QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Priory Courts, 33 Bull Street
B e f o r e :
| THE QUEEN on the application of
RIC WILLIAMS by his father and litigation friend RICHARD WILLIAMS
|- and -
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
James Eadie QC and William Hansen (instructed by the Treasury Solicitor)
for the Defendant
Hearing date: 20 March 2015
Further written submissions: 9-17 April 2015
Crown Copyright ©
Mr Justice Hickinbottom :
i) Ground 1: The Secretary of State acted outside her powers in failing to incorporate into the statutory scheme a fee exemption for applications to register British nationality by children who are in receipt of local authority assistance because of destitution.
ii) Ground 2: In not according such an exemption to the Claimant, the Secretary of State breached her duty under article 8 of the European Convention on Human Rights ("ECHR") by failing properly to respect his family and/or private life; and/or her duty under article 14 read with article 8 by discriminating against the Claimant on the ground of his impecuniosity.
Ground 1 turns on the true construction of the statutory provisions under which the Secretary of State has decided not to include a fee exemption for destitute minors in the scheme. Ground 2 is necessarily, to an extent, fact-specific.
The Legislative Framework
The 1971 Act: The Immigration Act 1971.
The 1981 Act: The British Nationality Act 1981.
The 1989 Act: The Children Act 1989. References in this judgment to simply "section 17" are references to section 17 of the 1989 Act, unless otherwise indicated.
The 2002 Act: The Nationality, Immigration and Asylum Act 2002.
The 2004 Act: The Asylum and Immigration (Treatment of Claimants etc) Act 2004 as amended by section 20 of the UK Borders (Treatment of Claimants etc) Act 2007.
The 2006 Act: The Immigration, Asylum and Nationality Act 2006.
The 2011 Fees Order: The Immigration and Nationality (Fees) Order 2011 (SI 2011 No 445).
The 2013 Fees Regulations: The Immigration and Nationality (Fees) Regulations 2013 (SI 2013 No 749).
The 2015 Fees Order: The Immigration and Nationality (Fees) Order 2015 (SI 2015 No 746).
The 2015 Fees Regulations: The Immigration and Nationality (Fees) Regulations 2015 (SI 2015 No 768).
"A person born in the United Kingdom… who is not a British citizen… shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person's life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90."
"The Home Office must ensure that there are sufficient resources to control migration for the benefit of the UK in a way that achieves value for money for the taxpayer. Government intervention is necessary to ensure a balanced budget…
The specific policy objective of this legislation is to generate sufficient income to ensure the Home Office has a balanced budget for the financial year 2014-15. This will enable the Home Office to run a sustainable immigration system – making timely, correct decisions on who may visit and stay and deterring, stopping or removing those who have no right to be here – in a way that achieves value for money for the taxpayer. Policy objectives on immigration and nationality fees are: (1) that those who benefit directly from our immigration system (migrants, employers and educational institutions) contribute towards meeting its costs, reducing the contribution from the taxpayer; (2) that the fees system is simplified where possible, aligning fees where entitlements are similar; (3) that fees are set fairly, at a level that reflects the value of a successful application to those who use the service."
As a result, fees were increased across the board by 4% – and there were greater increases in relation to some specifically targeted fees – to enable the books to be balanced. It is estimated by Mr Sparks that the positive contribution of nationality applicants in that exercise will be about £130m in the year 2015-16.
"… a person shall not be registered under any provision of this Act as a citizen of any description… unless… any fee payable by virtue of this Act in connection with the registration… has been paid…".
Section 42(3) provided that:
"Any provision in this Act which provides for a person to be entitled to registration as a citizen of any description… shall have effect subject to the preceding provisions of this section."
"A person shall not be registered under a provision of this Act as a citizen of any description… unless any fee payable by virtue of this Act in connection with registration has been paid."
Section 41(2) of the 2002 Act gave the Secretary of State, with the consent of HM Treasury, a power to make regulations providing for the imposition, recovery and application of fees in connection with any registration under the Act.
(1) The Secretary of State may by order require an application or claim in connection with immigration or nationality (whether or not under an enactment) to be accompanied by a specified fee.
(2) The Secretary of State may by order provide for a fee to be charged by him, by an immigration officer or by another specified person in respect of –
(a) the provision on request of a service (whether or not under an enactment) in connection with immigration or nationality,
(b) a process (whether or not under an enactment) in connection with immigration or nationality…
(3) Where an order under this section provides for a fee to be charged, regulations made by the Secretary of State –
(a) shall specify the amount of the fee,
(b) may provide for exceptions,
(c) may confer a discretion to reduce, waive or refund all or part of a fee,
(d) may make provision about the consequences of failure to pay a fee,
(e) may make provision about enforcement, and
(f) may make provision about the time or period of time at or during which a fee may or must be paid.
