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    British citizenship for minor children – the case of Child O and the Bill of Rights 1689

    It’s probably fair to say that for UK residents, as British immigration law becomes more complicated, having or getting British citizenship becomes increasingly valuable. After all, it’s a lot easier (and cheaper) to renew your passport when compared to renewing your leave to remain in the UK – to say nothing of the benefit of consular protection abroad and state benefits at home which are available to British citizens but denied to those holding time-limited leave to remain. That said, however, it is still the case that getting British citizenship can be an expensive business, and that’s at the heart of this case review, which investigates a recent Court of Appeal decision, R (Project for the Registration of Children as British Citizens and O) v SSHD [2021] EWCA Civ. 193.

    In particular, it can be very expensive if your child is entitled to British citizenship but needs to register to receive it, which is a very distinct and separate concept to naturalising as British when already an adult. Let’s investigate that difference before we discuss the detail of the Court of Appeal’s decision in Child O’s case and her challenge to the prohibitively expensive fees the Home Office are nowadays (over)charging for children who wish to register by entitlement to British citizenship.

    For the record now though, and at the date of writing, registration alone – the child still must apply for a passport afterwards in a completely separate application for £49 extra – is an eye-watering £1012. It’s only fair to point out now that the Home Office’s ability to charge a fee for applications is constrained by delegated legislation, but, rather surprisingly, this allows the fee to be set above the simple costs of administrating the machinery to process and approve the applications, the surplus to be set against the costs of running other parts of the Home Office’s nationality and immigration functions.

    Child O’s application, made in 2017 (when the fee was £973) would, it was said, have only cost £386 to process. Since 1983, the fee has risen from £35 to £1012.

    But – back to the difference between naturalisation and registration, for short while.

    Though British nationality law is famously complex in some ways – a legacy of Empire in part – naturalisation is a straightforward concept to many, and indeed most (though not all) countries in the world provide the acquisition of citizenship by foreign residents, assuming good behaviour and a fairly long period of lawful residence before application.

    The UK is no exception, and for most foreign citizens who come to the UK as adults – for example, as the spouse of a British citizen – there is well trodden path of 5-10 years’ residence with time-limited leave, followed by a period of residence with so-called indefinite leave to remain (“ILR” which is not time limited at all and often referred to as being settled in the UK) before an application for British citizenship can be made.

    For some people, however, the acquisition of indefinite leave to remain – often called “settlement” – is as far as they want to take things, perhaps because their country of birth doesn’t permit or look favourably on dual citizenship. But what about their children?

    It’s widely accepted that when a child is growing up, being a citizen of the country in which they are being raised in is an important part of a stable and secure environment, and a critical part of the development of the child’s social identity. It’s certainly true that the UK courts have agreed with this broad thesis, and they have often emphasised citizenship as being of considerable significance to children and adults alike – see, for example, the speeches of Hale PSC in R (Johnson) v SSHD[1] and ZH (Tanzania)[2].

    It should therefore come as no surprise to the reader that UK law, in the form of the British Nationality Act 1981, provides for children born in the UK to be registered as British even if their parents are not – though of course in most cases, being born to a British citizen parent in the UK is the route by which a child ends up as a British citizen.

    There are 4 routes within the British Nationality Act 1981 which entitle a child born in the UK to be entitled to be registered as a British citizen, despite the fact their parents were not British (or settled) in the date on which they were born:

    1. After the child’s birth, one parent gets ILR (becomes settled).
    2. After the child’s birth, if one parent joins the British Armed Forces.
    3. After the child’s birth, the child resides in the UK for 10 years, irrespective of either parents’ immigration status in the UK.
    4. If the child is (and always has been) stateless and is less than 22 years old on application and has 5 years’ residence in the UK.

