered. Ground 1 directly confronts Williams and, subject to any other difficulties, requires an examination of the true ratio of that case and its compatibility with subsequent Supreme Court authority. Ground 2 is not covered by Williams and captures what I would characterise as the Claimant's overall merits case. Ground 3 adds very little, if anything, to the previous ground. Ground 4 is entirely parasitic on Ground 2. Ground 5 adds nothing, and Mr Richard Drabble QC for the Claimants rightly did not develop it. Ground 6 has now been conceded by the Secretary of State following the decision of this Court in R (K) v SSHD [2018] EWHC 1834 (Admin) which has not been taken on appeal, although the parties are not in agreement as to the form of any relief.

6

It is convenient to divide this judgment into the following chapters:

(1) The Claimants and their Individual Circumstances

(2) The Advantages of British Citizenship

(3) The Impact of the Fee

(4) The Defendant's Decision-Making

(5) A Synopsis of the Statutory Scheme

(6) The Decision of the Court of Appeal in Williams

(7) Ground 1

(8) Ground 2

(9) Ground 3

The Claimants and their Individual Circumstances

7

PRCBC is a charitable organisation focusing exclusively on the registration of children as British citizens. It works to assist children and young adults to ascertain and establish their British citizenship rights by way of legal advice and representation, and it has lobbied Parliament in connection with the scale of the registration fee. For present purposes it claims to represent the interests of all those adversely affected by the fee. The precise number is disputed and cannot be ascertained: a figure of 120,000 has been put forward for children in this country without citizenship or immigration leave, although those who would qualify for the former, who would not wish to be registered at all or could in fact pay the fee constitute an uncertain number.

8

O was born in the UK on 14 th July 2007. She has never left the UK. O attends school and is not legally allowed to work. From 14 th July 2017 O satisfied the requirements for registration under s.1(4) of the BNA 1981 having been born and resided here continuously for ten years. O's mother is a single parent and is in receipt of state benefits. O, her sibling and her mother have limited leave to remain. O's mother has been unable to pay the full fee but has been able to raise from third parties that part of it which represents the administrative element of processing an application. The Secretary of State has refused to determine O's application on the basis that the full amount must be paid.

9

It is clear from the available evidence that O and her mother cannot as a matter of practical reality pay the full fee. They could only do so by taking steps which to my mind would be wholly unreasonable. O's evidence is that she regards herself as British and wishes to be treated as such by her friends and by society. Her friends do not perceive her as “being British like them”.

10

A was born in the UK on 13 th June 2016. Her mother is Nigerian and at the time of A's birth she was married to a Lithuanian citizen. A's biological father is and has been at all material times a British citizen. A would be automatically entitled to British citizenship pursuant to s.1(1) of the BNA 1981 were it not for s.50(9A). Both A and her mother have limited leave to remain in the UK. The family is in receipt of state benefits and cannot afford the registration fee. An application was made on behalf of A for registration under s.3(1) of the BNA 1981 with the Secretary of State being invited to waive the fee. The latter has said that the full fee must be paid before the application may be considered.

The Advantages of British Citizenship

11

As Baroness Hale stated in ZH (Tanzania) v SSHD [2011] 2 AC 166 para 30, nationality is of particular importance in assessing the best interests of any child. The United Nations Convention on the Rights of Children (“UNCRC”) recognises the right of any child to be registered and acquire a nationality; and to preserve his identity, including his nationality (Articles 7 and 8). In addition:

“the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond.” (see the publication referred to with approval by Baroness Hale, para 32)

[T]here is much more to British citizenship than the status it gives to the children in immigration law … [i]t carries with it a host of other benefits and advantages … [which] ought never to be left out of account.” (Lord Hope, para 41)”

12

Further, in R (Johnson) v SSHD [2017] AC 365, Baroness Hale DPSC stressed the link between...

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