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Court of Appeal upheld High Court ruling that £1,000 fee for children to register as British citizens is unlawful

Thursday 18 February 2021

Our Miranda Butler, of the Garden Court Chambers Public Law Team, represented Project for the Registration of Children as British Citizens (PRCBC) with Isabel Buchanan of Blackstone Chambers, led by Richard Drabble QC of Landmark Chambers, instructed by Maria Patsalos, Lucy Grant and Adis Sehic of Mishcon de Reya.

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The Court of Appeal has ruled that the Home Office failed to assess and consider the impact of this fee on the best interests of children. Lawyers and campaigners again are urging Government to drop the fees charged to children for citizenship.

This landmark case, brought by the PRCBC and O (a child), challenges the fee of £1,012 charged to children entitled to British citizenship. In 2019, the High Court found a “mass of evidence” showing that the fee prevents many children from registering their British citizenship, leaving them feeling “alienated, excluded, isolated, 'second-best', insecure and not fully assimilated into the culture and social fabric of the UK.” 

The Home Office did not challenge these findings. The Court of Appeal held that for children like O, “one of three children of a single parent on state benefits, it is difficult to see how the fee could be afforded at all.”

The current administrative processing cost of a child’s registration as a British citizen is only £372. The Home Office uses the remaining £640 profit to cross-subsidise the immigration system.

Today’s judgment again requires the Home Office to reconsider the fee and ensure that children’s best interests are taken fully into account in doing so. The courts have made clear that where a child has a right to British citizenship it will generally be in the child’s best interests to be registered as British – something the Home Office has at no point properly taken into account when setting and increasing the level of the fee. 

Responding to the judgment, O, who is now 13 years old, said:

“I was born in this country and have lived here all my life. I am no less British than any of my friends. It makes me upset to think they or other people might treat me as different if they knew I don’t have a British passport. I have a right to citizenship and have been since I was 10. I do not understand why I continue to be excluded by this huge fee.”

Solange Valdez-Symonds, solicitor for O, said:

“The Government’s priority ought to be to ensure every child with rights to British citizenship can have this confirmed – with all the security, opportunity and sense of belonging that comes with that. I continue to be deeply disturbed that thousands of children are blocked by this huge fee from registering their right to British citizenship, given to them by an Act of Parliament. This must stop.”

The Court of Appeal’s decision

The Court of Appeal has today ruled on an appeal by the Home Office and a cross appeal by PRCBC and O.

The Home Office appealed against the High Court’s ruling that the department had failed to discharge its duty to assess the best interests of children and give primary consideration to these interests in setting the fee. The Home Office sought to rely upon debates in Parliament as evidence that the Home Office had considered children’s best interests despite its contemporary documents, including its Equality Impact Statements showing that the best interests of children were not considered.  The Court of Appeal rejected those arguments and agreed with the High Court that the Home Office had failed to give adequate consideration to the best interests of children affected by the fee. 

PRCBC and O cross appealed on the basis that the fee was unlawful because its effect was to deprive many children of their statutory right to British citizenship. The High Court had found this argument to be “powerful” but decided it was bound to reject it because it was bound to follow the Court of Appeal’s previous decision in Williams v SSHD [2017] EWCA Civ 98.

The Court of Appeal likewise held that it is bound by its previous decision, but two of the judges indicated that were it not for that previous decision they would see “considerable force” in the argument. PRCBC and O have sought permission to appeal to the Supreme Court.

Carol Bohmer, Chair of the Project for the Registration of Children as British Citizens (PRCBC) said:

“PRCBC is determined to ensure that all children with rights to British citizenship are able to exercise these rights. We are delighted the courts have yet again held this scandalously high fee, which prevents many children registering with the citizenship to which they are entitled, is unlawful. But children are still being excluded – by this fee and by many other barriers, which the Government should be doing all it can to remove; and we will continue in our mission to make that happen so no one is in future forced to grow up in the UK suffering the alienation and isolation that is currently the experience of so many young people.”

Maria Patsalos, Partner at Mishcon de Reya who acted for PRCBC said:

"This decision is another positive step in enabling children to access their rights as British citizens. It is a decision to celebrate, but we remain concerned that with each passing day of the Home Office waiting to rectify this, some children are losing the right to register as British upon turning 18. The Home Office should look now to amend its fees and act swiftly to ensure wealth is not a requirement for children to access their citizenship rights."

PRCBC was represented pro bono by Mishcon de Reya solicitors (Maria Patsalos, Lucy Humphreys and Adis Sehic) instructing Richard Drabble QC of Landmark Chambers, Miranda Butler of Garden Court Chambers and Isabelle Buchanan of Blackstone Chambers. O was represented by Solange Valdez-Symonds (Cardinal Hume Centre) instructing Richard Drabble QC and Admas Habteslasie of Landmark Chambers and Jason Pobjoy of Blackstone Chambers.

This judgment was covered in the national press including The Independent and is available here: https://www.bailii.org/ew/cases/EWCA/Civ/2021/193.html.

The Court of Appeal also granted PRCBC and O permission to appeal to the Supreme Court on the ground that the fee unlawfully cuts down important statutory rights.

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