The Project for the Registration of Children As British Citizens & Ors, R (On the Application Of) v Secretary of State for the Home Department

This judicial review concerned the lawfulness of the level and effect of the statutory fee for registration of children as British citizens under the British Nationality Act 1981 (notably ss.1 and 3 and para 3 of Schedule 2) and the vires for setting that fee under s.68 of the Immigration Act 2014. The claim advanced multiple grounds including a vires challenge, breach of the section 55 duty to have regard to the best interests of children, and public sector equality duty complaints.

The court held that the claimant’s vires challenge (Ground 1) was defeated by the existing authority in R (Williams) v SSHD: the statutory scheme requires an application accompanied by the prescribed fee and, properly read, permits the Secretary of State to set fees above administrative cost. However the court found a breach of the section 55 duty (Ground 2): the Secretary of State had not identified, characterised or given primary consideration to the best interests of children when setting the 2018 Regulations fixing the child registration fee at £1,012. The equality claim (Ground 3) added nothing material, and the Article 8/Article 14 point in relation to s.50(9A) had been conceded by the Secretary of State following earlier authority.

Background and relief sought. The claimants (a charity and two children) sought judicial review of the Immigration and Nationality (Fees) Regulations 2018, challenging the level of the child registration fee for British citizenship and the process by which that fee was set. Relief sought included quashing of the Regulations and declarations of unlawfulness on multiple grounds: ultra vires (vires) of the fees power, breach of the section 55 duty to have regard to children’s best interests, breach of the public sector equality duty under s.149 EA 2010, breach of Article 8 (and Article 14 combined with Article 8 in respect of s.50(9A)).

Issues framed. The court explicitly framed six grounds: (1) vires (that the fee renders statutory entitlements nugatory), (2) breach of s.55 of the Borders, Citizenship and Immigration Act 2009, (3) PSED breach, (4) failure in accordance with Tameside principles, (5) Article 8, and (6) Article 8 combined with Article 14 in respect of s.50(9A). The court concentrated on Grounds 1 and 2; Ground 6 had been conceded by the defendant.

Court’s reasoning and findings.

• Ground 1 (vires): the court analysed and identified the ratio of the Court of Appeal decision in R (Williams) v SSHD and concluded that Williams remains binding for the present issue: the statutory registration scheme contemplates an application accompanied by the prescribed fee and allows the Secretary of State to set fees that may exceed administrative cost. Although the claimants relied on more recent authority (notably the Supreme Court decision in UNISON concerning affordability and access to justice), the judge found that UNISON did not sufficiently undermine the core limb of Williams to justify departing from it. Consequently the vires challenge failed.
• Ground 2 (section 55): the court held that s.55 imposes an obligation on the Secretary of State to make arrangements to ensure her immigration, asylum and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children. The evidence did not demonstrate that the Secretary of State had identified and properly characterised the best interests of children in setting the 2018 Regulations or that those interests were treated as a primary consideration and then weighed against countervailing public interest factors. Parliamentary material and the Policy Equality Statements did not cure this deficiency. The court therefore held that the Secretary of State breached s.55 when making the 2018 Regulations fixing the child registration fee at £1,012.
• Ground 3 (PSED): the court held the PSED added nothing materially new; impecuniosity is not a protected characteristic and the point did not alter the s.55 conclusion. The PSED ground was unnecessary to decide; the judge noted that, had it been engaged, he would have found a breach for similar reasons.

Remedy and disposition. The court declined to quash the Regulations but granted declaratory relief that the Secretary of State was in breach of s.55 when making the 2018 Regulations. The judge explained that a quashing order was not warranted in the exercise of discretion because he was not confident that the outcome would have been substantially different, but that a declaration was sufficient to require reconsideration unless overturned on appeal. The court declined to grant additional relief in relation to the s.50(9A) issue, noting the defendant’s ongoing consideration of remedial options under the HRA.

This is a first-instance judicial review. The claim was dismissed on the vires ground (Ground 1) but succeeded on Ground 2: the Secretary of State was in breach of the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 when making the Immigration and Nationality (Fees) Regulations 2018 setting the child registration fee at £1,012. The court granted declaratory relief for that breach but declined to make quashing orders; other statutory and Convention challenges either added nothing or were conceded/resolved outside the main decision.