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High Court declares £1,012 fee charged by the Home Office to children applying for British citizenship is unlawful

Thursday 19 December 2019

The claim was brought by Project for the Registration of Children as British Citizens (PRCBC) and two children who had been affected by the level of the fee. 

Miranda Butler of Garden Court appeared for PRCBC, led by Richard Drabble QC of Landmark Chambers and instructed by Mishcon de Reya. 

The Second and Third Claimants were represented by Richard Drabble QC of Landmark Chambers, Jason Pobjoy of Blackstone Chambers, Isabel Buchanan of Blackstone Chambers and Admas Habteslasie of Landmark Chambers, instructed by Solange de Valdez Symonds at PRCBC. 

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The High Court has today declared that the £1,012 fee charged by the Home Office to children applying for British citizenship is unlawful. Mr Justice Jay concluded that in setting the fee, £640 of which represents profit, the Home Office had failed to have regard to its obligation under s. 55 of the Borders, Citizenship and Immigration Act 2009 to treat the best interests of affected children as a primary consideration.

This claim was brought by PRCBC and two children who had been affected by the level of the fee. The claimants argued that the fee was unlawful on various grounds, but the two principle grounds considered by the High Court were:

  1. Whether the fee cuts down statutory rights to citizenship and was therefore ultra vires; and
  2. Whether the Secretary of State had discharged her duty under s. 55 of the 2009 Act.

The claimants relied on what Mr Justice Jay referred to as a “mass of evidence” that a significant number of children had been unable to pay the fee. He accepted that the fee was “unaffordable” and that children who had been born in the UK and identified as British feel “alienated, excluded, isolated, ‘second-best’, insecure and not fully assimilated into the culture and social fabric of the UK” as a result of being unable to afford citizenship.

The claimants succeeded on their second ground, with the Court accepting that there had not been ably recognition by the government of where children’s best interests might lie. This was reflected in the changing position of the government in the litigation in question; in their written Defence the Home Office had argued that British citizenship was not necessarily in children’s best interests whereas, in their skeleton for the judicial review hearing, First Treasury Counsel agreed that British citizenship would generally be in children’s best interests. The Court concluded that the Home Office had failed to have due regard to the best interests of affected children.

Mr Justice Jay rejected the claimants’ argument that the level of the fee cut down important statutory rights to citizenship on the grounds that he was bound by the Court of Appeal’s decision in R (Williams) v SSHD [2017] 1 WLR 3283. In light of this, he granted the claimants a ‘leapfrog’ certificate to permit them to apply for permission to appeal directly to the Supreme Court and granted the Home Office permission to appeal to the Court of Appeal on the s. 55 issue. 

The case has been reported on in the Guardian and the Independent

Miranda Butler is a member of the Garden Court Immigration Team.

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