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

A statutory entitlement to apply for registration as a British citizen remains subject to a prescribed fee, and a first-instance judge cannot displace binding Court of Appeal authority merely because later authority may affect part of its reasoning. However, the Secretary of State must comply with section 55 of the Borders, Citizenship and Immigration Act 2009 when setting nationality fees. That requires identification and reasonably accurate characterisation of children’s best interests, treatment of those interests as a primary consideration, and consideration of countervailing public interests. Parliamentary debate may form part of the evidence, but cannot substitute for the Secretary of State’s own compliant decision-making. A breach of that procedural duty does not automatically require quashing; declaratory relief may be sufficient.

The claimants challenged the Immigration and Nationality (Fees) Regulations 2018, which required children seeking registration as British citizens to pay a fee of £1,012, including an element exceeding administrative cost. The challenges concerned statutory vires, the duty under section 55 of the Borders, Citizenship and Immigration Act 2009, the public sector equality duty, Tameside principles and Convention rights.

The vires challenge relied on the statutory entitlements in the British Nationality Act 1981 and argued that the fee made registration practically unavailable. The section 55 challenge alleged that the Secretary of State had failed properly to consider children’s best interests when setting the fee. The Secretary of State conceded a separate Article 8 and Article 14 issue affecting one claimant.

1. Ground 1 dismissed. The statutory scheme requires an application and payment of the prescribed fee. The reasoning of Williams remained binding insofar as it held that the statutory language and the principle of legality did not invalidate the fee scheme. The later decision in UNISON replaced an impossibility-based analysis with an affordability analysis, but did not sufficiently destroy the first and essential limb of Williams for a High Court judge to cease following it.
2. The fee was unaffordable for a significant number of children in practical terms. That conclusion did not itself determine the vires issue because the binding statutory analysis in Williams remained applicable. The international obligation reflected in paragraph 3 of Schedule 2 to the British Nationality Act 1981 did not create a free-standing, directly enforceable right outside the statutory scheme.
3. Ground 2 succeeded. The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 applies to the making of subordinate legislation concerning nationality fees. It has a procedural character: the Secretary of State must have regard to children’s best interests as a primary consideration, while retaining a broad merits judgment as to the weight given to countervailing public interests.
4. The decision-maker had to identify the interests of children seeking registration, characterise those interests with reasonable accuracy, recognise the practical impact of the fee, and explain how those interests were weighed against matters such as self-financing policy and the availability of immigration leave. The evidence showed no adequate assessment of those matters. Parliamentary debates added to the evidential picture but did not cure the absence of compliant consideration by the Secretary of State.
5. The public sector equality duty did not apply on the pleaded basis because impecuniosity was not a protected characteristic. If it had applied, the same reasoning would have established a breach. The separate issue concerning section 50(9A) of the British Nationality Act 1981 did not justify compelling registration or fee waiver in these proceedings.
6. The court declined to quash the Regulations. It was not highly likely that the outcome would have been substantially the same without the procedural breach, but declaratory relief was sufficient. The Secretary of State was declared to have breached section 55 when the Regulations were made.

Not an appeal. The judgment records the earlier decision of the Court of Appeal in Williams, which the court treated as binding on the vires issue.