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)

The appeals concerned the lawfulness of the child registration fee for British citizenship and whether the Secretary of State complied with the statutory child welfare duty in fixing that fee. Two issues were determinative: (i) whether the fee level was ultra vires the fee-setting power in section 68 of the Immigration Act 2014 because it rendered the statutory entitlement to registration nugatory; and (ii) whether the Secretary of State breached section 55 of the Borders, Citizenship and Immigration Act 2009 by failing to have regard to the need to safeguard and promote the welfare of children.

The court held that the vires challenge failed because this court was bound by R (Williams) v SSHD [2017] EWCA Civ 98: the requirement to pay a prescribed fee is part of the statutory scheme and Parliament authorised the imposition of fees that may exceed administrative cost. The court therefore dismissed the challenge that the 2017 and 2018 Fees Regulations were ultra vires.

The court upheld Jay J's conclusion that the Secretary of State breached the duty in section 55. The evidence did not show that the Secretary of State had identified and characterised the best interests of children and balanced them against countervailing public interest factors. The Secretary of State’s reliance on Parliamentary debates to demonstrate compliance was impermissible under Article 9 of the Bill of Rights and parliamentary privilege. The court dismissed the Secretary of State’s appeal against the declarations of breach but declined to quash the Regulations, granting declaratory relief instead.

Background and parties. These are consolidated appeals from Jay J (reported at [2020] 1 WLR 1486) by the Secretary of State against declarations that the Secretary of State breached section 55 of the Borders, Citizenship and Immigration Act 2009 when fixing the child registration fees in the Immigration and Nationality (Fees) Regulations 2017 and 2018. The claimants were the Project for the Registration of Children as British Citizens (a charity) and a child (O). The fee for a child registration application had been fixed at £1,012 from 6 April 2018; the Home Office said administrative cost was £372 and the excess subsidised other immigration/nationality functions.

Nature of the challenge and relief sought. The claimants sought judicial review relief: (i) a declaration and/or quashing of the 2017 and 2018 Fees Regulations as ultra vires under the fee-setting power (section 68 Immigration Act 2014) because the fee rendered the statutory right to registration in practice nugatory; and (ii) a declaration that the Secretary of State breached the statutory duty in section 55 by failing to have regard to the welfare and best interests of children when setting the fee.

Procedural history. The case came on appeal from the Administrative Court (Jay J [2019] EWHC 3536 (Admin)). Jay J had rejected the vires challenge (certifying for possible leapfrog) but found a breach of section 55 and made declarations. The Court of Appeal heard the appeals and, because of reliance on Parliamentary debates in the evidence, invited the Speaker of the House of Commons and the Clerk of the Parliaments to intervene on Article 9/parliamentary privilege issues; they did so in writing.

Issues framed by the court. The court framed: (1) whether the fee-setting power in section 68 authorised fees that, by their level, rendered the registration right nugatory for many (the vires issue), and whether Williams remained binding after Unison; and (2) whether the Secretary of State complied with section 55 by identifying and weighing the best interests of children, and whether reliance on Parliamentary debates was permissible evidence of compliance.

Court’s reasoning and resolution. On vires, the court concluded Williams is binding: payment of the prescribed fee is a condition integral to the statutory scheme, and Parliament authorised fees that may exceed administrative costs under the statutory framework (including section 68(9)). Unison (R (UNISON) v Lord Chancellor [2017] UKSC 51) on the right of access to justice did not displace Williams’ ratio in this context. The vires challenge to the 2017 and 2018 Regulations therefore failed.

On section 55, the court endorsed Jay J’s approach that the Secretary of State must identify the best interests of children, treat them as a primary consideration, and weigh them against other considerations. The Home Office evidence (a witness statement from a senior official) did not demonstrate that exercise had been performed. The Secretary of State chiefly relied on Parliamentary debates to fill the evidential gap. The court held that extensive reliance on debates to prove that the statutory duty had been performed was impermissible: Article 9 and parliamentary privilege prohibit the court from evaluating the adequacy of ministerial explanations in Parliament and from using Parliamentary proceedings in that way. The Parliamentary authorities intervened to emphasise these limits. Because the evidence outside Parliament did not show compliance, the court dismissed the Secretary of State’s appeal against the declarations that she breached section 55. The court declined to quash the Regulations, deciding declaratory relief was appropriate and in the exercise of discretion declined a quashing order.

Wider context. The court noted the intrinsic importance of citizenship and acknowledged the serious practical effect of current fees on many children. It emphasised the narrow circumstances in which Parliamentary material may be used in court and the constitutional constraints imposed by Article 9.

The Secretary of State's appeal was dismissed in relation to the finding that she breached her duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The Court of Appeal affirmed that the vires challenge to the 2017 and 2018 Fees Regulations failed because R (Williams) v SSHD [2017] EWCA Civ 98 remains binding: Parliament authorised the imposition of fees (under section 68 Immigration Act 2014) that may exceed administrative cost as part of the statutory scheme. The Secretary of State breached section 55 because she failed to identify, characterise and weigh the best interests of children and could not lawfully rely on Parliamentary debates to prove compliance (Article 9/parliamentary privilege). The court granted declaratory relief of breach but declined to quash the Regulations.

Appeal from the Administrative Court (Jay J) [2019] EWHC 3536 (Admin); decision reported at [2020] 1 WLR 1486. The Court of Appeal considered earlier authorities including R (Williams) v SSHD [2017] EWCA Civ 98 and R (UNISON) v Lord Chancellor [2017] UKSC 51 in resolving the issues on appeal.