New Judgment: R (on the application of O (a minor, by her litigation friend AO)) (Appellant) v Secretary of State for the Home Department (Respondent) R (on the application of The Project for the Registration of Children as British Citizens) (Appellant) v Secretary of State for the Home Department (Respondent) [2022] UKSC 3

On appeal from: [2021] EWCA Civ 193

This appeal concerned whether subordinate legislation was ultra vires because it set the fee at which a child or young person could apply to be registered as a British citizen at a level which many young applicants have found to be unaffordable.

The first claimant, O, was born in the United Kingdom in July 2007, attends school and has never left the UK. She has Nigerian citizenship, and applied to be registered as a British citizen in 2017 but was unable to afford the full amount of the fee, which was £973 at that time. Because the full fee was not paid, the Secretary of State refused to process O’s application.

The Immigration Act 2014 empowers the Secretary of State to set the fees for applications to obtain British citizenship in subordinate legislation, having regard only to the matters listed in section 68(9) of the 2014 Act. