British Citizenship Appeal Update
Supreme Court dismisses challenge to the level at which the government has set fees for children to register as British Citizens
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. Therefore, 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.
BACKGROUND TO THE APPEAL
This appeal concerns whether subordinate legislation was ultra vires because it set the fee at which a child or young person could apply to be registered as a British citizen at a level which many young applicants have found to be unaffordable
The first 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”). O applied to be registered as a British citizen on 15 December 2017 but was unable to afford the full amount of the fee, which was £973 at that time.
It was not disputed that many children and their families cannot afford the fee charged where an applicant is a child [20]. Because the full fee was not paid, the Secretary of State refused to process O’s application.
The Supreme Court unanimously dismissed the appeal. Lord Hodge gave the lead judgment, with whom Lord Briggs, Lord Stephens and Lady Rose agree. Lady Arden gave a concurring judgment.
The reasons for the judgement in summary are that the fees are set by parliament and not by the Secretary of State. Lord Hodge concludes that, in the 2014 Act, Parliament authorised the subordinate legislation by which the Secretary of State has fixed the relevant application fee . The appropriateness of imposing the fee on children is a question of policy which is for political determination, and not a matter for the court. The appeal is therefore dismissed.
This decision comes as no surprise given the upcoming Borders Bill which is saying that you can be deprived of citizenship without telling you. The conclusion that there is no fundamental right to citizenship.
The original finding that was made 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 has not changed , 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 extremely high level that children will not be able to British Citizens because their parents cannot afford to pay the fees.
The consequences of this decision have very serious consequences for children born in the UK to parents with no leave to remain or limited leave to remain. One example that we can give is for a 15 year old boy born when his parents were failed asylum seekers . He has limited leave to remain but cannot get his National passport. His parents cannot afford to pay the fees for registration as a British Citizen. He is an excellent football player who has the talent and skill to play for teams in the Premiership. He has not been able to take any of the offers made to him because he does not have a travel document. The impact on his mental health and even his aspirations has been affected by the inability of his parents to pay for his Registration as a British Citizen.
