The Court of Appeal has held that the SSHD failed to consider the best interests of children under section 55 of the Borders, Citizenship and Immigration Act 2009 while setting the fee for applications to register a child as British citizen at a significantly higher level than the actual administrative cost of processing applications of this nature. Furthermore, David Richards, Singh and Nicola Davies LJJ held that the SSHD could not rely on the contents of Parliamentary debates so as to show compliance with her section 55 duty and such use of Parliamentary material would breach article 9 of the Bill of Rights of 1688 and Parliamentary privilege. Written submissions were received by the court on behalf of the Speaker of the House of Commons and, on behalf of the House of Lords, the Clerk of the Parliaments and the substantive issues concerned the lawfulness of the fee charged to children applying to be registered as British citizens under the British Nationality Act 1981. Under the the Immigration and Nationality (Fees) Regulations 2018, delegated legislation made under the Immigration Act 2014, the fee payable on an application by a child has been fixed since 6 April 2018 at £1,012. The administrative cost of processing an application is £372. Yet the fee is fixed at a level which is designed to produce a rapacious profit of over £640, to be applied in subsidising other parts of the nationality, immigration and asylum system.
No waivers, reductions or exemptions applied in registration cases and the evidence was clear that for a substantial number of children the prescribed fee was unaffordable. The Project for the Registration of Children as British Citizens (“PRCBC”), a charity which supports children to establish their rights to British citizenship, and “O”, a child whose family was in receipt of benefits and assistance for destitution but who was entitled to registration and only had the administrative cost of processing the application (i.e. £372), challenged the SSHD’s refusal to decide O’s application unless the full fee £1,012 was paid. Jay J decided the judicial review claim against the SSHD on the section 55 ground but he nevertheless held that the claim failed on the vires ground. He found no evidence that the government had identified the best interests of children seeking registration, characterised those interests properly and identified that the level of fee created practical difficulties for many. The SSHD appealed Jay J’s decision, see here, that the £1,012 fee for children applying for registration of British citizenship was unlawful. PRCBC and O cross-appealed his decision that the 2018 fees Regulations were not ultra vires as they had submitted that the level of the fee is incompatible with the statutory scheme under the 1981 Act in that it rendered nugatory entitlements to register (sections 1, 3(2) and para 3 of Schedule 2), and was not authorised by the vires-creating power conferred by section 68 of the 2014 Act.
The Court of Appeal
The court first tackled the question of whether the regulations were ultra vires. It noted that in Williams v SSHD  EWCA Civ 98 it had decided that the fees charged for registration applications were part of the statutory scheme creating those rights and part of its intent.
In Williams, Davis LJ directly addressed the argument, and rejected it, that the 2018 Regulations might make it impossible for applicants to succeed in their applications for citizenship by fixing fees at a level that some applicants could not pay. The court also rejected the submission that the entitlement to apply for registration as a British citizen created by the 1981 Act constituted fundamental or constitutional rights, akin to the right of access to justice at the heart of the Supreme Court’s judgment in R (UNISON) v Lord Chancellor  UKSC 51. David Richards LJ refused to accept the argument that an important right conferred by primary legislation could not lawfully be reduced by the use of delegated legislation, in this case by fixing a fee at a level that was not affordable to many applicants, without express authority in clear terms set out in primary legislation. Instead his Lordship held:
57. … that Williams remains binding on this court, such that the claimants’ challenge to the vires of the 2017 and 2018 Fees Regulations must be dismissed.
Reliance placed in the judgment in R v Secretary of State for Social Security, ex parte JCWI  1 WLR 275 did not alter the result.
Next, the court considered the question whether the SSHD could rely on the content of debates in both Houses of Parliament. The SSHD had filed a witness statement by one Mr Richard Bartholomew – the head of the Fees and Income Planning Team in the Financial Planning Unit of the Home Office – designed to demonstrate that the duty under section 55 of the 2009 Act was performed, but it failed to do so. The SSHD was relying on the debates in an attempt to fill the evidential gap left by that failure.
It was clear to the court that the SSHD in her skeleton argument proposed to rely on the Parliamentary debates, as she had before Jay J, to establish that she had weighed the best interests of children but concluded they were outweighed by other factors in fixing the fees for applications by children. The question arose whether such reference and reliance was permitted under article 9 of the Bill of Rights and was compatible with Parliamentary privilege. The SSHD said that such use of the Parliamentary debates was permissible and the claimants submitted that it was not.
