Brand

Immigration Solicitors London

Est. 2002

+44 (0)20 7038 3980

info@rlegal.com

RLegal Solicitors, 162-168 Regent Street London W1B 5TG

RLegal is regulated by the SRA, Reg No: 00380691

On 18 February 2021, the Court of Appeal handed down its judgment between,

The Project For The Registration of British Children As British Citizens (PFRBC) and The Secretary of State For The Home Department [2019] EWHC 3536 (Admin)

The issue was whether the Home Office application fee of £1012 for the registration of a child under the British Nationality Act 1981 (BNA 1981) was lawful.

Judgement in PFRBC and The Secretary of State For The Home Department

The Court of Appeal affirmed the earlier decision by Judge Jay in the High Court [2020] 1 WLR 1486, that the Secretary of State had failed to comply with her statutory duty under S. 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act), to

‘safeguard and promote the welfare of children who are in the United Kingdom discharging any functions in relation to immigration, asylum and nationality’.

The decision has forced the Secretary of State to reconsider whether the current level of fees breached S 55 of the 2009 Act, but it is unclear what the Secretary of State will do – it is possible a review will be done and conclude the current level of fees are appropriate but it is a little hard to imagine the fees being revised down and if so by a significant amount.

It should be noted the Court of Appeal objected to the relatively thin evidence by the Secretary of State to justify the fees, through what can be described as a self-serving statement of a senior official and no other practical evidence of what steps had been taken to support the level of fees.

The case will proceed to the Supreme Court for it to decide whether the current fee structure is unlawful on another avenue, due to a potential conflict between primary and secondary legislation which was dismissed by the Court of Appeal. So even if the Secretary of State justifies the current level of fees, it could still be subject to revision.

Potential categories for child registration for British citizenship this applies to

The judgement in the Court of Appeal applies to the following categories of registrations for children under the British Nationality Act 1981 (BNA 1981):

  • S 1 (3), a child born in the United Kingdom after 1 January 1983 and whilst a minor, to a parent who becomes British or settled.
  • S 1 (4), a child born in the United Kingdom and who lives here for the first 10 years and have not been absent for more than 90 days from the UK
  • S 3 (1) discretion by the Secretary of State to confer British citizenship on a child whilst a minor
  • S 3 (2) to a child born outside the United Kingdom to British citizens
  • S 3 (5) to a child born outside the United Kingdom to a parent who lived in the UK for 3 years.

Please note, the above categories are not a comprehensive list for child registration but are the main ones.

For further advice on which category your child falls into or whether your child is eligible to apply for child registration or, an adult can apply for British nationality please contact one of our immigration lawyers.  

Ultra vires argument

The court rejected the claim the fee structure set by the 2017 and 2018 Fees Regulations could not go beyond that set in the Immigration Act 2014.

However, the court noted the fee level was high and had,

‘a serious impact on the ability of a significant number of children to apply’.              

It referred to earlier case law that noted citizenship brings many benefits such as integration to the community, the right to vote and live and work in the UK.

The cost of processing an application is £372 and £670 is used to ‘subsidise’ other parts of the immigration system.

This argument will proceed to the Supreme Court in due course.

A point to note will be whether the Home will be required to show how the £372, but perhaps more importantly, how the £670 is used within the immigration system. If Parliament intended higher fees could be charged, then one would assume the Secretary of State will need to show how this is channelled back into the immigration system – the immigration lawyers are probably onto this!

Also, if the case succeeds on this point in the Supreme Court, it opens the question as to whether challenges will be brought to other fee levies in the immigration system - the most obvious challenge could be brought through the fee for child dependants.

It is worth noting this case represents a notable push back to the charging structure in UK immigration – approximately 25 years ago there was no charging system and where there were, it was relatively low. It raises the possibility of challenges based on public policy arguments, we will have to wait and see how this pans out.

What we can do

We are firm of specialist accredited immigration solicitors based in central London and regularly assist with both child and adult applications for nationality.

If you considering registering a child or indeed applying to naturalise as a British citizen as an adult, we can assist.

You can contact us completing our online form, sending an email to info@rlegal.com or telephoning us on +44 207 038 3980 and one of our lawyers will respond to you.