QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (oao (1) THE PROJECT FOR THE REGISTRATION OF CHILDREN AS BRITISH CITIZENS, (2) O, a child, by her litigation friend, AO, and (3) A, a child, by her litigation friend, NJM)
|- and –
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Sir James Eadie QC, William Hansen and Nicholas Chapman (instructed by Government Legal Department) for the Defendant
Hearing dates: 26th and 27th November 2019
Crown Copyright ©
MR JUSTICE JAY:
(1) GROUND 1: the level of fee is incompatible with the statutory scheme under the BNA 1981 in that it renders nugatory entitlements to register (ss.1, 3(2) and para 3 of Schedule 2), and for that reason is not authorised by the vires-creating power conferred by s.68 of the Immigration Act 2014.
(2) GROUND 2: in setting the fee for registration of children as British citizens under the BNA 1981 at £1,012, the Secretary of State failed to discharge her duties under s.55 of the Borders, Citizenship and Immigration Act 2009 ("the section 55 duty").
(3) GROUND 3: this alleges a breach of the Secretary of State's public sector equality duty under s.149 of the Equality Act 2010 ("the PSED").
(4) GROUND 4: this alleges an equivalent breach of Tameside principles.
(5) GROUND 5: this alleges a breach of the rights of O and A under Article 8 of the Convention.
(6) GROUND 6: this alleges a breach of A's rights under Article 8 combined with Article 14 because the requirement imposed by s.50(9A) of the BNA 1981 is incompatible with those rights.
(1) The Claimants and their Individual Circumstances
(2) The Advantages of British Citizenship
(3) The Impact of the Fee
(4) The Defendant's Decision-Making
(5) A Synopsis of the Statutory Scheme
(6) The Decision of the Court of Appeal in Williams
(7) Ground 1
(8) Ground 2
(9) Ground 3
The Claimants and their Individual Circumstances
The Advantages of British Citizenship
"the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond." (see the publication referred to with approval by Baroness Hale, para 32)
[T]here is much more to British citizenship than the status it gives to the children in immigration law … [i]t carries with it a host of other benefits and advantages … [which] ought never to be left out of account." (Lord Hope, para 41)"
"[b]ecoming a British citizen is a significant life event. Apart from allowing a child to apply for a British passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up." (Guide MN1, July 2019)
"What these citations show is that the right of abode is a creature of the law. The law gives it and the law may take it away. In this context I do not think that it assists the argument to call it a constitutional right. The constitution of BIOT denies the existence of such a right. I quite accept that the right of abode, the right not to be expelled from one's country or even one's home, is an important right. General or ambiguous words in legislation will not readily be construed as intended to remove such a right: see R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, 131-132. But no such question arises in this case. The language of section 9 of the Constitution Order could hardly be clearer. The importance of the right to the individual is also something which must be taken into account by the Crown in exercising its legislative powers - a point to which I shall in due course return. But there seems to me no basis for saying that the right of abode is in its nature so fundamental that the legislative powers of the Crown simply cannot touch it."
"A child with valid leave to remain would be able to reside in the UK, alongside their family unit. They would have access to education, healthcare and be in a similar position to their British peers. A child with settled status [i.e. with indefinite leave] would also have the same access to higher education and funding as that of a British citizen."
The Impact of the Fee
The Defendant's Decision-Making
"We could simplify the fee structure, to make it easier for customers to understand what they are required to pay, but in order to generate the same amount of income this could mean that many people have to pay more, thereby cross-subsidising others that pay less."
The only question which even arguably bore on the issue of fees for registration of nationality was item 6 which asked whether "premium services should be packages together as a single product". I, however, would read the jargon "premium services" as being a reference to business visas and the like, and not to registration applications.
"Longer term … we aim to achieve self-funded status for the BIC system by 2019-20. This means that, alongside expenditure reductions, the contribution from users of the BIC system must increase [from 60%] over the next four years.
Further, we have a duty under [section 55] to have regard to a child's best interests when developing fees policy. There are fee exemptions and waivers in place which apply to children being provided with assistance from a local authority and which ensure that fees are not a disproportionate barrier to any applicant exercising their Convention rights.
[à propos the November 2013 Consultation] On the wider aspects of our fees policy, a key concern from respondents was around the disproportionate effect of fee increases on applicants with lower income. We maintain our view that fee levels are justified by the valuable benefits and entitlements of a successful application. We have continued to offer specific concessions for certain applicants where possible and appropriate.
