Supreme Court dismisses legal challenge against child British citizenship fees

The Supreme Court recently heard and dismissed an appeal concerning whether subordinate legislation was ultra vires due to the fact that it set the fee payable when applying to register a child as a British citizen at a level which may be prohibitive for many young applicants.

In this specific case, the first claimant (O) was born in the UK, has lived their entire life in the UK and has never left the country. O applied to be registered as a British citizen in 2017, however, was unable to afford the full Home Office application fee (£973 at the time). As the applicant did not pay the required fee upon application, the Secretary of State refused to process the application.

The Secretary of State is empowered to set fees in relation to applications to obtain British citizenship by the Immigration Act 2014. This power includes not simply the processing cost of the application, but also any benefits that the Secretary of State thinks are likely to be accrued by the applicant from being granted British citizenship. Also included within the scope of what may be considered when setting fees, are the costs of exercising immigration and nationality functions more generally.

The British Nationality Act 1981 allowed the government to set a fee for such applications, initially at a level which would allow the cost of processing the application to be recovered. Subsequent legislation allowed for higher fees to be charged, not only to cover the cost of processing the application, but also to contribute to covering the costs of maintaining the immigration system more generally.

However, it is argued that the current fee has reached a level which is simply unaffordable for many young people and their families. This argument is hard to dispute when one notes that the current Home Office application fee is £1,012.00, and the estimated processing cost of such applications is about £372.00.

The present case for child O was that the regulations which specified the level of the fee were unlawful, as it allowed the fee to be set so high that it “rendered nugatory the underlying statutory right to become a British citizen”.

The claimants conceded that access to British citizenship was not a common law right recognized as constitutional or fundamental. Therefore, the court characterised citizenship as a statutory right. Lord Hodge therefore concluded that as there exists an explicit statutory authorisation to charge fees at a level set by the Home Secretary, as per the British Nationality Act 1981, the appropriateness of imposing fees in this context was a question of policy, and therefore subject to political determination.

This judgment represents a very narrow view of statutory interpretation, which has been a consistent approach of the current Supreme Court.

In the larger discussion of the level of immigration application fees more generally, the Home Secretary will need to assess the current levels and the subsequent prohibitory impact such large fees have on those who genuinely meet the relevant requirements needed to submit such applications to the Home Office.

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