52. Fees: supplemental
(3) An order or regulations under section 51 –
(a) may make provision generally or only in respect of specified cases or circumstances,
(b) may make different provision for different cases or circumstances,
(c) may include incidental, consequential or transitional provision, and
(d) shall be made by statutory instrument.
(4) An order under section 51 –
(a) may be made only with the consent of the Treasury, and
(b) may be made only if a draft has been laid before and approved by resolution of each House of Parliament.
(5) Regulations under section 51 –
(a) may be made only with the consent of the Treasury, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament."
That there is a strong fiscal element to an order or regulations made under section 51 is thus confirmed by the fact that they require the specific consent of HM Treasury.
"(1) Applications to which this article applies must be accompanied by the fee specified in regulations made under section 51(3) of the 2006 Act.
(2) This article applies to applications for –
(k) registration as a British citizen under section 1…(4)…of the 1981 Act…".
"(1) In prescribing a fee under section 51 of the [2006 Act] in connection with a matter specified in subsection (2) the Secretary of State may… prescribe an amount which is intended to –
(a) exceed the administrative costs of determining the application or undertaking the process, and
(b) reflect benefits that the Secretary of State thinks are likely to accrue to the person who makes the application, to whom the application relates or by or for whom the process is undertaken, if the application is successful or the process is completed.
(2) Those matters are –
(a) anything done under, by virtue of or in connection with a provision of the [1981 Act]
(b) an application for leave to remain in the United Kingdom,
(2A) Regulations under section 51(3) of the [2006 Act], specifying the amount of a fee for a claim, application, service, process or other matter in respect of which an order has been made under section 51(1) or (2), may specify an amount which reflects (in addition to any costs referable to the claim, application, service, process or other matter) costs referable to –
(a) any other claim, application, service, process or matter in respect of which the Secretary of State has made an order under section 51(1) or (2),
(b) the determination of applications for entry clearances (within the meaning given by section 33(1) of the Immigration Act 1971),
(c) the determination of applications for transit visas under section 41 of the Immigration and Asylum Act 1999, or
(d) the determination of applications for certificates of entitlement to the right of abode in the United Kingdom under section 10 of the [2002 Act].
(7) An instrument may not be made in reliance on this section unless a draft has been laid before and approved by resolution of each House of Parliament (and any provision making the instrument subject to annulment in pursuance of a resolution of either House of Parliament shall not apply)."
"7.1 The fees contained in these regulations are set above the administrative cost of providing the application, process or service in line with the government's flexible charging model. Charging fees above the cost of administration helps raise the revenue required to fund the immigration system and to cross-subsidise fees set below cost for immigration routes where a lower fee supports government objectives. As a direct result of the fees referred to in this instrument, the UK Border Agency is able to generate sufficient income to support the immigration system, maintain public confidence and ensure that migration is controlled for the benefit of the UK.
7.2 The UK Border Agency aims to generate an appropriate contribution to its agreed running costs from the income generated from visa, nationality and immigration applications. By doing this, the Agency seeks to reduce the financial obligation on the UK taxpayer to subsidise the immigration system. It is also able to protect certain routes from significant fee increases while generating the additional revenue needed to fund enforcement and other necessary improvements to the immigration system."
The purpose of generating income from fees is therefore said to be to protect (i) the public interest in reducing the burden on the public purse, and (ii) the interests of other applicants from having to pay even higher fees.
"No fee is payable in respect of an application made in respect of a person who, at the time of making the application is a child and is being provided with assistance by a local authority."
I shall call this "the LTR child destitution fee exemption".
"Where these Regulations specify a fee which must accompany an application for the purposes of the 2011 [Fees] Order, the application is not validly made unless it is accompanied by the specified fee."
i) The Secretary of State had the power to make an Order requiring an application under section 1(4) to be accompanied by a fee (section 51(1) of the 2006 Act). That power was subject to HM Treasury approval and an affirmative Parliamentary resolution of both Houses of Parliament (section 52(7) of the 2006 Act).
ii) Where an Order was made providing for a fee, the Secretary of State had the power to set the amount of the fee, and to make exceptions and provide for a discretion to waive a fee, in regulations (section 51(3) of the 2006 Act).
iii) The 2011 Fees Order gave the Secretary of State power to require a fee for an application under section 1(4) of the 1981 Act. The 2013 Fees Regulations set that fee at £673, but provided for no exceptions and for no discretion to waive that fee.
iv) Where a specified fee did not accompany an application, that application was not validly made and could thus be returned to the applicant unprocessed.
(i) the applicant is a child and is being provided with assistance by the local authority (e.g. under section 17) (Exception 9.6); or
(ii) the applicant makes a specified human rights application where to require payment of the fee would be incompatible with the applicant's human rights (Exception 9.4).
