R (on the application of Williams) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Davis,Lord Justice Underhill,Lady Justice Macur
Judgment Date28 February 2017
Neutral Citation[2017] EWCA Civ 98
Docket NumberCase No: C4/2015/1829

[2017] EWCA Civ 98

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ADMINISTRATIVE COURT

SITTING IN BIRMINGHAM

MR JUSTICE HICKINBOTTOM

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Davis

Lord Justice Underhill

and

Lady Justice Macur

Case No: C4/2015/1829

Between:
R (on the application of Williams)
Appellant
and
The Secretary of State for the Home Department
Respondent

Stephen Knafler QC and Yaaser Vanderman (instructed by Birmingham Community Law Centre) for the Appellant

James Eadie QC and William Hansen (instructed by the Government Legal Department) for the Respondent

Hearing dates: 18 &19 January 2017

Approved Judgment

Lord Justice Davis

Introduction

1

For very many years individuals applying for registration as a British citizen have been required to pay a fee for that purpose. The practice has in general terms a clear and obvious justification. But what happens when an individual, otherwise entitled to registration as a British citizen, is unable to pay the requisite fee? That is the issue thrown up by this case. It in fact arises in the context of a child receiving support under the provisions of s. 17 of the Children Act 1989 and who, at the relevant time, was by reason of destitution unable to pay the fee required for an application under s. 1(4) of the British Nationality Act 1981.

2

It is the position of the respondent Secretary of State that under the relevant legislative provisions in force at the time she was entitled to reject the application on grounds of non-payment of the fee. It is the position of the appellant that such a result is legally unsustainable. That is said to be so on four grounds, advanced as alternative arguments.

(1) First, it is said that the operation of the legislative scheme without an available power of fee exemption or waiver for cases such as the present was beyond the powers conferred on the Secretary of State by the primary legislation ("the ultra vires ground");

(2) Second, it is said that such a result operated unjustifiably to breach the appellant's rights under Article 8 of the European Convention on Human Rights ("the Article 8 ground");

(3) Third, it is said that such a result gave rise to unjustifiable discrimination contrary to the appellant's rights under Article 14 of the Convention ("the Article 14 ground");

(4) Fourth, it is said that such a result contravened common law principles of legality ("the common law ground").

3

The decision of the trial judge, Hickinbottom J, was contained in a very detailed and careful reserved judgment handed down on 11 May 2015: [2015] EWHC 1268 (Admin). It was adverse to the appellant on all grounds. The judge refused permission to appeal; but permission was granted on the papers by Underhill LJ on 22 October 2015.

4

Before us the appellant was represented by Mr Stephen Knafler QC (who also appeared below) leading Mr Yaaser Vanderman. The respondent Secretary of State was represented by Mr James Eadie QC leading Mr William Hansen (both of whom appeared below). I would like to acknowledge the thoroughness and care with which the respective arguments, both written and oral, were presented.

Background Facts

5

The relevant facts can be very shortly stated for present purposes.

6

The appellant, Ric Williams, was born in Stoke-on-Trent on 20 September 2003. He is the child of parents who are both Jamaican nationals. (It was common ground before us that he would himself be entitled to claim Jamaican citizenship.) The parents had arrived in the United Kingdom on 4 August 2002, with leave to enter as visitors. Thereafter various extensions on various bases were granted: and the appellant was born when they were lawfully present in the United Kingdom. From 5 March 2010, however, their leave expired. They nevertheless stayed on, with no legal entitlement to work or to benefits. No removal directions were ever set, however.

7

The appellant himself has remained in the United Kingdom throughout this entire period. Without going into detail, it also may be added that he has certain particular needs. He has from the age of 3 been attending various special classes and schools.

8

On 11 March 2014, after the appellant had been continuously resident in the United Kingdom for over 10 years, an application for British citizenship was submitted on his behalf. At that time the required fee was £673. It was not provided with the application. It is accepted that he and his parents could not afford it. They had no money. In fact, from 31 July 2013 they had been living in accommodation provided by Sandwell MBC, the relevant local authority, at an address in Smethwick. This had been provided by the local authority, by reference to the appellant's needs, pursuant to its obligations under s. 17 of the Children Act 1989 ("the 1989 Act").

