Project for the Registration of Children as British Citizens & Anor, R (On the Application Of) v Secretary of State for the Home Department (Rev 1)

A statutory entitlement to registration as a British citizen may lawfully be made conditional on payment of a prescribed fee where that condition forms part of the statutory scheme. A fee exceeding administrative cost is not ultra vires merely because it is unaffordable to many eligible applicants, where Parliament has authorised that fee regime.

However, under Borders, Citizenship and Immigration Act 2009, section 55, the Secretary of State must identify children’s best interests, treat them as a primary consideration, and weigh them against countervailing factors when setting nationality fees. Parliamentary debates cannot be used to prove that she performed that duty where doing so would require the court to assess ministerial explanations in Parliament, contrary to Article 9 of the Bill of Rights 1689.

The claimants challenged fees of £973 and £1,012 for a child’s application to be registered as a British citizen. The fee substantially exceeded the stated administrative cost and was unaffordable for many children entitled to registration under section 1(4) of the British Nationality Act 1981.

Jay J held that the fee regulations were not ultra vires, being bound by [2017] EWCA Civ 98, but declared that the Secretary of State had breached section 55 of the Borders, Citizenship and Immigration Act 2009 when setting the fees: [2019] EWHC 3536 (Admin). The Secretary of State appealed the declarations. The claimants cross-appealed against the rejection of the vires challenge and sought quashing relief.

The central issues were whether the fee unlawfully rendered the statutory entitlement nugatory, whether the section 55 duty had been performed, and whether parliamentary debates could establish compliance with that duty.

1. Both appeals were dismissed. The fee regulations were not ultra vires, but the declarations that the Secretary of State had breached section 55 were upheld. Declaratory relief, rather than quashing, was within the judge’s discretion.

2. The court was bound by R (Williams) v SSHD [2017] EWCA Civ 98. The statutory right to registration under section 1(4) of the British Nationality Act 1981 was created subject to a valid, fee-paid application. The requirement to pay a prescribed fee was part of the statutory purpose and scheme. The later decision in R (UNISON) v Lord Chancellor [2017] UKSC 51, concerning the constitutional right of access to justice, did not undermine that binding ratio.

3. The general principle that subordinate legislation cannot cut down statutory rights remains a question of statutory construction. It is particularly strong where the delegated power derives from separate and unconnected legislation. Where the power and right arise within the same statutory scheme, the question remains whether Parliament authorised the delegated measure. Here, it did.

4. Section 55 imposed a positive duty when setting nationality fees. The Secretary of State had to identify and characterise the best interests of affected children, treat them as a primary consideration, and weigh them against countervailing public interests. The evidence did not show that she had carried out that exercise.

5. Article 9 of the Bill of Rights 1689 prevented reliance on parliamentary debates to fill that evidential gap. The proposed use required the court to assess whether ministers’ answers in Parliament demonstrated compliance with the statutory duty. That was an impermissible examination of the adequacy of ministers’ exploration of policy options or explanations to Parliament. The Secretary of State could instead have proved an assessment undertaken outside Parliament by admissible evidence.

6. The judge was entitled to leave the regulations in force while granting declarations. It was unnecessary to determine whether section 55 imposed a duty that was procedural only.

• Court of Appeal (Civil Division): Secretary of State’s appeal and claimants’ cross-appeal dismissed: [2021] EWCA Civ 193.

• High Court, Administrative Court (Jay J): Held the fee regulations were not ultra vires, but declared that the Secretary of State had breached section 55 of the Borders, Citizenship and Immigration Act 2009 in setting the child-registration fees. The court declined to quash the regulations: [2019] EWHC 3536 (Admin); reported at [2020] 1 WLR 1486.