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Project for the Registration of children as British citizens & Anor [2021]

Appeal and cross appeal concerning the fees charged for children to register as British citizens. Court upheld finding that the Secretary of State had failed in her duty under s.55 of the Borders, Citizenship and Immigration Act 2009 to assess children’s best interests and ensure that these were a primary consideration

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Appeal and cross appeal of the decision of the High Court ([2019] EWHC 3536 (Admin) Mr Justice Jay).  The claimants challenged the fees charged to children applying to register as British citizens (currently £1012, comprising £372 admin and processing costs, and £640 to be applied to subsidising other parts of the nationality, immigration and asylum system).  Two arguments were relevant on the appeal


1) The fees are ultra vires the British Nationality Act 1981 in that they render nugatory for a significant number of children the entitlement to register because the fees are unaffordable

2) In fixing the fee for applications to register by a child, the Secretary of State failed to comply with her statutory duty imposed by s 55 to have regard to the need to safeguard and promote the welfare of children in the United Kingdom when discharging any functions in relation to immigration, asylum or nationality

In respect of 1) the High Court held it was bound by the Court of Appeal decision in R (Williams) v SSHD [2017] EWCA Civ 98.  In respect of 2) the Judge held that the Secretary of State had failed to comply with her duties under s55.

The Claimants sought permission to appeal the decision on 1) and the Judge certified his decision under s12 of the Administration of Justice Act 1969 for the purpose of a leapfrog appeal to the Supreme Court.  The Supreme Court refused permission observing that the Court of Appeal should consider Williams in the light of the Supreme Court decision in R (UNISON) v Lord Chancellor [2017] UKSC [2020] AC 869
The Secretary of State appealed the decision
in relation to 2).  An issue arising in relation to that appeal was the impact of Article 9 of the Bill of Rights 1689 which regulates the use of Parliamentary materials in legal proceedings.  The secretary of State relied to some extent in the hearing below, and proposed to rely almost exclusively in the Court of Appeal on parliamentary debates to show that she had weighed the best interests of children but had concluded they were outweighed by other factors in fixing the fees at the level they were.  The speaker of the House of Commons and the Clerk of the Parliaments in the House of Lords were invited to intervene.  The interveners' submission was that the exceptions to Art 9 previously identified by the courts did not apply in this case, and did not allow for "the possibility of extensive use of Parliamentary material that is in dispute between the parties as here" (para 87)

The Court of Appeal refused both appeals.  In relation to 1) the Court found Williams remained binding on them, but gave permission to appeal to the Supreme Court.  In relation to 2) the court found that the witness evidence filed by the Secretary of State did not demonstrate that the s55 duty had been complied with, and that the secretary of state's proposed reliance on Parliamentary debates to fill the evidential gap was prohibited by Article 9 of the Bill of Rights and by the general principles of Parliamentary privilege.

Case summary by Martina van der Leij, Barrister, Field Court Chambers

For full case, please see BAILII