9

The application was rejected by letter of 17 March 2014 on the ground of non-payment of the fee. The letter stated in terms that the fee was prescribed by law and there was no discretion to waive the fee or accept a lesser amount, irrespective of the particular circumstances of the applicant. Re-submission of the application was invited but never happened at that stage. The money simply was not there.

10

A pre-claim letter was promptly sent by solicitors on the appellant's behalf on 18 March 2014. The rejection of the application was, however, maintained. The claim for judicial review was issued on 12 June 2014. Permission to apply was in due course granted.

11

Shortly before the hearing listed in the Administrative Court in Birmingham before Hickinbottom J on 20 March 2015 the position of the parents, and of the appellant, changed. The appellant himself on 12 February 2015 was granted leave to remain, initially for a period of 30 months, under paragraph 276ADE of the Immigration Rules. Each parent was also on 12 February 2015 granted leave to remain, outside the Immigration Rules, for a similar period of 30 months, with leave to work and with access to benefits. By reason of this change in circumstances, it was accepted that the appellant and his family were no longer to be regarded as destitute for the purpose of the proceedings and it was contemplated that they would in due course be able to raise the requisite fee for the appellant's citizenship application.

12

This has in fact happened. The application was resubmitted with the required fee. Thereafter the appellant was granted British citizenship – after the decision of Hickinbottom J and after permission to appeal was granted by Underhill LJ – on 5 April 2016. Thus the object of the original proceedings had now, by these means, been achieved: at all events, as between the appellant himself and the Secretary of State there was and is in practice no outstanding dispute. At a hearing convened shortly before the hearing of the appeal this court (Davis LJ and Underhill LJ) ruled that, exceptionally, the court would nevertheless entertain the appeal for the reasons there given: see [2017] EWCA Civ 64.

The legal framework

13

The legislative framework is set out in meticulous detail by Hickinbottom J in his judgment. Since anyone reading this present judgment will surely have access to that judgment I will not here explicitly replicate that detail, whilst gratefully taking it all on board.

14

The starting point for present purposes can be taken to be s. 1 of the British Nationality Act 1981 ("the 1981 Act") and, more precisely, s. 1(4). That provides, in the relevant respects, as follows:

"A person born in the United Kingdom… who is not a British citizen… shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person's life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90."

15

Pausing there, it can be seen that those provisions set out a number of requirements if registration of citizenship is to be achieved by this route. First, an application may be made at any time after the applicant has reached the age of 10; second the applicant must have been born in the United Kingdom (albeit not a British citizen): third, the applicant must in that time have lived continuously in the United Kingdom (subject to permitted breaks not exceeding 90 days in each year). By s. 41A of the 1981 Act, as amended, a further requirement was added relating to good character.

16

Thus it is important to note that the scheme in this regard is not simply one of automatic acquisition of citizenship status such as arises for a child born to a British parent in the United Kingdom: see s. 1(1) of the 1981 Act. Rather, it is a right to citizenship which may only be exercised on application made. A similar requirement for an application, as a necessary pre-condition of the grant of citizenship, is for example contained in those categories falling within s. 1(3) and s. 1(3A) of the 1981 Act.

17

As originally enacted, s. 42(1)(a) of the 1981 Act provided as follows:

"… a person shall not be registered under any provision of this Act as a citizen of any description… unless… any fee payable by virtue of this Act in connection with the registration… has been paid…"

That provision was replaced, but with corresponding effect, by s. 42A as introduced, as from 1 January 2004, by provisions of the Nationality, Immigration and Asylum Act 2002.

18

So far as payment and collection of fees for applications were concerned, s. 41(2) of the 1981 Act made provision for the making of regulations in that regard. In due course, those regulations as made were also replaced. This was done by provisions contained in the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act") which at the time of the decision relevant to this case was...

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