The European Convention on Human Rights
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Thus, the right to respect for family and private life is not absolute: interference with that right can be justified by the State if that interference is (i) for a legitimate aim, (ii) in accordance with the law, and (iii) necessary in the public interest. Whether the interference is "necessary" in this context, is dependent upon whether it is proportionate to the legitimate aims pursued by the State. It has long been recognised that that requires a context-specific exercise to be performed, in which "the nature, context and importance of the right asserted and the extent of the interference… must be balanced against the nature, context and importance of the public interest asserted as justification" (Human Rights Law and Practice, Lester & Pannick, 1st Edition (1999) at paragraph 4.8.43).
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"A request for waiver of a fee in respect of an application for entry clearance which would normally be due is a request for a substantive benefit which entails the State having to bear some cost. A person who applies for a waiver of the normal fee will be entitled to such waiver if he can show (i) that he falls within some statement of policy by the Secretary of State regarding the circumstances in which a waiver will be granted, or (ii) that there are other compelling circumstances of his case not referred to in any statement of policy that ought to be taken into account by the Secretary of State (see [R (Elmi) v Secretary of State for the Home Department  EWHC 2775 (Admin)] at -) and that, taking such matters into account, it would be irrational for the Secretary of State to refuse to grant a waiver, or (iii) that there is a duty on the Secretary of State under section 6(1) of the [Human Rights Act] to grant a waiver, by reference to Convention rights (here, article 8 is relied upon). The person applying for a waiver may also be entitled to judicial review of a decision to refuse such waiver, so as to compel a reconsideration of that decision, if he can show that any of the usual grounds of judicial review (such as failure to take into account relevant considerations, or that irrelevant considerations have been taken into account) are made out."
The "usual grounds of judicial review" of course include circumstances in which the decision-maker has exceeded the powers delegated to him or her by Parliament.
i) Charging a fee for an application for leave is, in principle, fair and proportionate to the legitimate interests identified in article 8(2) of the "economic well-being of the country" and "the protection of the rights and freedoms of others" (i.e. other users of the immigration system and taxpayers generally) (at [74(9)]).
ii) This is because there is, in general terms, a reasonable relationship between charging those who will potentially enjoy the benefits to be gained from a grant of leave, and the overall burden upon the State in administering the immigration system (at [74(2)]).
iii) In considering whether the State should be required to waive a fee under article 8, the court should be slow to find implied positive obligations which would involve imposing significant expenditure which will necessarily involve a diversion of resources from other activities of the State in the public interest. For this reason an implied positive obligation under article 8(1) will only be found where the court has found a direct and immediate link between the measures sought by the applicant and his private and/or family life (at [74(7)]).
iv) In charging a fee, it is for the State to "strike a fair balance" between the general interests of the community and the interests of the individual, which must include an assessment of the "strength and force" of the article 8 claim (i.e. the extent of the interference with the article 8 rights of the applicant and/or his family that will be caused by the failure to waive the fee and thus the denial to him of that which he is applying for) (at [74(5)] and [74(9)])).
v) In striking that balance the State will enjoy a "margin of appreciation" (at [74(5)]). Sales J cited Evans v United Kingdom (2008) 46 EHRR 36 at  in this respect:
"Although the object of article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State's positive and negative obligations under article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation."
vi) The fact that the interests of a child are in issue is a countervailing factor which will reduce to some degree the width of the margin of appreciation, article 8 having to be interpreted and applied in the light of the United Nations Convention on the Rights of the Child ("UNCRC") (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 ("ZH Tanzania"), and HH v Deputy Prosecutor of the Italian Republic, Genoa; F-K v Polish Judicial Authority  UKSC 25). However, under the UNCRC, the rights of the child are a primary consideration – i.e. (he said) "an important matter" – not the primary consideration; and the interests of a child do not provide a trump card such that an application by a child must always be successful (at [74(8)]).
"Applicants will qualify for a fee waiver only where they can demonstrate on the basis of evidence provided that they are destitute, or where there are exceptional circumstances."
However, the relevant human rights claims covered by the guidance were restricted to applications for leave to remain under the ten-year route or on ECHR grounds: it did not apply to other applications such as those under section 1(4) of the 1981 Act. The fee waiver was intended to make provision for those applicants who would otherwise be unable to exercise their right to respect for family and private life under article 8 or other ECHR rights (see paragraph 1.2.3). The policy has been subsequently been withdrawn; but, as I have described, the LTR child destitution fee exemption was incorporated into the 2013 Regulations and subsequent iterations (see paragraph 21 above).
i) The Claimant's parents were unlawfully present in the United Kingdom, having remained in the United Kingdom contrary to section 24 of the Immigration Act 1971 ("the 1971 Act").
