R Ric Williams by his father and litigation friend Richard Williams v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 11 May 2015 |
| Neutral Citation | [2015] EWHC 1268 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 May 2015 |
| Docket Number | Case No: CO/2968/2014 |
[2015] EWHC 1268 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/2968/2014
Stephen Knafler QC (instructed by Michael Bates, Birmingham Community Law Centre) for the Claimant
James Eadie QC and William Hansen (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 20 March 2015
Further written submissions: 9–17 April 2015
Introduction
This claim raises the following important issue: can the Secretary of State refuse a child's application for British nationality in circumstances in which the child can satisfy all other requirements but, as a result of destitution, cannot pay the required fee?
The Claimant challenges the Secretary of State's decision received on 17 March 2014 to reject his application to be registered as a British citizen, on the basis that the prescribed fee of £673 had not been paid, on two grounds, namely:
i) Ground 1: The Secretary of State acted outside her powers in failing to incorporate into the statutory scheme a fee exemption for applications to register British nationality by children who are in receipt of local authority assistance because of destitution.
ii) Ground 2: In not according such an exemption to the Claimant, the Secretary of State breached her duty under article 8 of the European Convention on Human Rights ("ECHR") by failing properly to respect his family and/or private life; and/or her duty under article 14 read with article 8 by discriminating against the Claimant on the ground of his impecuniosity.
Ground 1 turns on the true construction of the statutory provisions under which the Secretary of State has decided not to include a fee exemption for destitute minors in the scheme. Ground 2 is necessarily, to an extent, fact-specific.
Before me, Stephen Knafler QC appeared for the Claimant; and James Eadie QC and William Hansen for the Secretary of State. At the outset, I thank them for their valuable contributions.
The Legislative Framework
The statutory scheme comprises several elements, and it may be helpful if I set out in chronological order the abbreviations I use in this judgment in respect of the relevant statutory provisions:
The 1971 Act: The Immigration Act 1971.
The 1981 Act: The British Nationality Act 1981.
The 1989 Act: The Children Act 1989. References in this judgment to simply "section 17" are references to section 17 of the 1989 Act, unless otherwise indicated.
The 2002 Act: The Nationality, Immigration and Asylum Act 2002.
The 2004 Act: The Asylum and Immigration (Treatment of Claimants etc) Act 2004 as amended by section 20 of the UK Borders (Treatment of Claimants etc) Act 2007.
The 2006 Act: The Immigration, Asylum and Nationality Act 2006.
The 2011 Fees Order: The Immigration and Nationality (Fees) Order 2011 (SI 2011 No 445).
The 2013 Fees Regulations: The Immigration and Nationality (Fees) Regulations 2013 (SI 2013 No 749).
The 2015 Fees Order: The Immigration and Nationality (Fees) Order 2015 (SI 2015 No 746).
The 2015 Fees Regulations: The Immigration and Nationality (Fees) Regulations 2015 (SI 2015 No 768).
Section 1 of the British Nationality Act 1981 ("the 1981 Act") sets out the ways in which British nationality can be acquired by birth or adoption. Some are automatic; for example, a person born in the United Kingdom whose father or mother is a British citizen is automatically a British citizen, without any application being made or any other requirements being fulfilled (section 1(1)(a)). Some, however, require an application for registration to be made.
One route to nationality that falls into this latter category is found in section 1(4), under which the Claimant sought British citizenship. So far as relevant to this claim, it provides:
"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."
This refers to an entitlement ("… shall be entitled…"), but that entitlement is subject to preconditions. By section 1(4) itself, the applicant must have been born in the United Kingdom and lived here for the first ten years without a significant break. By section 41A of the 1981 Act, an application under section 1(4) will not be granted unless the Secretary of State is satisfied that the applicant is of good character; and, by section 42, an adult applicant will not be registered unless he has made the relevant citizenship oath and pledge at a citizenship ceremony. Furthermore, the statutory scheme provides that, to achieve British citizenship under section 1(4), registration is required; and, to obtain registration, an application has to be made. A fee is payable on such an application.
Alan Sparks is the Head of the Fees and Income Planning Team within the Financial Planning Unit of the Home Office. As such, he is responsible for Home Office income planning and fee setting. In paragraphs 7–9 of his statement of 9 March 2015, he explains that fees for nationality applications have been routinely charged since 1870. Until 1982, they were set at a level merely to deter frivolous applications. However, from 1982, fee levels were set to reflect the value of British nationality to the applicant and to achieve full-cost recovery for nationality applications. Section 42 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 as amended by section 20 of the UK Borders (Treatment of Claimants etc) Act 2007 ("the 2004 Act"), allowed the Secretary of State to prescribe fees for nationality applications exceeding the administrative costs of processing such applications (see paragraph 17 below); and, using that provision, since 2007 the level of some fees has been set with a view to contributing to the general costs of the border and immigration system by, in effect, a cross-subsidy.
From 2014–15, the policy has been taken a step further. The Home Office Impact Assessment for the Immigration and Nationality (Fees) Regulations 2014 ("the 2014–15 Impact Assessment") sets out the current overarching fiscal policy objective:
"The Home Office must ensure that there are sufficient resources to control migration for the benefit of the UK in a way that achieves value for money for the taxpayer. Government intervention is necessary to ensure a balanced budget…
The specific policy objective of this legislation is to generate sufficient income to ensure the Home Office has a balanced budget for the financial year 2014–15. This will enable the Home Office to run a sustainable immigration system — making timely, correct decisions on who may visit and stay and deterring, stopping or removing those who have no right to be here — in a way that achieves value for money for the taxpayer. Policy objectives on immigration and nationality fees are: (1) that those who benefit directly from our immigration system (migrants, employers and educational institutions) contribute towards meeting its costs, reducing the contribution from the taxpayer; (2) that the fees system is simplified where possible, aligning fees where entitlements are similar; (3) that fees are set fairly, at a level that reflects the value of a successful application to those who use the service."
As a result, fees were increased across the board by 4% — and there were greater increases in relation to some specifically targeted fees — to enable the books to be balanced. It is estimated by Mr Sparks that the positive contribution of nationality applicants in that exercise will be about £130m in the year 2015–16.
The 2014–15 Impact Assessment sets out the unit costs of various "products" (including different types of application), as well as the relevant fee in 2013–14 and the proposed fee and forecast volumes for the following year. For an application under section 1(4) for a child, the unit cost for 2013–14 was £187, and the fee £673; for 2014–15, the figures were £144 and £669 respectively; and for 2015–16, they are £223 and £749. By way of comparison, for a postal application for leave to remain, the unit cost is currently £299, and the fee £649.
In respect of nationality application fees, the statutory provisions are by no means straightforward, and they have regularly changed over time. I will deal first with the provisions by which liability for a fee has been and is imposed (paragraphs 12–15), before turning to the provisions concerning the amount of such fee (paragraphs 17 and following).
As originally enacted, section 42(1)(a) of the 1981 Act provided that:
"… 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…".
Section 42(3) provided that:
"Any provision in 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."
With effect from 1 January 2004, paragraph 1 of Schedule 1 to the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") replaced section 42...
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