This 2016-17 PES focuses on fees for statutory migrant applications made using standard services, as the costs of these must be met if an individual is to come to or remain in the UK to work, study or visit. Since individuals can choose whether or not to use the optional premium services that the Home Office provides, or to apply for citizenship or nationality, these non-mandatory services are not included within the PES. (emphasis supplied)
Settlement is a broad term which includes a number of application routes where a successful applicant can subsequently apply to stay indefinitely or apply for citizenship. Fees for these routes are typically higher than those for limited periods of leave because the benefits conferred to successful applicants are greater. For example a grant of indefinite leave to remain means that there is no requirement to leave the UK at any point in the future; it comes with unrestricted access to the labour market and public funds such as NHS treatment and welfare benefits.
The Home Office has given due regard to the [PSED]"
It is immediately apparent that the PES has not in fact assessed the impact of fees on nationality applications. This is borne out by the highlighted passage, and by the fact that there are no exemptions and waivers in place for other than applications for leave to enter and remain.
"18. Having regard to the need to consider the best interests of a child as a primary consideration, the Home Office considers that requiring payment of a fee for child registration applications does not breach the s.55 duty or disproportionately interfere with an applicant's Convention rights. This is because the main question to be addressed is whether children as a whole, and then as individual applicants, will be adversely impacted by the policy in question. Many of the benefits of citizenship are realised in later life, such as the ability to vote, sponsor family members or take reserved employment.
20. As mentioned above, the Home Office considers that citizenship is not a necessary pre-requisite to enable anybody to reside in the UK and enjoy the benefits of such. It is open to those who have ties to the UK to make an application for leave to remain, and where applicable, without charge. Therefore, a grant of citizenship is not required to act in the best interests of a child.
22(iii). Any assessment of a child's best interests in this context is extremely sensitive to individual circumstances and it cannot be said as a generalisation that it is in a child's best interests to acquire British citizenship. For example, because it may be in a child's best interests to preserve links to another country."
I note that paragraph 52(d) of the Secretary of State's skeleton argument disagrees with para 22(iii) of Mr Bartholomew's witness statement.
(1) Amendment debate in the House of Lords, 21st March 2016.
(2) Debate in the House of Commons on the Draft Immigration Fees Order 2016 (under the affirmative resolution procedure).
(3) Debate in the House of Lords on the same draft Order.
(4) Motion of Regret in the House of Lords on the Fees Regulations 2018 (under the negative resolution procedure).
"Clearly, there are costs to the immigration system in processing and assessing such claims and in the ability to assert rights, so it is right that we have a system that can recover those costs. I will reflect on what [MPs] have said … It is all about that relative balance."
"The Motion is very modest. … It calls for two things. First, it calls for a children's best interests impact assessment of the fee level. A freedom of information request has elicited that such an assessment has never been carried out, even though, since 2009, [section 55] requires the Home Office to ensure that the children's best interests are given primary consideration in all decisions that affect them. Secondly, it calls for an independent review of fees for registering children of British citizens."
"Parliament has explicitly to give statutory effect to that requirement [sc. the need to safeguard and promote the welfare of children] through [section 55]. As the noble Baroness, Lady Massey, said, words in statute are not enough: it is actions that matter.
To reset fees for child registration so that they cover just the costs associated with processing an individual application … would reduce fees to below the level that they were in 2007 and reduce the amount of funding that the Home Office has available to fund the immigration system by about £25M to £30M per annum.
I turn to the issue of child registration fees. Let me be clear at the outset that, far from wanting children and young people who regard this country as their home to leave the Government strongly encourage them to make appropriate applications to make their stay here lawful. The most compelling reason for this is that these children are at risk …
The Home Office may grant leave to remain to a child who has lived in the UK continuously for seven years or to a young person who is over 18 but under 25 who has lived continuously in the UK for half of their life. Such leave gives the person concerned the right to live, study and work in the UK and the right, in appropriate circumstances, to receive benefits from public funds.
Of course, some migrants … may wish to become citizens, reflecting that they have spent most of their lives here and are committed to this country – I agree … that citizenship is important as a part of civil society. That is something that we should welcome. …
However, a child will normally acquire citizenship at birth derived from his or her parents. Since 1983, it has not been automatic that a child born in the UK is British. This does not mean that we do not cater for children and their well-being. We care. Children born in the UK are indeed catered for in our immigration and nationality provisions, which are designed to take account of the fact that a child's strongest entitlement is to preserve links with his or her parents and, where they exist, with his or her country of origin.
