Project for the Registration of Children as British Citizens v Secretary of State for the Home Department (PRCBC) concerned a challenge to the lawfulness of fees charged to children applying to be registered as British citizens. The fees have a serious adverse impact on the ability of many children to apply for registration. As David Richards LJ explained in his leading judgment:
A significant number of children, and no doubt the majority growing up on low or middle incomes, could only pay the fee by those acting on their behalf being required to make unreasonable sacrifices (para 31).
The fees were declared unlawful on the basis that the Secretary of State failed to discharge her statutory duty to consider the effect of the fee on the welfare of children. However, the case is notable for the approach adopted by the court to the question of whether the fees were ultra vires. The Court of Appeal interpreted the Secretary of State’s power broadly, effectively rendering the fees invulnerable to challenge on ultra vires grounds.
After outlining the factual background and summarising the decision, I explain three problems with the reasoning underpinning the decision. Ultimately, the decision of the Court of Appeal wrongly implies that to the extent that executive power is not expressly limited by Parliament, it is unlimited.
Section 1(4) of the British Nationality Act 1981 (the 1981 Act) states that a person born in the United Kingdom shall be entitled, on application, to be registered as a British citizen if they have lived in the UK for the first 10 years of their life. The claimant satisfied the conditions in section 1(4). She applied for her registration as a British citizen. However, her mother was unable to pay for her application (£973).
She challenged the legality of the Immigration and Nationality (Fees) Regulations 2018 (the Fees Order), the secondary legislation passed by the Secretary of State to introduce the fees. The Fees Order was enacted pursuant to section 68 of the Immigration Act 2014 (the 2014 Act). Section 68(9) provides that in determining the level of the fee, the Secretary of State may only have regard to certain stated considerations. It does not provide an express limit on the level of the fee.
Both the High Court and Court of Appeal dismissed an argument that the legislation was ultra vires, holding that the payment of a fee imposed by delegated legislation was simply a pre-condition for the existence of the statutory right to apply for citizenship. In the Court of Appeal, David Richards LJ held that “Parliament had chosen to create the right to apply for registration subject to the requirement to pay a fee” (para 63).
The court considered itself bound by R (Williams) v Secretary of State for the Home Department. Williams also concerned a challenge to the vires of the fee fixed for applications under section 1(4) of the 1981 Act. In Williams, counsel had conceded that the Secretary of State “could not simply stipulate an application fee of, say, £1 million”. However, Davis LJ maintained that it did not follow from this concession that “the statutory scheme cannot be exercised in such a way as to frustrate or defeat applicants … who are destitute and unable to pay” (Williams, para 50). Davis LJ did acknowledge that the fee could, in principle, be ultra vires if it bore no relation to the benefits that are likely to accrue to the applicant. The fee would then conflict with the criteria set out in s.68(9) (Williams, para 50). However, the judgments in PRCBC rely on Williams as the basis for refusing to engage in any meaningful inquiry regarding the legality of the Fees Order. PRCBC effectively immunises the Fees Order from challenge on ultra vires grounds.
Cutting down primary statutory rights
Even where a power to make regulations is not expressly limited, a reviewing court should nevertheless inquire into whether the subordinate legislation “has an effect, or is made for a purpose, which is ultra vires, that is, outside the scope of the statutory power pursuant to which it was purportedly made” (R (on the application of The Public Law Project) v Lord Chancellor, para 23, Lord Neuberger). So, for example, secondary legislation will be ultra vires if it makes the case that there are no longer any right-holders of a primary statutory right, since it would effectively legislate primary rights out of existence. It follows that if the fee charged was, in theory, so high that it became impossible for anyone to pay, it would be ultra vires. In other words, there is a legal limit on the level of the fee.
Similarly, the imposition of an “unaffordable” fee is arguably tantamount to the introduction of an “unmeetable” condition. In principle, then, the Fees Order cannot legislate a primary right out of existence by excluding too many potential right-holders from its scope. That would be contrary to the purpose of the primary legislation which introduced the statutory right. Of course, implicit in this argument is an assumption that when Parliament passes legislation creating a statutory right, it intends that the law will not be meaningless; it intends that some individuals will in fact be right-holders.