Mr Williams had leave to remain as a worker until 25 September 2009, and his wife and son had a parasitic entitlement to leave; but a further application to remain on the same basis was refused on 27 November 2009, and tribunal challenges to that refusal failed. A request by Mr Williams for the issue of removal directions (which would have prompted another right of appeal) was made on 23 December 2013. As at 12 February 2015, that request remained outstanding.
ii) The Claimant was not unlawfully present in the United Kingdom, having neither entered nor remained in the United Kingdom in breach of section 24 of the 1971 Act.
However, whilst he was not required to secure leave to remain (see Section 4A of Chapter 8 the Immigration Directorate Instructions), he was subject to immigration control. He did not have leave to remain, and would have been refused it before he reached the age of seven because his parents did not have leave to remain (paragraphs 304-309 of the Immigration Rules). After 9 July 2012, when the relevant rule came into force, he qualified for 30 months' renewable leave to remain under paragraph 276ADE(1)(iv) of the Immigration Rules, which provides:
"The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK."
The Claimant had complied with these requirements since his seventh birthday, 26 September 2010. His parents were also thus entitled to apply for discretionary leave to remain outside the Immigration Rules, parasitic on his claim under that provision. Following an application for leave to remain on grounds of long residence made in December 2010, further representations were made to the Secretary of State on his behalf under paragraph 276ADE(1)(iv) on 4 June and 23 December 2013.
"… as your application does not have the correct fee of £673.00 it has been rejected. The fee is prescribed by law and there is no discretion to waive the fee or to accept a lesser amount, irrespective of the particular circumstances of the applicant. The prescribed fee must accompany the application in order for the application to be valid.
For any further action to be considered you will need to resubmit a fresh application with all supporting documentation and correct fee using the payment slip aside."
Is the Claim Empty?
i) A distinction can be drawn between an issue which is "academic" and one that is "hypothetical" (see, e.g., Omar at  per Beatson J; and Sir John Laws, "Judicial Remedies and the Constitution" (1994) 57 MLR 213). An academic question is one which does not need to be answered for any practical purpose at all. A hypothetical question is one which may need to be answered for real practical purposes at some stage, although the answer may not have immediate practical consequences for the particular parties in respect of the extant matter before the court.
ii) The courts will not determine academic issues. However, in a public law claim, it has a discretion to hear a matter which raises a hypothetical question, even when the determination of that question will not directly affect the rights and obligations of the parties inter se in an extant cause (see, e.g., R v Secretary of State for the Home Department ex parte Salem  1 AC 450 at page 456 per Lord Slynn).
iii) Nevertheless, the court will only do so if there is good reason in the public interest, and then only after exercising considerable caution (ibid).
iv) Whether it is in the public interest for the court to proceed to determine an issue which has become hypothetical will, of course, depend upon all the circumstances of the particular case. In R v BBC ex parte Quintavelle (1998) 10 Admin LR 425, Lord Woolf MR (with whom Aldous and Chadwick LJ agreed) said that the exercise of the court's discretion should be informed by two considerations: (i) whether there was any relief that could be granted "which would be of value to those who have to decide matters such as this", and (ii) whether the particular case was an appropriate vehicle for providing that guidance. If an issue is necessarily fact-sensitive, it is unlikely to be in the public interest to proceed. If it is likely that the courts will be required to determine the issue in the near future, it may be more likely to be in the public interest for the issue to be determined now, especially if it affects a substantial number of people and/or the costs of preparing the issue for hearing have already been expended by the parties.
i) The debate before me was fairly wide-ranging. However, the Claimant puts himself forward as representative of a discrete category, namely those children who are (a) born in the United Kingdom of non-EU parents, (b) live in the United Kingdom from birth for ten years without a break of 90 days or more, and (c) receive assistance from the local authority as a result of destitution. Further, he restricts the relief he seeks to that focused on that group. The case does not, therefore, raise the wider destitution point dealt with in Carter (see paragraph 43 above).
ii) The issue raised is not academic. Although the figures for numbers of relevant applicants in the evidence before me are not easy to construe – and there are no figures for the number of children who might fall into the category I have identified – the figures I do have suggest that there are a significant number of children in the identified category. In paragraphs 35-37 of Mr Sparks' statement, he says that there were 44,900 applications to register a child as a British citizen in 2013-14, of which (as I understand his evidence) he estimates between 6% and 18% might, if it were possible to apply for a discretionary fee waiver, apply for a waiver on the grounds of destitution, of which up to 70% might qualify, percentages he extrapolates from the proportion of applications for settlement on article 8 grounds that are in practice exempted. If that is all so, perhaps a minimum of 1,900 children per year would be affected – and possibly as many as 5,600. However, the Claimant does not seek such a discretionary fee waiver for the destitute: he seeks an exemption from the fee for those children who are in receipt of assistance from the local authority. That reduces those numbers; but it seems likely that, nevertheless, a significant number of children will still be affected. Although the relevant statutory provisions have been replaced by the Immigration Act 2014, and the 2015 Fees Order and 2015 Regulations, the new scheme appears to be materially similar.