…[O]ne reason why the Government require formal applications to be made in a designated way is so that all the factors relevant to a child's life and future can be taken into account in an appropriate and considered way. We do not provide fee waivers for citizenship, which reflects the fact that, while citizenship provides extra benefits such as the right to vote in elections and the ability to receive consular assistance while abroad, becoming a citizen is not necessary to enable individuals to live, study and work in the UK, and to be eligible for benefit of services appropriate to being a child or a young adult. The decision to become a citizen is a personal choice, and it is right that those who make that decision should pay a fee."
A Synopsis of the Statutory Scheme
"(1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely—
(a) that he is and always has been stateless; and
(b) that on the date of the application he was under the age of twenty-two; and
(c) that he was in the United Kingdom or a British overseas territory (no matter which) at the beginning of the period of five years ending with that date and that (subject to paragraph 6) the number of days on which he was absent from both the United Kingdom and the British overseas territories in that period does not exceed 450.
(2) A person entitled to registration under this paragraph—
(a) shall be registered under it as a British citizen if, in the period of five years mentioned in sub-paragraph (1), the number of days wholly or partly spent by him in the United Kingdom exceeds the number of days wholly or partly spent by him in the British overseas territories;
(b) in any other case, shall be registered under it as a British overseas territories citizen."
"A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted:
(a) at birth, by operation of law, or
(b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.
A Contracting State which provides for the grant of its nationality in accordance with sub-paragraph (b) may also provide for the grant of its nationality by operation of law at such age and subject to such conditions as may be prescribed by the national law."
"(9) In setting the amount of any fee, or rate or other factor, in fees regulations, the Secretary of State may have regard only to—
(a) the costs of exercising the function;
(b) benefits that the Secretary of State thinks are likely to accrue to any person in connection with the exercise of the function;
(c) the costs of exercising any other function in connection with immigration or nationality;
(d) the promotion of economic growth;
(e) fees charged by or on behalf of governments of other countries in respect of comparable functions;
(f) any international agreement.
This is subject to section 69(5)."
The Decision in Williams
"What is at root wrong with the argument in the present case is, in my view, this. There is no "fundamental" or "constitutional" right to citizenship registration for persons in the position of the appellant at all. The right is one which Parliament has chosen by statute to create and bestow, in certain specified circumstances. Those circumstances include, as one requirement, an application: which is then required to be accompanied by a fee if it is to be valid. There is nothing in the requirement of a fee to defeat the statutory purpose and intent. On the contrary, it is part of the statutory purpose and intent. Mr Knafler's argument, with respect, in effect simply subordinates the requirement for a fee-paid application to the other conditions required to be fulfilled if citizenship under s. 1(4) of the 1981 Act is to be granted. I can see no sufficient justification for that, having regard to the terms of the statutory scheme."
"49. … But it [Sir James' concession] has implications: for it can be said that that connotes that the Secretary of State's powers to include or exclude exemptions and waivers are indeed not unfettered; and that she therefore cannot make regulations which will in practice make it impossible for applicants to succeed in their applications for citizenship. That, then, would lend support to Mr Knafler's overall argument, based on cases such as ex parte Fewings and ex parte Witham: that the power to make regulations under the statutory scheme cannot be exercised in such a way as to frustrate or defeat applicants (a fortiori, child applicants) who are destitute and unable to pay the required fee.
50. I do see the point here. But in my view – and really for the reasons I have already set out – it does not gain traction, given the statutory wording. Furthermore, the concession on behalf of the Secretary of State has to be assessed in the light of the following:
(1) it is to be taken as a given that the Secretary of State's powers are to be exercised in good faith and not arbitrarily;
(2) s. 42(1) of the 2004 Act in terms requires that the amount of fees, which may exceed the administrative costs, should reflect the benefits to the individual estimated as likely to accrue; and
(3) the amount of fees required can only be exacted after prior scrutiny of both Houses of Parliament."
"Moreover, there is this additional, and in my view important, consideration. As Hickinbottom J pointed out, children in a position similar to that of the appellant are most likely first to have become entitled (if it would not be reasonable to expect them to leave the United Kingdom) to a grant of leave to remain under paragraph 276ADE of the Immigration Rules. If that is so, then most likely the child's parents will also be granted leave to remain, with a right of work; and so will not be destitute when the child attains the age of 10. That, I accept, will not always be so. But even then, and importantly, the prospective entitlement to registration as a British citizen is not lost. It remains. As Hickinbottom J put it:
"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."
