The Supreme Court has today handed down its judgment in the appeal in R (O and Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department  UKSC 3, unanimously dismissing the appeal.
The British Nationality Act 1981 sets out a framework for the registration of children who satisfy certain statutory criteria as British citizens. Section 1(4) of the 1981 Act provides as follows:
“A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1), (1A) or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.”
The first appellant, O, is a 13-year old who was born in the UK and sought registration under s.1(4) of the 1981 Act, on the basis that she satisfied the statutory requirements. The second appellant is 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.
In the Administrative Court before Jay J, the appellants had argued that:
(i) the fee was ultra vires the power to fix fees conferred by s.68 of the Immigration Act 2014 because it rendered nugatory important statutory rights under the 1981 Act by making the exercise of those rights conditional on the payment of an unaffordable fee (the vires ground);
(ii) the Secretary of State had acted unlawfully in setting the fee without consideration of children’s best interests, as required under s.55 of the Borders, Citizenship and Immigration Act 2009 (the s.55 ground).
At first instance, Jay J found that “a significant number of children… could only pay the fee by those acting on their behalf being required to make unreasonable sacrifices” and that “children born in the UK and identifying as British… feel alienated, excluded, isolated, ‘second-best’, insecure and not fully assimilated into the culture and social fabric of the UK”. These factual findings were not disputed by the Secretary of State.
The vires ground was dismissed by Jay J and the Court of Appeal on the basis that both courts concluded that they were bound by the earlier Court of Appeal decision in R (Williams) v Secretary of State for the Home Department  1 WLR 3283, which dealt with a similar argument in relation to the same statutory framework. Jay J allowed the claim on the s.55 ground and, on appeal to the Court of Appeal, the Secretary of State’s appeal was dismissed. There was no further appeal on the s.55 ground.
Thus, the appeal before the Supreme Court concerned only the appellants’ vires argument. The Supreme Court dismissed the appeal and upheld the earlier decision in Williams. The Supreme Court concluded that, on the plain words of the authorising provisions of the Immigration Act 2014, affordability was not a factor that the Secretary of State was obliged to consider.
Miranda Butler (also led by Richard Drabble QC) acted for PRCBC, instructed by Maria Patsalos of Mischon de Reya LLP.