iii) Ground 1 is not fact-sensitive: it turns on the construction of the provisions within the statutory scheme. Ground 2 concerns human rights, which is inherently dependent upon the particular circumstances of the individual(s) involved. However, the crucial fact is that, at the time of the challenged decision, the Claimant was in receipt of section 17 assistance – and thus, by definition, he and his parents were destitute and unable to pay the relevant fee. The claim is therefore focused, and essentially not fact-specific. The relief that the Claimant now seeks (see paragraph 49 of Mr Knafler's skeleton argument) is instructive: he seeks only a declaration that regulation 6 of and Schedule 4 to the 2013 Regulations were ultra vires and incompatible with article 8 "insofar as they fail to except children in receipt of local assistance from having to pay the application fee for registration as a British citizen under section 1(4) of the [1981 Act]".
iv) The Claimant has standing to seek relief in respect of the absence of any discretion to waive fees for children who are in receipt of local authority assistance; because, at the time of the challenged decision, he was in that position. He was directly affected by the Secretary of State's decision not to waive the fee. The Claimant's position pre-12 February 2015 is typical of, and well-illustrates, the position of other children who fall within the category I have identified.
v) Permission has been granted in this claim, on both grounds. They are clearly arguable.
vi) The issue has only become hypothetical in this case because the Secretary of State has, after very considerable delay and after the issue of these proceedings, granted the Claimant's parents leave to remain with the right to work. It is unclear why that decision was so delayed, and why a decision was made when it was – just a month before the substantive hearing in this claim. By the time of that decision, both parties in this claim had lodged detailed grounds. Both parties were fully prepared to argue the merits of both grounds before me; and, indeed, did so.
vii) Therefore, it is likely that the issue will have to be determined by the courts in the relatively near future; and the costs of arguing it in this claim have largely been committed. In all the circumstances – having considered the matter with particular care – I consider it is in the public interest for me to determine the issue in respect of children who fall into the category identified in (i) above, rather than waste those costs and require other parties in some other case to expend further costs in preparing for and arguing it. However, I shall strictly restrict my consideration to the issues raised by Mr Knafler, and for which the Claimant is an appropriate representative, i.e. were regulation 6 of and Schedule 4 to the 2013 Regulations ultra vires and/or incompatible with article 8 of the ECHR insofar as they fail to except children in receipt of local authority assistance from having to pay the application fee for registration as a British citizen.
The Fiscal Implications of the Secretary of State's Policy
i) Leave to remain is likely to be given for only 30 months, and there is therefore likely to be repeat applications, each of which will be fee exempt, until the child is able to apply for indefinite leave to remain, the application for which will also be fee exempt.
ii) Once a child has the right to remain, it is likely that his non-EU parents will also be given the right to remain. However, that will also require an application by each, and those applications too are likely to be fee exempt.
iii) It is likely that, during some or all of this period, the State will have to support the child and/or his parents, e.g. under section 17.
That potentially bore upon the question of whether Parliament could have intended the Secretary of State to use her powers to require and exempt fees in this manner, relevant of course to the ultra vires ground of challenge. Given that that issue only arose during the course of the hearing, I gave the parties an opportunity to submit further written evidence and submissions on it, after the oral hearing. I am grateful for the evidence and submissions that were in the event lodged.
|Application||Unit cost 2013||Fee 2103||Unit cost 2014||Fee 2103||Unit cost 2015||Fee 2105|
|Nationality Registration (Adult)||187||753||114||823||223||913|
|Nationality Registration (Minor)||187||673||144||669||223||749|
|Leave to Remain : Main Applicant||281||578||278||601||299||649|
|Leave to Remain: Dependant||281||433||278||601||299||649|
|ILR: Main Applicant||403||1051||248||1093||433||1500|
Mr Sparks estimates the cost of processing an application for fee waiver when an exemption is not available, but the applicant requests that the fee be waived because (e.g.) he is indigent and the fee represents a barrier to the exercise by him of an ECHR right, as £167. The Claimant does not question any of these figures.
