Case Report: R v Secretary of State for the Home Department

In this article Eniyoma discusses the complex issues surrounding government policy and legal interpretation.

Background:

This issue at hand in this case was whether it is legal for the Secretary of State to make the
registration of a child as a British citizen conditional on the payment of £1,012. Here, a group
of people, who came together under the name ‘The Project for the Registration of Children
as British Citizens’ (PRCBC), appealed to the Supreme Court after having their argument, that
seeing as the fee is unaffordable for many children it makes their statutory right to be
registered as British citizens meaningless in practice, be rejected by the High Court and Court
of Appeal. The main legal issue at hand here is how children receive British citizenship and
whether it is legal for the Secretary of State to charge money for this. There are 3 main ways
for a minor to receive citizenship under the 1981 Act: firstly, “if at the time of birth their
father or mother is a British citizen or is settled in the UK,” secondly, if, “their father or
mother becomes a British citizen or becomes settled in the UK, and an application is made
for registration as a British citizen,” or thirdly, if the Secretary of State decides to give a
minor citizenship, as she sees fit. All of these are reliant on the payment of a fee, which can
be in excess of administrative fees, so long as they, among other things, “promote economic
growth,” or reduce, “the costs of exercising any other function in connection with
immigration or nationality. In the end, the judges, Lord Hodge, Deputy President, Lord
Briggs, Lord Stephens, Lady Rose and Lady Arden all unanimously agreed, with only Lady
Arden adding a slight caveat to the explanation given by the others.

Proceedings:

Richard Drabble, the QC for the appellants, argued that seeing as many children are unable
to pay the fee necessary to be registered as a British citizen, they are unable to exercise their
statutory rights and it is therefore illegal for those fees to be in place in that manner. He
goes on to argue that the right to citizenship has been rendered nugatory by the high-level
of the fees and that the subordinate legislation, which set the fees, is therefore ultra vires.
Another argument put forward was that by implementing these fees, the Secretary of State
failed to act in her duty under section 55 of the 2009 Act which safeguards and protects the
welfare of children, in relation to immigration, asylum and nationality. At the High Court,
although this argument was granted, the claim that it was ultra vires was quashed on the
basis that he was bound by the decision of the Court of Appeal in R (Williams) v Secretary of
State for the Home Department.
Throughout the trial, Drabble relied on an earlier ruling by the Supreme Court in which the
introduction of fees for employment tribunals were illegal on the grounds that they were not
affordable, and used this to argue that the same should be the case in immigration –
especially pertaining to children. In the previous case, Lord Reed stated that such fees would
be illegal, “if there is a real risk that persons will effectively be prevented from having access
to justice.”
The opposing argument was, however, that the implementation of fees for the registration
of citizenship was entirely legal as set out by Section 42(1) of the 1981 Act which requires
the prescribed fee to be paid before a person could be registered under any provision of that
Act as a citizen. Moreover, the 2006 Act allowed the Secretary of State to set the fees in
excess of administrative costs, with the following 2007 Act making it so any excess fees
would be used to subsidise the costs of immigration and nationality. Indeed, the 2014 Act
expressly stated that although waivers or adjustments could be made for children, this
power solely lay with the Secretary of State, not Parliament.

Judgement:

Lord Hodge, with whom Lord Stephens, Lord Briggs and Lady Rose all agreed, ruled that the
appeal should be denied. His reasoning for this was that the, “appropriateness of imposing
such a fee on children is a question of policy for political determination.” In essence, Lord
Hodge argued that the crux of the matter – whether it is right for children to be forced to
pay a fee to become British citizens is, as it is a matter of policy, under the purview of
Parliament and not a matter for the court. Indeed, he goes on to say that the only role of the
courts is to determine whether Parliament gave the Secretary of State the authority to
impose such fees, not the manner in which this power is executed. It is for this reason, and
the fact that the Secretary of State did follow the rules for imposing fees which are in excess
of administrative costs, that Hodge ruled against the appellants.
Lady Arden agreed with Lord Hodge’s decision, only adding that statutory interpretation
must be in accordance with the balance of power between the courts and Parliament and
that pre-legislative material supports the fact that Parliament has the right to determine the
rules regarding the Secretary of State’s authority regarding fees on immigration.

Commentary:

I believe that although the ruling seems harsh and inhumane, the ruling was the correct one
as no new precedents are set which can create conflicts of power. Lord Hodge was correct in
saying that the crux of the matter in this case regards policy, which is under the jurisdiction
of Parliament, rather than any legal interpretation. Although many would argue that the
judges should have ruled differently and that they merely side-stepped the issue and left if
for a future case, I disagree. Had the courts made a different decision, the impact of this, and
the precedent it would’ve set, would’ve been immense and contradictory. It would have
allowed the courts to make decisions on the authority of the Secretary of State and, by
extension, Parliament which could surely be exploited. Once the courts make such a bold
limit on the authority of Parliament in determining the process for immigration, it would be
far too easy, and set a precedent for, further limitations on Parliament’s power. Thus, it is
clear that the ruling, however inhumane it may seem, was the correct one as the courts
needed to maintain the balance of power and let the matter of fees be decided by
Parliamentary Acts, rather than the judicial process.