The Supreme Court has dismissed a challenge to the level at which the government has set the fees for children to register as British citizens. The court held that the government has been authorised by Parliament to set the level of the fees as it chooses. Currently, the fee is £1,012 for a child, which is simply unaffordable for many families. As a consequence, many children eligible for British citizenship because of their birth or residence never actually become citizens.

The case is R (O (a minor)) v Secretary of State for the Home Department [2022] UKSC 3, although it has often been referred to as “the PRCBC case” after the Project for the Registration of Children as British Citizens, which has led the work on it.

The main judgment was delivered by Lord Hodge. Lady Arden gave a separate but concurring judgment.

The facts

There were two claimants. First, there was a child, O, who was eligible for British citizenship because she had lived in the UK for ten years but whose mother could not afford the fee. Her mother was a single parent in receipt of welfare benefits. There is simply no way that a person in that position can save enough money to afford a fee of over £1,000 in order to register their child as a citizen.

Second, there was PRCBC, a small charity that has done brilliant work both highlighting the problem of children missing out on citizenship and also working to assist them case by case itself and by educating and training others. There was also an intervener, Amnesty International.

There was no dispute in the case that “for many young people and their families the current level of fees is unaffordable” (paragraph 5).

There was also no dispute that British citizenship is very important:

There is no dispute as to the importance to an individual of the possession of British citizenship. It gives a right of abode in the UK which is not subject to the qualifications that apply to a non-citizen, including even someone who has indefinite leave to remain. It gives a right to acquire a British passport and thereby a right to come and go without let or hindrance. It can contribute to one’s sense of identity and belonging, assisting people, and not least young people in their sensitive teenage years, to feel part of the wider community. It allows a person to participate in the political life of the local community and the country at large. As the Secretary of State has stated in a guidance document, “Becoming a British citizen is a significant life event. Apart from allowing you to apply for a British Citizen passport, British citizenship gives you the opportunity to participate more fully in the life of your local community”.

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This is a useful statement of the importance of citizenship. As an aside, it is also an inadvertent reminder of the largely hollow nature of British nationality law. What few rights citizens do have are not uniquely held (they are shared with other groups) and are conferred by other pieces of legislation: immigration rights are conferred by immigration laws, the right to vote is conferred by electoral law and so on. That is not to suggest that citizenship is not important; rather that it should be more important than it already is.

The law

The British Nationality Act 1981 has always allowed the government to charge a fee for registering as a British citizen. Originally, the fee could only be set at a level to recover the direct cost of processing the application, which was originally £35.

Subsequent legislation enabled higher and higher fees to be charged in order “to reflect the benefits that the Secretary of State believed were likely to accrue to the person” (from 2004) and then to cross-subsidise other aspects of the costs of the immigration system (from 2007). The level at which the fee was set then rose dramatically. Today, the fee to register a child as a British citizen is £1,012, as against an estimated processing cost of £372.

The full, exhaustive list of factors to which the Home Secretary may have regard in setting the level of the fees is now set out in section 68(9) of the Immigration Act 2014:

(a) the costs of exercising the function;
(b) benefits that the Secretary of State thinks are likely to accrue to any person in connection with the exercise of the function;
(c) the costs of exercising any other function in connection with immigration or nationality;
(d) the promotion of economic growth;
(e) fees charged by or on behalf of governments of
other countries in respect of comparable functions;
(f) any international agreement.

As Lord Hodge says at paragraph 17, “Parliament has empowered the Secretary of State to set the fees for applications to obtain British citizenship at a level in excess of the cost of processing the relevant application”. The Home Office case was essentially that this was a complete answer to the legal challenge.

The case for the child O and PRCBC was that the regulations specifying the precise level of the fee were unlawful because the fee was so high it “rendered nugatory the underlying statutory right to become a British citizen” (paragraph 20).

The claimants conceded that access to citizenship is not a common law right which has been recognised as fundamental or constitutional and no recognised human rights were engaged (paragraph 33). This distinguished the case from the UNISON case, in which the Supreme Court held that the fees charged for access to a court (the employment tribunal in that instance) were so high as to be unconstitutional.

Normally, one would think that access to citizenship was a bedrock constitutional right. If the composition or ‘constitution’ of the body politic is not literally a constitutional matter, what is? The acquisition of British subject status by means of ligeance arguably used to be a constitutional right and is even touched upon in Magna Carta. But common law acquisition of British nationality was abolished in 1948. That is not now the British way, apparently. The reasons for the concession are not explored or explained in the judgment but the three legal teams for the child, PRCBC and Amnesty were all very high level indeed.

The judgment

Based on the concession by the claimants, the court characterised citizenship as a statutory right. The claimants argued that a statutory instrument made by a minister could not conflict with or nullify a right granted by statute.

The court rejected that argument, pointing to the explicit statutory authorisation to charge fees at a level chosen by the Home Secretary in the British Nationality Act 1981 itself and the Immigration Act 2014. Lord Hodge concluded:

The appropriateness of imposing the fee on children who apply for British citizenship under section 1(4) of the 1981 Act is a question of policy which is for political determination. It is not a matter for judges for whom the question is the much narrower one of whether Parliament has authorised the Secretary of State to set the impugned fee at the level which it has been set.

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Lord Hodge finished his judgment by pointedly thanking the legal teams for the appellants and the Home Office, then criticising the attempt by Amnesty International to raise various new arguments. Intervening can be, quite literally, a thankless task.

The judgments of both Lord Hodge and Lady Arden go into some depth about the proper approach to statutory interpretation and reliance on extrinsic material as an aide to interpretation. This is no doubt of considerable interest in general terms but it is not particularly relevant to a Free Movement write-up.

Briefly, Lord Hodge opines that external aids cannot “displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity” (paragraph 30). Lady Arden goes less far, conceding that pre-legislative material like White Papers and Law Commission reports might influence the meaning of a statute (paragraph 64). She goes on to say that

it is realistic also to recognise that pre-legislative material, where available, may inform the court about an ambiguity which was not apparent simply on the face of the words, the mischief to which the legislation was directed and the purpose of the provision, and may in an appropriate case influence the meaning of the statutory provision.

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Comment

In the context of the narrow approach to statutory interpretation consistently adopted by the current Supreme Court, the outcome of this challenge is not, sadly, a surprise. The court chose to interpret the question before it in narrow terms. The concession, which may well have been inevitable, that citizenship is not a constitutional right probably doomed the case to failure in the current climate.

Nevertheless, the original finding by Mr Justice Jay in the High Court that the Home Secretary had in setting the fees at the current level failed to consider the statutory duty to have regard to the best interests of children is undisturbed, not having been appealed to the Supreme Court. We can hope that the Home Secretary will think again about setting these fees at such an absurdly high level that children are priced out of becoming British citizens.