i) In Shiekh (at [74(3)] and [74(7)]), Sales J said that a request for waiver of an application fee was "in substance, a request that the State incur expense (or forego income which would in normal circumstances accrue to it)"; and that a waiver of an application fee might, in some circumstances, "involve imposing on the State significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the State in the public interest" (see [74(7)]). Picking up on those thoughts, Mr Eadie submitted that, whereas the cost of processing applications and the income from applications is built into the Home Office budget, the additional cost of processing waivers and/or lost income from newly exempt applications is not. Both of these factors will therefore reduce the funding available for the immigration system as a whole, and will have to be borne by the tax payer. Providing the exemption sought by the Claimant would mean that the Home Office would lose the equivalent of the relevant fee which is, now, £749. If there were no exemption, but a discretionary fee waiver, there would be the additional cost of processing the waiver (£167), i.e. a total additional costs of £916.
ii) On an application for leave to remain by a destitute child, which is fee exempt, the cost to the Home Office will be only £299.
iii) In future years, if the child's parents are able to work (because of being given leave to remain parasitic on that of their child, with the right to work), he/they will not be destitute. Subsequent applications for leave to remain will therefore bring the Home Office positive income of £350 (i.e. the fee of £649 less the costs of £299, assuming these stay the same as now). Any nationality application will bring the Home Office positive income of £526 (i.e. the fee of £749 less the costs of £223, assuming these stay the same as now).
i) Although Sales J appears to have found this argument attractive in Sheikh (see paragraphs 36-40 above), I do not accept that, if the Secretary of State exempted destitute child applications for nationality from paying the fee, she would "lose" income. She cannot have budgeted on the basis of – or possibly expected or contemplated – obtaining any fee income from destitute children in these circumstances: indeed, she must have budgeted on the basis that, if any such children applied, their applications would be simply returned with no fee extracted but at no processing cost – as was the Claimant's application. There is no arguable loss of income here.
ii) Further, I do not accept that, if the Secretary of State exempted destitute child applications for nationality from paying the fee (as the Claimant seeks), she would incur the additional costs of processing a waiver application. The Claimant does not suggest that there should be a discretionary fee waiver. What is postulated by the Claimant is an exemption for children who have local authority assistance because they are destitute. Whether the exemption applied would be a question requiring no value judgment; merely proof that the child was being assisted.
iii) Therefore, if the Secretary of State introduced a fee waiver for destitute child nationality applicants, the "cost" would be restricted to the cost of processing that application, i.e. currently £223, which would have to be borne but which would not be recoverable from the Claimant.
iv) On the other hand, the absence of an exemption means that the child will have to apply for leave to remain, because he will not benefit from the right of residence that accompanies nationality. An application for leave to remain is fee exempt. The costs of processing that application is £299. Further, as I understand it, there will also be the costs of processing the application(s) for that child's parent or parents, also likely to be fee exempt on human rights grounds (£299 each).
v) However, the child's parents, with that leave to remain, are likely to be given permission to work. They may (like the Claimant's parent in this case) also be given access to benefits. Therefore, (a) at the time of any subsequent applications for leave to remain, the child and parents are likely not to be assisted by the local authority, and will not be entitled to a fee exemption; and (b) at the time the child becomes eligible to apply for nationality (at age ten), the child and parents are likely not to be assisted by the local authority, and will not be entitled to any fee exemption based upon destitution.
vi) I accept that, whilst this might be normal or likely, it is not inevitable that, at the relevant time, the child will not be assisted by the local authority. There are various reasons why such assistance might still be received: for example, the determination of a leave to remain application by the Secretary of State might be delayed, or for some reason the child's parents might not be given the right to work or access to benefits, or the parents (whilst having the right to work) might not in the event be able to find a job. I accept that it is therefore possible that a child aged ten who was born in the United Kingdom of non-EU parents might be in receipt of local authority assistance and thus be denied British nationality by dint of that destitution, even if he satisfied all other conditions; but, usually, his parents will, at the relevant time, not be destitute. Furthermore, where they are and the child is as a result receiving assistance from the local authority, then it is likely that that state of affairs will be temporary, and will end when (e.g.) his parents are given leave to remain and permission to work/access to benefits – as happened in this case.
vii) Once the child ceases to receive assistance, when any subsequent applications for leave to remain – or nationality – are made, the full fee will be payable, and a profit over cost (of £526 on a nationality application, at current rates) will be made by the Secretary of State.
viii) In any event, if there is a shortfall – if the cost which the Secretary of State has to bear exceeds the income earned, in respect of either an individual or the category with which we are concerned there is no evidence that the State will bear those costs at the expense of some other public service. Indeed, the evidence is that those costs will be borne by other immigration applicants by way of cross-subsidy, the current policy being that the entire immigration system is cost/profit neutral. Any shortfall would simply mean that (some) other application fees would likely rise to a modest extent: the detriment would be to other applicants, not the State or the public at large. In this case, there is no force in the argument that an exemption such as that suggested by the Claimant will result in a significant diversion of resources from other activities of the State in the public interest. There is no evidence that it would.
