Written by Mahfuz Ahmed.

 

 

Children applying to be registered as British citizens under the British Nationality Act 1981, need to pay the Home Office a fee of £1012.00 for the registration.

 

The British Nationality Act 1981 permits the Secretary of State to charge a fee for registering a British citizen. The fee has increased substantially over the years.

 

Many young applicants have found this fee to be expensive and unaffordable. This has caused a barrier to a lot of children, or those who have become adults, from obtaining citizenship.

 

A challenge has been bought to the Courts in relation to the lawfulness of charging such fees which are in excess of the actual processing costs incurred by the Secretary of State. In particular, whether by doing so, they had breached their duty under Section 55 of the Citizenship and Immigration Act 2009.

 

The said Act obliges the Secretary of State to have regard to the need to safeguard and promote the welfare of children who are in the UK when discharging their function in relation to Immigration, asylum or nationality.

 

R (on the application of O (a minor, by her litigation friend AO)) v Secretary of State for the Home Department and another case

 

In this case there where two claimants. O was a child who did not apply for citizenship as his mother could not afford the fees. The second claimant was a charitable organisation.

 

An application for Judicial Review was made on the basis that the Secretary of State by setting the fee at £1012, when the estimated true processing cost was £372, they had breached their duty under Section 55 of the Citizenship and Immigration Act 2009.

 

The Administrative Court sided with the Claimants and held that the Secretary of state had breached their duty under the Act. They appealed the decision and the matter was considered by the Court of Appeal.

 

The Court of Appeal allowed the Secretary of State’s appeal and the Claimant’s appealed to the Supreme Court.

 

The Supreme Court when considering the case had to ‘seek the meaning of the words which Parliament used’ in the British Nationality Act 1981 and in the Immigration Act 2014.

 

The Immigration Act 2014 authorises the Secretary of State to set the fees, however the Act does not impose any criterion of affordability. Instead, it expressly empowered the Secretary of State to set fees at levels which:

 

  • took account of benefits likely to accrue from citizenship and;
  • could subsidise the cost of the exercise of other functions in connection with immigration or nationality, thereby moving part at least of the financial burden of such functions from the UK taxpayer to the applicants.

 

The Supreme Court concluded that the Secretary of State where acting lawfully in charging fees for citizenship applications. They  stated that that ‘The appropriateness of imposing the fee on children who applied for British citizenship under BNA 1981 s 1(4) was a question of policy which was for political determination. It was not a matter for judges for whom the question was the much narrower one of whether Parliament had authorised the Secretary of State to set the impugned fee at the level which it had been set’.

 

Accordingly, the Claimant’s appeal was dismissed.

 

Our Comments

 

It appears that for the foreseeable future, the Secretary of State will continue to ignore affordability in relation to fees that children are charged for their application for citizenship.

 

When considering that the true cost of processing such applications amount to £372, we hope that the Secretary of State review their policy on their own accord so that children are not prevented from becoming British Citizens due to affordability.

 

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