    Child O fell into number 3 – she was born in the UK in 2007, attended school here, has never left the UK since her birth, and acquired the necessary 10 years residence in 2017, when she made her application. Her mother is a single parent of 2 other children, and she simply couldn’t afford the full fee, though she was able to raise £386, representing the actual cost her child’s application. Nevertheless, O’s application was rejected as the full fee was not provided, and thereafter she challenged the lawfulness of the fee charged by way of judicial review, with the assistance of the legal charity the Project for the Registration of Children as British Citizens.

    O argued two points, First, that the fee set by the Home Office was simply beyond the power given to them by the statutory scheme, as it was set so high as to nullify the child’s entitlement to register as British entirely, and second, it was said that in setting the fee so high, the Home Office has failed to have any regard to their duty to take into account the best interests of the child, as required under s. 55 Borders. Citizenship and Immigration Act 2009.

    The s. 55 duty point was found in O’s favour in the Administrative Court, and the Court of Appeal agreed, dismissed the Home Office’s cross-appeal and confirming that the High Court judge was entitled to find the Home Office[3] breached their duty under s. 55 when setting the fee level.

    This was hardly surprising given the fact that the Home Office’s own witness evidence on this point was so poor that they ignored it in argument before the Court of Appeal and were driven into wholly impermissible reliance on various Parliamentary material to prove they had properly considered the s. 55 duty. In fact, so much Parliamentary material was used that the Court of Appeal eventually found that its use was prohibited by Article 9 of the Bill of Rights 1689 [4], which is not something regularly found by the courts and is a measure of the disarray the Home Office found itself in attempting to demonstrate their illusory consideration of the s. 55 duty.  

    However, the arguments for and against the unlawfulness of the fees themselves were more complex and might end up being litigated in the Supreme Court, as the Court of Appeal dismissed O’s own cross-appeal against the High Court’s decision that fee scheme itself, and the level of the fee set, when applied to this type of citizenship application, was not unlawful.

    In so doing, the Court of Appeal relied upon an earlier decision on immigration application fees, Williams [5], and did not seek to apply the reasoning that the Supreme Court used in Unison, a now-famous case where the new imposition of a prohibitively expensive appeal fee in the Employment Tribunal (which had verifiably and dramatically reduced the number of appeals) was unlawful as it touched upon the fundamental right of access to the courts.

    Further, the Court of Appeal made it clear that the application fee regime in nationality applications was a creature of primary legislation and therefore even if the fee was set at entirely unaffordable level, it is not unlawful, since the bestowing of British citizenship in these circumstances (under the British Nationality Act 1981) requires an application, which in turn requires a fee, however high that fee may be. Indeed, it was made clear that as enacted, the British Nationality Act 1981 was explicit that where required, a fee must be paid for a person to be registered, and it was therefore always the case that the payment of a fee was part of the scheme of very act of granting of British citizenship by registration itself [6]

    However, and despite the s. 55 success noted above, it’s hard to escape the feeling that the job has been only half-done here– the Court of Appeal’s adherence to the Williams reasoning does beg the question, could the Home Office lawfully charge £1m per application, bearing in mind the fee scheme does allow – inter alia –  for:  (a) the promotion of economic growth and (b) the benefits the Secretary of State for the Home Department thinks (sic) are likely to accrue to a person in connection with the registration of citizenship to be considered when setting the fee?[7] This matter is sure to feature in the Supreme Court soon, since O’s case itself was sent down to the Court of Appeal from a “leap-frog” appeal to the Supreme Court (as ordered by the Administrative Court judge) with a specific injunction to consider the effect of Unison on the Williams reasoning. It’s therefore hard to escape the feeling the Supreme Court might form the view that Court of Appeal got the lawfulness of the level of the fee set just plain wrong.

    Richard Hopkin

    28 February 2021


    [1] R (Johnson) v SSHD [2016] UKSC 56

    [2] ZH (Tanzania) v SSHD [2011] UKSC 4

    [3] Strictly, the Secretary of State for the Home Department

    [4] Freedom of Speech. That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

    [5] R (Williams) v SSHD [2017] EWCA Civ. 98

    [6] S.42 BNA 1981

    [7] S. 68 (9) Immigration Act 2014

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