Justification: The Evidence of Mr Sparks
Ground 1: Ultra Vires
"That submission would be good in a context which does not touch fundamental constitutional rights. But I do not think it can run here. Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect by express provision – permits the executive to turn people away from the court door. That has not been done in this case."
"The principle is undisputed. Subsidiary legislation must not only be drawn as not to be within the vires of the enabling statute but must also be so drawn as not to conflict with statutory rights already enacted by other primary legislation."
"I also accept that the more fundamental the right interfered with, and the more drastic the interference, the more difficult it is to read a general rule or regulation making power as authorising that interference….
… The effect of this rule is more drastic than the effect of the [rule in Witham]. It does not simply interfere with the opportunity of an appeal which Parliament has decided that an asylum seeker should have. It completely deprives her of it, even if she has behaved with complete propriety and done everything required of her, and irrespective of the merits of her appeal.
… The effect of rule 42(1)(a) is in certain circumstances to destroy 'the very essence of the right'".
"… [W]hen a statutory instrument has been reviewed by Parliament, respect for Parliament's constitutional function calls for considerable caution before the court will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliament's review. This applies with special force to legislative instruments founded on considerations of general policy."
"It is also to be noted that the 2013 Regulations are concerned with a classic issue of general policy involving decisions about the use of resources and the extent to which the UK taxpayer should subsidise the immigration system: see paragraph 7 of the Explanatory Memorandum and the evidence of Mr Sparks. How the various competing interests are to be balanced is quintessentially a political and legislative decision."
i) None of the earlier cases has sought to grapple with an ultra vires issue of this sort. Such an argument appears to have been run in Omar but, as Beatson J determined the claim on the basis that the relevant provisions were incompatible with article 8, he did not consider or decide the issue there. The issue therefore falls to be determined upon principle.
ii) The primary principle is that a delegated power can only be used for the purpose for which it was given. The 2013 Regulations were made by the Secretary of State under powers delegated to her by Parliament to enable her effectively to manage the application procedure that is an inherent part of (e.g.) the registration provisions of section 1(4). Parliament left to the Secretary of State powers over regulating the application and registration procedure for such applicants, no more and no less.
iii) Clearly, it was open to the Secretary of State to impose an application fee requirement; but I accept Mr Knafler's submission that it did not clothe her with the power to prevent an applicant from obtaining British citizenship by registration by imposing a condition within that procedure which would have the consequence of robbing the applicant of the right granted him by Parliament. Mr Eadie accepted that the Secretary of State could not exercise her powers to impose an application fee of (say) £1m, because that would have the effect of excluding the vast majority of children from citizenship under this provision. Mr Eadie suggested that such a fee would be unlawful on several public law grounds – and that is no doubt right – but one ground would be that such a fee would thwart the intention of Parliament that those who have satisfied the substantive conditions of entitlement set out by Parliament in the primary legislation should be entitled to British citizenship.
iv) However, the position with regard to children in the position of the Claimant – children who were born in the United Kingdom of non-EU parents, who remain here for more than ten years, but who are in receipt of local authority assistance at the time an application for nationality could be made – is different. It is more complex. For most children who were born in the United Kingdom of non-EU parents and who have spent the first ten years here, there will in practice be no bar; because, as I have explained, at the age of seven, the child will be able to apply for leave to remain under paragraph 267ADE(1)(iv). Although leave under that provision is subject to the condition that "it would not be reasonable to expect the applicant to leave the UK", in most cases the fact that the child was born in the United Kingdom and has been here for seven years will mean that it will not be reasonable to expect the child to leave. At the same time, the parents of the child (if not entitled to leave to remain under the Rules) will then be entitled to apply to remain on human rights grounds; and, everything else being equal, that application is likely to be granted, with the right to work. Having qualified for leave to remain, both child and parents will usually continue to qualify for further leave on the same basis, unless circumstances change. Although of course not inevitable, it is therefore likely that, once the child reaches the age of ten, his parents will have permission to work, will not be destitute and will be able to afford the fee on the nationality application. Although belatedly, that is what happened in the Claimant's case.
v) I accept that not all children will be in that position. For one reason or another, some will not be able to afford the nationality application fee. On the basis of the data I have seen, that figure may not be insignificant. However, importantly, once an individual born in the United Kingdom has spent the first ten years of his life here, he continues to be entitled to be registered as a British national (subject to the preconditions to which I have referred). The requirement for payment of a fee for those children in receipt of local authority assistance is therefore more akin to a postponement of the ability to register. It does not extinguish the right, nor is it a permanent bar. If the requirement ever interferes with the article 8 rights – or other human rights – of an individual, the Secretary of State accepts that she would be bound to waive the fee.
vi) I accept that there is no evidence that Parliament debated or otherwise considered the 2013 Regulations; but Parliament must be assumed to have understood the consequences of the scheme when it passed the affirmative resolutions for those Regulations. Mr Eadie's submission – that this court should, in those circumstances, be slow to say that the Regulations are unlawful for want of vires – has considerable force.
