R (on the application of O (a minor, by her litigation friend AO)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Rose,Lord Hodge,Lord Briggs,Lord Stephens,Lady Arden |
| Judgment Date | 02 February 2022 |
| Neutral Citation | [2022] UKSC 3 |
| Court | Supreme Court |
[2022] UKSC 3
Lord Hodge, Deputy President
Lord Briggs
Lady Arden
Lord Stephens
Lady Rose
1st Appellant (O (a minor, by her litigation friend AO))
Richard Drabble QC
Jason Pobjoy
Admas Habteslasie
(Instructed by Solange Valdez-Symonds, Cardinal Hume Centre)
2nd Appellant (The Project for the Registration of Children as British Citizens)
Richard Drabble QC
Isabel Buchanan
Miranda Butler
(Instructed by Maria Patsalos, Mishcon de Reya LLP (London))
Respondent
Sir James Eadie QC
William Hansen
Nicholas Chapman
(Instructed by The Government Legal Department)
Intervener (Amnesty International UK) (written submissions only)
Ronan Toal
Ubah Dirie
Samuel Genen
Adam Tear
(Instructed by Scott-Moncrieff & Associates Ltd (London))
Heard on 23 and 24 June 2021
( with whom Lord Briggs, Lord Stephens and Lady Rose agree)
This appeal raises a question whether subordinate legislation was ultra vires because it set the fee for the exercise by a child or young person of the right to be registered as a British citizen at a level which many young applicants have found to be unaffordable.
The facts may be stated shortly, as they were in the judgment of David Richards LJ ( [2021] EWCA Civ 193; [2021] 1 WLR 3049), from which I derive this account. The claimant, O, was born in the United Kingdom in July 2007, attends school and has never left the UK. She has Nigerian citizenship, but from her tenth birthday she has satisfied the requirements to apply for registration as a British citizen under section 1(4) of the British Nationality Act 1981 (“the 1981 Act”). As explained more fully below, her entitlement arises because she was born in the UK and has lived here for ten years. She is one of three children who live with their mother who is a single parent 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 was made to register O as a British citizen on 15 December 2017. Her mother was unable to raise the full amount of the fee, which was £973 at that time. She was able to raise only £386, which would have covered 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.
Since 6 April 2018 the fee payable on an application by a child has been fixed at £1,012. The fee is fixed at a level which is designed to produce a substantial surplus over the administrative cost of processing an application to be applied in subsidising other parts of the immigration and nationality system.
O challenges the level of the registration fee. She is joined in this challenge by The Project for the Registration of Children as British Citizens (“the PRCBC”), which is a charitable organisation. The PRCBC works to assist children and young persons to ascertain and establish their rights to British citizenship by providing legal advice and representation. It has also lobbied Parliament in relation to the level of the registration fee. The charity, Amnesty International UK, has intervened in the appeal with the permission of the court.
It is not disputed that the right to become a British citizen is an important right as citizenship, once obtained, confers significant rights. Nor is it disputed that for many young people and their families the current level of fees is unaffordable. The difficulties which a young person may encounter from an inability to acquire British citizenship are revealed in the witness statements of teenage applicants which have been made available in these proceedings. It is also not in dispute that a young person's right to apply to be registered as a British citizen under section 1(4) of the 1981 Act, once acquired, continues throughout that person's life. A person, who has gained an entitlement to apply, can therefore acquire British citizenship later once he or she has obtained the means to pay the then current fee.
The 1981 Act established a new regime for the acquisition of citizenship of the UK. Section 1(1) provides that persons born in the UK after the commencement of the relevant parts of the Act on 1 January 1983 are British citizens if at the time of birth their father or mother is a British citizen or is settled in the UK (ie if the parent has indefinite leave to remain). Citizenship by descent is conferred in certain circumstances on persons born outside the UK.
Citizenship can also be obtained by registration. Section 1(3) provides that persons born in the UK after commencement of the Act who are not British citizens by virtue of section 1(1) shall be entitled to be registered as a British citizen if, while they are minors (ie under the age of 18 years), 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. The other main category of case in which citizenship can be obtained by registration, which is the relevant provision in this appeal, is section 1(4) which provides:
“A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1), (1A) or (2) 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.”
The Secretary of State is also given a discretionary power to cause a minor to be registered as a British citizen if she thinks fit: section 3(1) of the 1981 Act.
From the commencement of the 1981 Act a person's entitlement to be registered as a British citizen has been conditional upon his or her payment of a fee. Section 41(2) of the 1981 Act empowered the Secretary of State, with the consent of the Treasury, to make regulations by statutory instrument, 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 a British citizen. Fees regulations have been in place since the commencement of the 1981 Act. The conditional nature of an applicant's entitlement to registration was set out in section 42(1), which provided that “a person shall not be registered under any provision of this Act as a citizen … unless — (i) any fee payable by virtue of this Act in connection with the registration … has been paid”. Section 42(3) provided that “any provision of this Act which provides for a person to be entitled to registration as a citizen of any description … shall have effect subject to the preceding provisions of this section”. At that time and for over 20 years the fees were fixed so as to recover the full cost of the processing of the application.
The basis on which the fees were fixed changed after the enactment of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”). Section 42 of that Act provided that in relation to immigration and nationality fees in, among other enactments, the 1981 Act, the Secretary of State could prescribe an amount intended to exceed the administrative costs of determining or processing an application and to reflect the benefits that the Secretary of State believed were likely to accrue to the person to whom the application related if it succeeded. The instrument prescribing such fees was subject to the affirmative resolution of each House of Parliament. Sections 51–52 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”) repealed the powers for levying fees in specified statutes, including the 1981 Act, and replaced them with a consolidated power to specify fees for applications or claims in connection with immigration or nationality. Section 42 of the 2004 Act was amended to reflect this change but continued to permit the Secretary of State to prescribe fees for applications that were made under the 1981 Act that exceeded their administrative cost and reflected the benefits which accrued from citizenship. Section 20 of the UK Borders Act 2007 (“the 2007 Act”) further amended section 42 of the 2004 Act by inserting subsection (2A), enabling fees to reflect costs referable to other specified applications and functions.
Section 42 of the 2004 Act and sections 51–52 of the 2006 Act were repealed by the Immigration Act 2014 (“the 2014 Act”), which in sections 68–74 contains the framework for the levying of fees in relation to all immigration and nationality applications, including applications to be registered as a citizen under the 1981 Act. These provisions apply to the present case and remain in force.
Section 68(1) and (2) of the 2014 Act provide:
“(1) The Secretary of State may provide, in accordance with this section, for fees to be charged in respect of the exercise of functions in connection with immigration and nationality.
(2) The functions in respect of which fees are to be charged are to be specified by the Secretary of State by order (‘a fees order’).”
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