Upon the court’s invitation, the Speaker of the House of Commons and the Clerk of the Parliaments in the House of Lords intervened and made such submissions as they saw fit on this issue. In a joint submission on their behalf, they said that use of the materials did not fall within any of the exceptions previously identified by the courts to the application of article 9. After citing a passage in R (Heathrow Hub) v Secretary of State for Transport  EWCA Civ 13 at  which set out the Speaker’s submission in that case as to the permitted uses of Parliamentary material established by the authorities, they submitted that “those exceptions do not allow for the possibility of extensive use of Parliamentary material that is in dispute between the parties, as here”. Overall, the court was not permitted to have regard to the Parliamentary materials relied on by the SSHD.
As for whether the SSHD had complied with the section 55 duty when fixing the level of the fee, the Supreme Court had considered the said duty in ZH (Tanzania) v SSHD  UKSC 4,  2 AC 166, Zoumbas v SSHD  UKSC 74 and R (MM (Lebanon)) v SSHD  UKSC 10 and section 55 was enacted to give effect in domestic law to the UK’s international obligations under article 3(1) of the UNCRC. Indeed, it was settled law that the section 55 duty was binding on the SSHD and it applies not only to the making of decisions in individual cases but also to the function of making subordinate legislation and rules (such as the Immigration Rules) and giving guidance.
The fact that subordinate legislation or rules are subject to the affirmative vote of either or both Houses of Parliament does not qualify the SSHD’s statutory duty under section 55. The best interests of the child are a primary consideration, not the primary consideration, still less the paramount consideration or a trump card. However this does mean that no other consideration is inherently more significant than the best interests of the child and the question to be addressed, if the best interests point to one conclusion, is whether the force of other considerations outweigh it. Overall, the SSHD must identify and consider the best interests of the child or, in a case such as the present, of children more generally and must weigh those interests against countervailing considerations. With all this in mind, David Richards LJ held that:
109. The Secretary of State was not therefore permitted, either before the judge or before us, to rely on the Parliamentary materials nor was the court permitted to have regard to them.
110. I would only add that it was surprising that the Secretary of State had not conducted the review necessary for the performance of her duty under section 55 outside Parliament. If she had done so, she would have been able to give evidence of it in a witness statement, and the issue of Article 9 and Parliamentary privilege would not have arisen. I would echo what was said by Lord Carnwarth in R (SG (previously JS) v Secretary of State for Work and Pensions  UKSC 16 at , in a passage also cited by the judge: “In considering how the Government approached that task, rather than trawling through the parliamentary debates, we are entitled to rely on the evidence given in these proceedings on behalf of the Secretary of State.”
The SSHD’s case was mounted almost exclusively on the Parliamentary material which could not be taken into account. Had she taken the proper course she would have been able to give evidence of it in a witness statement. Jay J had been right to declare that the the fees of £973 previously fixed by the Immigration and Nationality (Fees) Regulations 2017 and the £1,012 fee under the 2018 Regulations were unlawful.
Overall, it followed that the SSHD’s appeal, against the finding that she had made the fees Regulations in breach of her duty under section 55, had to be dismissed. Furthermore, the cross-appeal was also dismissed against the decision that those Regulations were not ultra vires.
The £1,012 fee is outrageously high. The SSHD said she “acknowledges the court’s ruling and will review child registration fees in due course.” However, useful, swift and decisive corrective action after being defeated in court is not one of the government’s big strengths and it remains to be seen whether Priti Patel will quickly ensure that high cost is removed as a barrier in cases where children born or raised in the UK are denied British citizenship because they are from a poor and unprivileged background.
The Court of Appeal granted PRCBC and O permission to appeal to the Supreme Court on their ground that the fee is unlawful because it cuts down important statutory rights. It rejected this argument on the basis that it was bound by its previous decision in Williams but it was the view of Singh LJ that “if the matter were free from authority” his Lordship “would see considerable force” in the arguments made in aid of the vires issue. Therefore, since the SSHD is capitalising on these registration fees in quite an immoral way, we can only hope that the Supreme Court will overrule Williams so that justice can be done.