I agree. Moreover such a consideration would extend generally to those unable, at a given moment in time, to pay the required fee for a citizenship application by reason of destitution. Destitution is not, after all, to be assumed to be a permanent state. Further, there may be the possibility of a gift or loan from other family members or well wishers. It is also relevant that the mandatory requirement of a fee for s. 1(4) applications has not, on the evidence, precluded any very significant number of applicants wishing to apply from so applying. Moreover, in any residual case (which perhaps may be hard to envisage in practice) there is the concession of the Secretary of State that she would be bound on an application for citizenship registration not to require payment of the fee if an interference with an individual's Article 8 rights otherwise would be involved."
"After all, the 1993 Act confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular. And yet these Regulations for some genuine asylum seekers at least must now be regarded as rendering these rights nugatory. Either that, or the Regulations necessarily contemplate for some a life so destitute that to my mind no civilised nation can tolerate it. So basic are the human rights here at issue that it cannot be necessary to resort to the European Convention of Human Rights to take note of their violation. Nearly 200 years ago Lord Ellenborough, C.J. in R v Inhabitants of Eastbourne (1803) 4 East 103 said this:
"As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving."
True, no obligation arises under Article 24 of the 1951 Convention until asylum seekers are recognised as refugees. But that is not to say that up to that point their fundamental needs can properly be ignored. I do not accept they can. Rather I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status."
"In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission." (per Lord Reed JSC at para 91)
"The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable."
"It is – as I have said recently – certainly no part of the function of a puisne judge to criticise decisions of higher courts and I do not venture to do so. He does, however, have to analyse their effect and the effect upon them of general doctrines subsequently established by yet higher courts. The question I am called up to answer is whether [House of Lords authority] … so destroys the only reasoning upon which [Court of Appeal] authority rested and has since stood that I can no longer be bound, or indeed entitled, to follow it and I must apply what I conceive to be the overriding principle."
"55 Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
"In all actions reflecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative bodies or legislative bodies, the best interests of the child shall be a primary consideration."
"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." (para 123)
I do not read Lord Carnwath JSC as holding that parliamentary debates will always be irrelevant to the exercise of ascertaining compliance with Article 3(1). In the circumstances of JS, the Secretary of State's true reasons for making the regulations emerged through his evidence; and that evidence was inadequate (para 128).
"153. So far as the evidence shows, no claim was made on behalf of the government during the passage of the legislation that limiting to two the number of individual elements of child tax credit payable to a family with more than two children is in the best interests of those children themselves. Such a counterintuitive claim would have required evidence and analysis to support it and none was vouchsafed. The way in which the two-child limit is detrimental to the interests of the children in such families is obvious, particularly if their parents are not in work. …
154. Although not mentioned by the government, the interests of children who would be affected by the measure were raised during the debates by members of Parliament who opposed the Bill. For example, at the sitting of the Bill Committee on 13 October 2015 at which the two-child limit was debated, the argument that children are not responsible for their parents' choices was strongly made by the opposition MP, Ms Emily Thornberry, when she said:
"The third or fourth child does not make a choice to live. The third, fourth or fifth child is not to be blamed for their existence. The sixth child is not to have no shoes because of a reckless mother who cannot keep her legs crossed. It is not the sixth child's fault that he is the sixth child. Why should he starve? How will it make a difference?"
No direct answer to this argument was offered by any government representative during the debates. It is clear, however, that the government took the view that, even if imposing the two child limit is contrary – as it seems to me that it plainly is contrary – to the interests of the children who will be affected by it, that consideration was outweighed by the government's reasons for proposing the measure. By enacting the legislation, Parliament must be taken to have endorsed that view."
" By a narrow margin I am driven to conclude that, in relation to its refusal to amend the 2006 Regulations so as to exempt the appellant cohorts from the revised cap, the government did not breach article 3.1 of the UNCRC in either of the relevant dimensions of its concept of the best interests of a child. The Parliamentary and other materials to which I have referred demonstrate that it did evaluate the likely impact of the revised cap on lone parents with young children; and that it did assess their best interests at a primary level of its overall consideration. This court must impose on itself the discipline not, from its limited perspective, to address whether the government's evaluation of its impact was questionable; nor whether its assessment of the best interests of young children was unbalanced in favour of perceived long-term advantages for them at the expense of obvious short-term privation." (emphasis supplied)