Arguably, the Home Office’s “hostile environment” policy gives the lie to any assumption that Parliament intends to enable applications for citizenship under s.1(4) of the 1981 Act. However, the “hostile environment” policy measures are aimed at deterring illegal immigrants from settling in the UK. By contrast, s.1(4) of the 1981 Act is not concerned with deterring people from settling in the UK illegally. Rather, the intention behind the 1981 Act was to preserve the entitlement of people with valid connections to Britain to register as British citizens, whilst making it more difficult for people born in Britain but who otherwise have no meaningful connection to the UK to become British citizens. Therefore, whatever one’s views about the “hostile environment”, the policy does not provide a legitimate basis for interpreting s.1(4) restrictively, so as to make it more difficult for children born in Britain to satisfy the conditions required to become British citizens.
It follows from the argument in this section that the power to impose a fee is not invulnerable to challenge on ultra vires grounds. Once it is accepted that the power to impose a fee is not unlimited, the next question concerns the appropriate test for determining whether any given fee is lawful. It may be that the fee will only be unlawful if it makes it impossible for anyone to make an application. Alternatively, the threshold for illegality may lower, such that the Fees Order will be unlawful if it denies the right to all but a very small number of potential applicants. The difficulty with the decision in PRCBC is that the Court of Appeal failed to even consider the question of what standard should be applied to determine the legality of the Fees Order. As David Richards LJ put it, again relying on Williams: “It makes no difference … if ‘not reasonably affordable’ is substituted for ‘impossible’” (para 66).
Unaffordability and impossibility
Relying on R (UNISON) v Lord Chancellor, the claimant argued that the applicable test for determining the legality of a fee is whether the fee makes applications for citizenship unaffordable – in the sense that the fee precludes people on low or middle incomes from obtaining the benefit of the right unless they sacrifice an acceptable standard of living (UNISON, para 93, Lord Neuberger). This contrasted with the standard applied by the Court of Appeal in Williams: namely, whether the level of fee is such that it is impossible for a potential right-holder to pay.
The impossibility standard applied in Williams poses difficulties when applied to determining the lawfulness of fees. In upholding the legality of the fee in Williams, Davis LJ stressed the “important consideration” that destitution is not a “permanent state” (Williams, para 51). Accordingly, it was held that the imposition of an unaffordable fee did not make it impossible for those with low means to apply for citizenship; it was more akin to a “postponement” of their ability, and therefore their entitlement, to apply for citizenship. In other words, so long as it is not impossible for potential applicants to meet the requisite condition in the future, the present legality of the legislation remains intact.
In one sense, this reasoning implicitly accepts that there is a limit to the conditions which can be imposed by the Secretary of State. A claimant’s potential future ability to meet the condition was relevant insofar as it showed that the conditions for citizenship, which included the impugned fee, where not unmeetable, and therefore were not unlawful. To introduce a fee or other condition with which it is “impossible” to comply would be tantamount to introducing an “unmeetable” condition.
However, so long as an applicant’s potential future ability to pay a fee is factored into account when determining their present ability to pay, it will never be “impossible” for an applicant to meet a requirement to pay a fee. If applicants are eligible to enter the lottery, it is possible that they will be able to pay the fee tomorrow. Therefore, the Williams impossibility test runs into the same problem outlined in the previous section of this blog post: secondary legislation cannot legislate primary rights out of existence. If the fee will only be unlawful if it fails to meet the impossibility standard, it will never be unlawful.
The Court of Appeal in PRCBC therefore applied a test that is inconsistent with the principle that secondary legislation cannot legislate primary rights out of existence. That principle demands an inquiry into the number of people secondary legislation can lawfully exclude from the scope of a primary statutory right on the basis of inability to pay.
An impossible choice: destitution vs ability to exercise a statutory right
A further problem with the decision in PRCBC concerns the application of the decision of R v Secretary of State for Social Security, Ex parte Joint Council for the Welfare of Immigrants (JCWI). In that case, the Court of Appeal declared unlawful regulations which placed asylum seekers “at the horns of an impossible dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution” (JCWI, para 293C, Simon Brown LJ). JCWI concerned regulations which removed entitlements to social welfare from certain categories of asylum seeker. The regulations were unlawful on the basis that “rights necessarily implicit in the Act of 1993 are now inevitably being overborne” by delegated legislation (JCWI, para 293C, Simon Brown LJ).