vii) For the reasons I have given (paragraph 64 above), I do not find Mr Eadie's submission that the Secretary of State's discretion was especially wide because it was for her to consider the extent to which the public purse should subsidise the immigration and nationality system to be compelling – if the Secretary of State adopts a fee exemption for destitute child section 1(4) applications, then the evidence strongly suggests that it will not be the State that bears the costs of the fee-exempt application, it will be other applicants between whom those costs will be spread in the form of (slightly) higher fees. Nevertheless, the primary statute does give the Secretary of State a very wide discretion as to the terms upon which applications are to be made, and fees paid. In my judgment, within that wide power, Parliament enabled the Secretary of State to adopt a scheme with minimal exceptions and waivers of fees, even if that meant hardship in an individual case, because she was entitled to have regard to the benefits of administrative robustness in a scheme. In particular, it enabled her to adopt a scheme without any waiver of fees for child section 1(4) applicants such as the Claimant.
Ground 2: Article 8
"Even if article 8 of the [ECHR] does not guarantee a right to acquire a particular nationality, it remains that nationality is an element of personal identity."
He concluded (at ):
"In these circumstances I am satisfied that the Claimant's claim that he was denied British nationality because of his illegitimate status is within the ambit of article 8. This is because the claim involves the Claimant's social identity, as a person entitled to stay in the United Kingdom, as the child of a British father…" (emphasis added).
He went on to find that, in respect of his claim for citizenship, there had been a violation of article 14 read in conjunction with article 8, because the claimant was being treated differently on the ground of his illegitimacy and that different treatment was unjustifiable.
"Nor should the intrinsic importance of citizenship be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults…".
"44. The [ECHR] decision in Genovese v Malta  FLR 10 [to which Dingemans J also referred in Johnson], concerned the refusal of Maltese citizenship to a child born out of wedlock to the British mother but with a Maltese father. A child born out of wedlock could only be granted Maltese citizenship if born to a Maltese mother. The court repeated what it had often said before to the effect that article 8, and indeed the ECHR as a whole, did not guarantee a right to acquire a particular nationality, but "an arbitrary denial of citizenship might in certain circumstances raise an issue under article 8". There was no family life in that case with the father and there was no breach of article 8 in its refusal. But the decision proceeds on the basis that a breach of article 8 can arise in the context of the refusal of naturalisation where there was an arbitrary or, as in that case, a discriminatory refusal. It does not support any broader potential for a refusal of naturalisation to interfere with article 8.
45. A submission that the mere nature or degree of effect of a refusal of naturalisation, without some further quality of arbitrariness or discrimination, suffices to engage article 8 seems to me ill-founded on this [European Court] jurisprudence. It has not actually held, so far as I am aware, that where the refusal of naturalisation impacts sufficiently seriously on any of the aspects of life covered by the full width of article 8, it is then for the State to prove why it should not be granted. That would mean in effect that there would be a right to naturalisation, notwithstanding that the [European Court] has accepted that there is no such right, and notwithstanding the entitlement of a State to set the terms for and apply its tests to any application for naturalisation. To hold that a refusal of naturalisation, in the absence of an arbitrary or discriminatory decision, interferes with article 8 rights would be to advance beyond what the [European Court] has held. That is not for the domestic courts. That is very different from holding that interference can arise where naturalisation is refused on an arbitrary or objectionably discriminatory basis, as in Genovese.
47. If the correct approach is broader and does not depend on the arbitrary or discriminatory nature of the decision, I conclude that the evidence of interference with art 8 rights is exiguous and not made out in FM's case. He merely states that he has a wife and children who are British nationals. There has to be a greater interference than the mere continuation of the lawful status which the Applicant successfully sought for the purpose of remaining in the UK.
48. I am not persuaded that the article 8 rights of AM, AS or AHK are interfered with either. In no case has it led to any threat to their existing status or ability to live with their family, or any reduction in their ability to travel. They continue to be subject to the uncertainties and problems which apply to those who do not have UK passports when they return to the UK or travel abroad with family members who are British citizens. They may feel less secure in their future. That means no more than that the status quo continues, a state of affairs which does not of itself involve any interference with article 8 rights. The apprehension of reputational damage from the risk or fact that the refusal has or will become generally known or known to friends, community and others, allied to the problems of putting forward evidence to refute them, cannot add much to the more direct effects of the refusal of the benefits of naturalisation. I find it very difficult to see that the reasons for a decision can of themselves constitute an interference with article 8 rights, if the decision does not. All in all, these factors do not seem to be of any real significance such as to amount to an interference with article 8 rights. If there is interference, it is of a quite modest kind."