R VF v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Anthony Elleray |
| Judgment Date | 23 November 2017 |
| Neutral Citation | [2017] EWHC 3138 (Admin) |
| Docket Number | CO/820/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 November 2017 |
[2017] EWHC 3138 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Anthony Elleray QC
(Sitting as a Deputy Judge of the High Court)
CO/820/2017
APPEARANCES
Miss A Weston (instructed by the Migrant Resource Centre) appeared for the Claimant.
Mr S Singh (instructed by the Government Legal Department) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
This is an application by “VF”. VF is the child of a Nigerian national, and was born on 21 st February 2006 in this country. She has sought judicial review of a rejection of her application for citizenship because she was not paying the full fee demanded by the Secretary of State for the Home Department (“SSHD”) for citizenship. She appears before me today by Miss Weston. SSHD is represented by Mr Singh.
Mr Singh takes, in effect, as a preliminary issue on behalf of SSHD that I should dismiss this application in my discretion because it has become academic. In factual context on 27 th September 2017, VF obtained her citizenship. She did so because the fees required by SSHD were paid by a member or members of the public. It is fair to note that in June 2017, Channel 4 “Dispatches” broadcast a short documentary about the situation of children born in the UK and entitled to register as British but who are prevented from doing so as a consequence of inability to pay the fee required. VF was interviewed in context with the permission of her mother and litigation friend. That prompted, in effect, public subscription for the fee for citizenship.
VF had entitlement to citizenship under s.1(4) of the British Nationality Act 1981 but that was conditional on paying the fee. The fee that was relevant to her application was £936. Section 68 of the Immigration Act 2014 empowered SSHD to provide for fees in connection with functions which included the application for citizenship. The relevant fees order, referred to in s.68(2), is The Immigration and Nationality (Fees) Order 2016. Article 3 of that order provides in mandatory terms that the SSHD must charge fees specified in fee regulations, relevant regulations, to which Art.10 of the 2016 order refers. It takes one to table 7 which sets out a maximum fee of £1500. The regulations made under that order, The Immigration and Nationality (Fees) Regulations 2016, include the £936 to which I refer.
In issuing her challenge to the November 2016 rejection of her underpaying the fee or rejecting her application on the basis of underpaid fee, VF sought the quashing of that decision and other ancillary relief. On 28 th April 2017, Mr James Lewis QC, sitting as a Deputy Judge of this court, refused permission to seek judicial review. In context he noted that on 28 th February this year, the Court of Appeal gave judgment in R (Williams) v SSHD [2017] EWCA Civ 98. He noted that the Court of Appeal had made it clear that SSHD can specify an amount over the administrative costs of dealing with an application and the imposition of a requirement to pay the full specified fee before consideration is lawful unless it would result in a breach of Convention obligations, which did not arise in this case.
Application for permission was renewed on behalf of VF, and on 15 th June 2017 His Honour Curran QC, sitting as a judge of this court, granted permission to apply for judicial review. The arguments, put forward by Miss Weston to show arguable cases, included arguments that SSHD was under duties under s.55 of the Borders, Citizenship and Immigration Act 2009 to have due regard to the welfare of children when exercising functions such as under (2)(a) any function of the Secretary of State in relation to nationality.
A further argument put forward in seeking permission to appeal was that:
“Specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act” ( R v SS for Social Security ex p JCWI [1977] WLR 275 at 290.)
Thus, that has been an argument that constitutionally application by VS for her right to citizenship could not be cut down through later Acts and subordinate legislation under them by, in the short term, fees which she could not pay.
This court has long recognised the principle that, as a matter of discretion, it should not permit claims for judicial review to proceed if the matter is academic. In R v SSHD ex p Adan [2001] 2 AC 477 at 486 A-F, Lord Woolf MR, cited what had been said by Lord Slynn in the House of Lords in R v SSHD ex p Salem [1999] 1 AC 450 456 7 where he said:
“My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties [to it]…
The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”
In the Adan case, Lord Woolf continued to refer to the information before the court for appeal that there were a large of cases raising similar issues to those that were involved in that case, which I understand was dealing with questions of safe third countries. The matter went to the House of Lords but those points of the Master of the Rolls were not qualified. In the Williams case to which reference was made by Mr Lewis QC in initially refusing permission on paper in this case, the claimant who obtained permission was a child who was also raising issues about his inability to pay fees to obtain his citizenship and whether SSHD could lawfully require a payment of the mandatory fee.
His claim was dismissed by Hickinbottom J, as he then was. On appeal, a first issue for the Court of Appeal did relate to whether his claim was academic because the relevant claimant had by then obtained citizenship. Davis LJ on 30 th January 2017 [2017] EWCA Civ 64 at para.6 cited Salem. He noted that the general principle is that the Court of Appeal would not entertain appeals which are academic as between the parties. He considered that if the academic appeal was to be proceeded in the Williams case it had to be justified on the grounds of some wider practical benefit or public interest. He noted that Hickinbottom J in the court below had described the point arising in that case, which I emphasise related to mandatory fees for citizenship, as “important” and that it could have an impact respectively on a large number of other individuals in the position of the particular appellant.
At para.11 Davis LJ referred to evidence that there were a significant number of children in the like position to the applicant in Williams. He considered at para.12 that it was critical to assess whether or not the subsequent changes in the law, that is to say subsequent to the law applicable at the time the decision in the relevant case, had an impact on the point arising for decision. There had been, at that stage, updated renewed Immigration Act regulations, but SSHD was saying that did not change the position as it was before Hickinbottom J. He noted that the prospective appeal was shortly to be heard. At para.15 he observed:
“I have overall found this matter one which is quite close to the line. It is important that the Court of Appeal should not entertain academic appeals without good reason… But it does seem to me that there potentially would be a wider practical benefit and there would potentially be an advantage to the public interest if this point was decided by the Court of Appeal. Moreover, the issue does not only prospectively affect prospective litigants in the like position as the applicant but also, for the reasons discussed in argument, may well have a practical effect on, as it were, the ground.”
On balance he was for permitting the appeal to go ahead on a substantive basis, and Underhill LJ agreed.
The decision of the Court of Appeal of Davis, Underhill, Macur LLJ, is reported at [2017] 1 WLR 3283. On the true construction of the then, as it were, fee scheme, which was then contained in s.51 of the Immigration, Asylum and Nationality Act 2006, and Art.3 of The Immigration and Nationality (Fees) Order 2011, the Court of Appeal found that an application to be registered as a British citizen under s.1(4) of the 1981 Act which was submitted without the required fee, was not validly made. As further appears from the headnote, it found that...
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