R (on the application of O (a minor, by her litigation friend AO)) v Secretary of State for the Home Department

Where subordinate legislation made under a later Act affects rights conferred by an earlier Act, its validity depends on the proper interpretation of the later enabling power. The principle of legality gives special protection to fundamental or constitutional rights, but it does not apply to every statutory entitlement. Registration as a British citizen under section 1(4) of the British Nationality Act 1981 is conditional upon a valid application and payment of the prescribed fee. The Immigration Act 2014 authorised fees exceeding administrative cost, including fees contributing to other immigration and nationality functions. It imposed no affordability criterion and left fee waivers to the Secretary of State’s discretion. The prescribed child registration fee was therefore within the statutory power.

O was born in the United Kingdom and, after living there for her first ten years, became entitled to apply for registration as a British citizen under section 1(4) of the British Nationality Act 1981. Her mother could not afford the prescribed child registration fee, so the Secretary of State declined to process her application. O and the Project for the Registration of Children as British Citizens challenged the fees fixed by the 2017 and 2018 Fees Regulations.

The High Court, [2019] EWHC 3536 (Admin); [2020] 1 WLR 1486, found a breach of the child-welfare duty but rejected the ultra vires challenge. The Court of Appeal, [2021] EWCA Civ 193; [2021] 1 WLR 3049, upheld that result. The sole issue before the Supreme Court was whether the Immigration Act 2014 authorised a fee which many children could not afford and which consequently delayed their acquisition of citizenship.

1. Appeal dismissed unanimously. Lord Hodge gave the judgment of the majority, with which Lord Briggs, Lord Stephens and Lady Rose agreed. Lady Arden agreed with Lord Hodge and added observations about pre-legislative material.

2. The validity of the fee was a question of statutory interpretation. Courts ascertain the objective meaning of Parliament’s words in their statutory context. External aids have a secondary role and cannot displace clear statutory language which produces no absurdity. Parliamentary statements were inadmissible because the conditions in Pepper v Hart [1993] AC 593 were not satisfied.

3. The special principle of legality did not apply. The appeal concerned neither a fundamental common law right nor a statutory declaration of such a right. The access-to-justice reasoning in R (UNISON) v Lord Chancellor (Nos 1 and 2) [2017] UKSC 51 was therefore distinguishable. The rule associated with R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 was an interpretive assumption that Parliament does not ordinarily authorise subordinate legislation to remove rights conferred by another Act. It was not an independent limit once the later Act, expressly or by necessary implication, conferred that power.

4. Registration under section 1(4) of the British Nationality Act 1981 was conditional upon an application accompanied by the prescribed fee. Payment was part of the statutory scheme, not an ancillary sanction. The Immigration Act 2014 imposed no affordability criterion. It expressly permitted fees to exceed processing costs, allowed account to be taken of the benefits of citizenship and the costs of other immigration and nationality functions, and made exceptions or waivers discretionary. Parliamentary control was supplied through maximum fees and the affirmative and negative resolution procedures.

5. The 2017 and 2018 Fees Regulations were therefore authorised. Whether children should pay an unaffordable fee was a question of policy for political determination, not a question for the courts. The majority approved the reasoning in R (Williams) v Secretary of State for the Home Department [2017] EWCA Civ 98.

6. The court declined to entertain Amnesty International UK’s new arguments concerning the Convention on the Reduction of Statelessness because they had not been raised below and fell outside the appeal. Lord Hodge added that the United Kingdom’s dualist approach would prevent an international obligation, without domestic incorporation, from invalidating primary legislation.

7. Lady Arden observed that official pre-legislative material may reveal a previously unapparent ambiguity and, in an appropriate case, influence the meaning attributed to statutory words. The ultimate task nevertheless remains to determine the meaning of Parliament’s enacted language.

• United Kingdom Supreme Court: The appeal was dismissed unanimously. The Court of Appeal’s rejection of the ultra vires challenge was upheld: [2022] UKSC 3.
• Court of Appeal: The court dismissed the Secretary of State’s appeal concerning section 55 of the Borders, Citizenship and Immigration Act 2009, dismissed the claimants’ cross-appeal on relief, and rejected the ultra vires challenge: [2021] EWCA Civ 193; [2021] 1 WLR 3049.
• High Court: Jay J declared that the Secretary of State had breached section 55 when setting the fees, but declined to quash the Regulations and dismissed the ultra vires ground as bound by R (Williams) v Secretary of State for the Home Department: [2019] EWHC 3536 (Admin); [2020] 1 WLR 1486.