R (O) v Secretary of State for the Home Department

The appeal concerned whether subordinate legislation (the Immigration and Nationality (Fees) Regulations) was ultra vires because it fixed the fee for registration as a British citizen (under section 1(4) of the British Nationality Act 1981) at a level that made the statutory entitlement illusory for many children. The central legal question was the proper scope of the Secretary of State’s fee‑making power under section 68 of the Immigration Act 2014 and whether that power permitted fixing fees above administrative cost so as to subsidise other immigration and nationality functions.

The Supreme Court held that Parliament, by the 2014 Act read as a whole, authorised the Secretary of State to set fixed fees that could exceed administrative costs and to have regard to the benefits of citizenship and to costs referable to other immigration and nationality functions (section 68(9)). Parliament provided a control mechanism by permitting specification of maximum fees in a fees order subject to affirmative resolution. There was no statutory requirement of affordability or an express prohibition on fixing fees at a level that might render exercise of the entitlement difficult.

The court distinguished earlier decisions based on constitutional or common law rights of access to justice (R (UNISON) v Lord Chancellor) because those cases relied on infringement of fundamental common law rights; by contrast section 1(4) rights to apply for registration arise under statute and the interpretive task was to ascertain the scope of the enabling power in the 2014 Act. The Court therefore concluded the fees regulations were within the Secretary of State’s powers and dismissed the appeal.

Background and facts.

• O was born in the United Kingdom in July 2007 and has lived in the UK throughout her life. From her tenth birthday she satisfied the requirements of section 1(4) of the British Nationality Act 1981 to apply for registration as a British citizen because she had not been absent from the UK for more than 90 days in each of her first ten years.
• Her single mother was in receipt of state benefits and the family were destitute; when an application was made in December 2017 the mother could not pay the full fee (then £973) and O’s application was not processed. From 6 April 2018 the child registration fee was fixed at £1,012 in the 2018 Fees Regulations.

Nature of the claim and procedural posture.

• The appellants (O and the Project for the Registration of Children as British Citizens) sought judicial review of the Fees Regulations on the ground that they were ultra vires the Secretary of State’s powers because the fixed fee for child applicants was so high as to render the statutory right to registration under section 1(4) nugatory. There was a separate section 55 Borders, Citizenship and Immigration Act 2009 challenge in the High Court which succeeded at first instance but which is not the subject of this appeal.
• The High Court (Jay J) granted declarations of breach of the section 55 duty but refused to quash the regulations and dismissed the ultra vires challenge, being bound by the Court of Appeal’s decision in R (Williams). The Court of Appeal ([2021] EWCA Civ 193) dismissed the challenge on vires grounds and granted permission to appeal to the Supreme Court on that point; this Supreme Court appeal followed.

Issues for the court.

1. Whether the Secretary of State’s power under the Immigration Act 2014 (notably section 68) authorised subordinate legislation fixing fees for registration as a British citizen at levels which could exceed administrative cost and, if so, whether that power could be exercised so as effectively to defeat the statutory entitlement in section 1(4).
2. Whether principles applied in cases protecting fundamental common‑law or statutory rights (for example R (UNISON) v Lord Chancellor and the Court of Appeal in JCWI) required a different approach to the interpretation of the fee‑making power.

Court’s reasoning.

• The court conducted a textual and contextual statutory interpretation exercise. It emphasised that the 2014 Act expressly authorises setting fees that may exceed the costs of exercising the relevant function and lists the matters to which the Secretary of State may have regard (section 68(9)), including benefits likely to accrue from the exercise of the function and costs referable to other immigration or nationality functions.
• Parliament’s mechanism for controlling fee levels was identified: the fees order sets maximum amounts subject to affirmative resolution; fees regulations must not exceed those maxima and are subject to negative resolution. The 2016 Fees Order set a maximum of £1,500 for registration and the 2018 Fees Regulations set the child fee at £1,012.
• The court distinguished UNISON and other decisions concerned with fundamental common‑law rights of access to justice; those decisions relied on constitutional protections not engaged here. The relevant question was the scope of the enabling power in the 2014 Act. The court considered JCWI and Williams but concluded the 2014 Act authorised the Secretary of State’s approach and that policy considerations (including affordability) were properly for Parliament and the executive, not the courts.
• The court rejected new arguments advanced by an intervener about incompatibility with international obligations and declined to permit fresh arguments not raised below.

Relief and outcome. The Supreme Court dismissed the appeal, concluding the fees regulations were intra vires the Secretary of State’s powers under the 2014 Act. The court observed that questions of policy and affordability were for political decision and parliamentary change rather than judicial intervention.

Appeal dismissed. The Supreme Court held that Parliament, by the Immigration Act 2014 read as a whole, authorised the Secretary of State to set fixed fees that may exceed administrative cost and to have regard to benefits of citizenship and costs of other immigration and nationality functions. There was no statutory requirement of affordability that made the 2018 Fees Regulations ultra vires; issues of policy and affordability were for Parliament and the executive.

First instance: Administrative Court (Jay J) [2019] EWHC 3536 (Admin) — declaration under section 55 granted but ultra vires challenge dismissed. Court of Appeal: [2021] EWCA Civ 193 — dismissed the vires challenge and granted permission to appeal to the Supreme Court. Supreme Court: appeal dismissed [2022] UKSC 3.