The statutory right in JCWI was curtailed ex post by secondary legislation passed pursuant to a different statutory scheme. By contrast, in PRCBC, the Fees Order imposed ex ante conditions on the existence of a statutory right. Nevertheless, in his concurring judgment in PRCBC, Singh LJ stated that the principle enunciated in JCWI is not limited to cases in which there is subordinate legislation made under different primary legislation (PRCBC, para 121). Despite this, the court took the view that the decision in Williams precluded any meaningful consideration of submissions based on JCWI (paras 63 and 124).
JCWI is authority for the proposition that secondary legislation cannot place individuals in a situation where they are forced to choose between destitution and having the ability to exercise their statutory rights. The Court of Appeal in PRCBC rejected the claimants’ submissions based on JCWI. David Richards LJ reiterated the view that since the existence of the right to apply for citizenship is conditional upon the payment of a fee, the fact that some cannot pay the fee just means that they do not have the right (para 63). However, if the ability to exercise a statutory right cannot lawfully be made conditional upon lack of poverty by delegated legislation, then it is arguable that, at least without express legislative authorisation, entitlement to statutory rights cannot be made conditional upon lack of poverty by delegated legislation.
At the level of principle, there is generally no justification for conditioning entitlement to statutory rights on a potential right-holder’s lack of poverty. Equality before the law requires an equal distribution of legal rights. One person should not have double the number of votes than the next, simply because he is wealthier. Equally, the benefits of equality before the law will be undermined if the rights which are distributed equally amongst citizens (such that, for example, each citizen carries one vote) do not carry equal weight (because the votes of some are more valuable that the votes of others).
This argument is grounded in the idea that rights held by citizens should carry equal worth in order for the state’s authority to be justified (see Rawls, Political Liberalism (Columbia University Press, 1995) p. 327). However, the same reasoning is applicable to a statutory regime which applies to non-citizens. Where the law creates a right for non-citizen long-term residents to apply for citizenship, that law will undermine the principle of equality before the law if it makes the legal rights contained within it conditional upon lack of poverty.
Returning to the statutory scheme at issue in PRCBC, although the 2014 Act stipulates a requirement to pay a fee, the 2014 Act obviously does not expressly contemplate the introduction of a fee that would be unaffordable to most people on low or middle incomes. On the contrary, the availability of a power to introduce exemptions or waivers provides support for the view that Parliament did not intend that potential applicants would be forced to choose between forgoing their application or forgoing an acceptable standard of living. In the language of JCWI, if the Fees Order places applicants in a position where they face this “impossible dilemma”, it would be unlawful, notwithstanding that the primary legislation contemplates a fee of some kind.
This argument is supported by a consideration of the intention behind the 1981 Act, which was to safeguard the entitlement of people with long-term, meaningful, connections to Britain to register as British citizens. It could scarcely be possible to contend that inability to pay the application fee without having to make unreasonable sacrifices makes an individual less connected to Britain. A purposive reading of the statutory scheme therefore supports the view that entitlement to British citizenship should not be conditional upon ability to pay the application fee.
Finally, the argument finds further support in the Court of Appeal’s acceptance that the right to apply for citizenship is “an important statutory right” (para 32, David Richards LJ). In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, Lord Hoffmann stated that “general or ambiguous words in legislation will not readily be construed as intended to remove such a right” (para 45). Accordingly, it follows that delegated legislation which makes the right to apply for citizenship unaffordable will be ultra vires in the absence of express authorisation in primary legislation.
The Immigration Act 2014, which empowered the Secretary of State to charge a fee, did not expressly limit the level of fee. Nevertheless, public law powers are implicitly limited by the purpose of the statutory scheme under which they are granted. The Court of Appeal should have inquired into whether the Fees Order effectively legislated a primary statutory right out of existence by excluding too many potential right-holders from its scope. Hopefully the Supreme Court will enter into such an inquiry later this summer, when it hears an appeal from the decision of the Court of Appeal.
My thanks to Professor Alison Young, Professor Michael Gordon, and Alan Eustace, for helpful comments on earlier versions of this blog post.
Alastair Richardson, Student at the Inns of Court College of Advocacy
(Suggested citation: A. Richardson, ‘The Legality of Home Office Fees’, U.K. Const. L. Blog (26th May 2021) (available at https://ukconstitutionallaw.org/))