R (O (a minor) by her litigation friend AO) v Secretary of State for the Home Department [2022] UKSC 3 (2 February 2022)

A child challenged the £1,012 fee for registration as a British citizen under section 1(4) of the British Nationality Act 1981 as ultra vires, arguing it rendered the statutory right to citizenship nugatory for those unable to afford it. The Supreme Court dismissed the appeal, holding Parliament had authorised the fee-setting regime.

Facts

O, born in the UK in 2007 to a Nigerian mother, became entitled at age ten to register as a British citizen under section 1(4) of the British Nationality Act 1981. Her mother, a single parent on state benefits, could not afford the £973 fee (later £1,012), which substantially exceeded administrative costs and was designed to subsidise other immigration functions. The Secretary of State refused to process the application without full payment.

Background to the Fee Regime

The Immigration Act 2014 authorised the Secretary of State to set fees exceeding administrative costs, having regard to benefits accruing from citizenship and costs of other immigration functions. Section 68(9) limited the factors the Secretary of State could consider when setting fees. The fee was subject to a maximum specified in fees orders approved by Parliament through the affirmative resolution procedure.

Issues

Whether the fees regulations setting registration fees for children were ultra vires the rule-making power in section 68 of the Immigration Act 2014, on the basis that fees at unaffordable levels rendered nugatory the statutory right to citizenship under section 1(4) of the 1981 Act.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Hodge, delivering the leading judgment, held this was a question of statutory interpretation concerning whether Parliament had authorised the impugned fees.

The Principle of Legality

Lord Hodge distinguished cases involving fundamental common law rights, such as access to justice. He stated:

Because, as is not disputed, we are not concerned in this appeal with fundamental common law rights, the special rule of construction, which is embodied in the principle of legality, has no application.

The JCWI Principle

Addressing the principle from R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants that specific statutory rights are not to be cut down by subordinate legislation under a different Act, Lord Hodge clarified:

If the court, having taken into consideration the established assumptions or presumptions concludes that statute 2, expressly or by necessary implication, has empowered the executive to make subordinate legislation which has the effect of removing rights conferred by statute 1, the principle enunciated by the Court of Appeal in JCWI imposes no additional hurdle for the Secretary of State.

Parliamentary Authorisation

The Court found the 2014 Act expressly empowered fee-setting that exceeded administrative costs and could subsidise other immigration functions, without imposing affordability criteria. Lord Hodge concluded:

It follows in my view that in the 2014 Act Parliament has authorised the subordinate legislation by which the Secretary of State has fixed the impugned fee for the application to be registered as a British citizen under section 1(4) of the 1981 Act.

The requirement to pay fees was part of the statutory scheme from its inception, making registration conditional upon payment.

Implications

This decision confirms that where Parliament expressly authorises a fee-setting regime in primary legislation, courts will not intervene on vires grounds simply because fees are unaffordable for some applicants. The appropriateness of fee levels is a policy matter for political determination, not judicial review. The judgment also clarifies the limits of the UNISON principle regarding access to justice, confining it to cases involving fundamental common law rights.

Verdict: Appeal dismissed. The fees regulations setting the registration fee for children at £1,012 were held to be within the powers conferred by Parliament in the Immigration Act 2014.

Source: R (O (a minor) by her litigation friend AO) v Secretary of State for the Home Department; R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3 (2 February 2022)