R (on the application of Project for the Registration of Children as British Citizens (a company Ltd by guarantee) and another) v Secretary of State for the Home Department (Speaker of the House of Commons and another intervening)
| Jurisdiction | England & Wales |
| Judge | Richards,Singh,Davies LJJ |
| Judgment Date | 18 February 2021 |
| Neutral Citation | [2021] EWCA Civ 193 |
| Court | Court of Appeal (Civil Division) |
Nationality - British citizenship - Fees - Children applying for registration as British citizens unable to afford registration fee - Whether regulations prescribing registration fee ultra vires - Whether regulations made in breach of Secretary of State’s statutory duty to have regard to need to safeguard and promote children’s welfare -
The three claimants were a charitable organisation which focused exclusively on the registration of children as British citizens and two children who had applied to be registered as British citizens, pursuant to sections 1(4) and 3(1) respectively of the British Nationality Act 1981F1. Article 10 of the Immigration and Nationality (Fees) Order 2016F2, made pursuant to the power conferred on the Secretary of State by section 68 of the Immigration Act 2014F3, provided that a fee was to be charged for an application for registration as a British citizen. At the relevant time the Immigration and Nationality (Fees) Regulations 2018F4 provided that the fee for a child’s application for registration as a British citizen under the 1981 Act was £1,012. Neither of the child claimants, whose families were in receipt of state benefits, could afford the registration fee and the Secretary of State refused their applications on the ground that the fee had not been paid. The claimants brought a claim for judicial review on the grounds that: (i) the fee imposed by the 2018 Regulations was incompatible with the scheme of the 1981 Act and ultra vires section 68 of the 2014 Act in that it rendered nugatory the entitlement to be registered as a British citizen; and (ii) when making the 2018 Regulations the Secretary of State had failed to discharge her duty under section 55 of the Borders, Citizenship and Immigration Act 2009F5 to have regard to the need to safeguard and promote the welfare of children who were in the United Kingdom. The judge rejected ground (i) but allowed the claim on ground (ii), finding that various answers and statements given by ministers during Parliamentary debates failed to show that the Secretary of State had complied with her duty under section 55 of the 2009 Act.
On appeal by the Secretary of State and cross-appeal by the first and second claimants, and on the question whether the Secretary of State’s reliance on the Parliamentary debates was permitted under article 9 of the Bill of Rights 1688F6 and compatible with Parliamentary privilege—
Held, (1) dismissing the cross-appeal, that where it was said that delegated legislation had illegitimately curtailed rights conferred by primary legislation, the question was whether, on a proper construction of the primary legislation and, if different, the primary legislation under which the delegated legislation had been made, the delegated legislation had been authorised in the terms in which it had been made; that the Court of Appeal had already held that the British Nationality Act 1981, together with earlier legislation that was in materially the same terms as the Immigration Act 2014, authorised delegated legislation which set the fee for an application for registration as a British citizen at a level that would be impossible for some applicants to pay; that although the Supreme Court had since held that, where fundamental rights were in issue, fees had to be affordable in order to be lawful, that principle did not apply to an application to be registered as a British citizen under the 1981 Act, since that was not a fundamental right, but rather was a right which the legislature had chosen by statute to create and bestow in certain specified circumstances; and that, accordingly, the judge had been right to reject the contention that the fee imposed by the Immigration and Nationality (Fees) Regulations 2018 for a child’s application for registration as a British citizen was ultra vires (post, paras 60–67, 117, 118, 119, 120, 124, 125).
(2) Dismissing the appeal, that the courts had recognised a number of categories of use to which Parliamentary materials might be put without contravening the prohibition on the use of such materials contained in article 9 of the Bill of Rights 1688 and the general principles of Parliamentary privilege; that one of those categories was using ministerial statements in judicial review proceedings for the limited purpose of identifying the Government’s purposes and reasons for taking or proposing the action or decision under challenge in the proceedings, where those purposes or reasons had been formulated outside Parliament and explained action taken outside Parliament; that, however, the use of Parliamentary materials proposed by the Secretary of State in the present case went far beyond simply informing the court of, for example, the reasons for a particular decision, nor was it a case in which reliance was placed on a statement by a minister as to the interests and factors that had been addressed by the Secretary of State in the performance of her duty under section 55 of the Borders, Citizenship and Immigration Act 2009; that, rather, the court was being asked to assess, by reference to questions and issues raised by members of both Houses of Parliament and by reference to the answers and statements given and made by ministers, whether the Secretary of State had in the course of the debates performed her duty under section 55; that such use did not fall within any of the recognised categories of exceptions and was therefore prohibited by article 9 of the Bill of Rights and by the general principles of Parliamentary privilege; that it followed that the Secretary of State was not permitted to rely on the Parliamentary materials; and that, accordingly, there being no other evidence to demonstrate that the Secretary of State had complied with her duty under section 55, the judge had been right to find that she had failed to do so (post, paras 108–109, 116, 117, 118, 125).
The following cases are referred to in the judgments:
Buchanan v Jennings (Attorney General of New Zealand intervening)
Pepper v Hart [
Prebble v Television New Zealand Ltd [
R v Lord Chancellor, Ex p Witham [
R v Secretary of State for the Home Department, Ex p Brind [
R v Secretary of State for the Home Department, Ex p Simms [
R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants [
R (Al-Enein) v Secretary of State for the Home Department
R (DA) v Secretary of State for Work and Pensions (Shelter Children’s Legal Services intervening)
R (Heathrow Hub Ltd) v Secretary of State for Transport
R (JS) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening)
R (Jackson) v Attorney General
R (Johnson) v Secretary of State for the Home Department
R (MM (Lebanon)) v Secretary of State for the Home Department (Children’s Comr intervening)
R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) (Nos 1 and 2)
R (Williams) v Secretary of State for the Home Department
Toussaint v Attorney General of Saint Vincent and the Grenadines
Warsama v Foreign and Commonwealth Office
Wilson v First County Trust Ltd (No 2)
ZH (Tanzania) v Secretary of State for the Home Department
Zoumbas v Secretary of State for the Home Department
No additional cases were cited in argument or were referred to in the skeleton arguments.
APPEAL from Jay J
By a claim form the claimants, the Project for the Registration of Children as British Citizens and two child claimants, O and A, sought judicial...
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