R (Project for the Registration of Children as British Citizens and O) v SSHD [2021] EWCA Civ 193

London 709256 1920

The Court of Appeal (Richards, Singh and Davies LJJ) has given judgment in R (Project for the Registration of Children as British Citizens and O) v SSHD, upholding the decision of Mr Justice Jay that the £1,012 fee for children who wished to apply for registration as a British Citizen was unlawfully imposed, and granting permission to the claimants to appeal to the Supreme Court to argue that the fee is ultra vires. The claimants are the Project for the Registration of Children as British Citizens (PRCBC), an organisation that works to secure the British citizenship rights of children and young people, and O, a 13-year old who, having been born in the UK and lived here throughout her life, has a right to be registered as a British citizen under section 1(4) the British Nationality Act 1981. Before Jay J, the claimants challenged the fee on the basis, inter alia, that it was (i) set without regard to the best interests of children, contrary to the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 and (ii) was ultra vires the British Nationality Act 1981 because it rendered nugatory important statutory rights by making the exercise of those rights conditional on the payment of an unaffordable fee. Jay J found that the Secretary of State had acted contrary to the section 55 duty. The Court of Appeal dismissed the Secretary of State’s appeal against that aspect of the judge’s decision. Jay J rejected the claimants’ ultra vires argument on the basis that he was bound by the judgment of the Court of Appeal in R (Williams) v SSHD [2017] 1 WLR 3283. The claimants cross-appealed against this aspect of Jay J’s decision. On the cross-appeal, the Court of Appeal upheld Jay J’s conclusion on the basis that it too was bound by its earlier decision in Williams. The Court of Appeal has granted the claimants permission to appeal to the Supreme Court on the ultra vires point. The judgment may be viewed here. Richard Drabble QC appeared for both claimants, leading Jason Pobjoy and Admas Habteslasie for O, and Miranda Butler and Isabel Buchanan for PRCBC; they were instructed by Solange Valdez-Symonds of the Cardinal Hume Centre and Maria Patsalos of Mischon de Reya LLP.

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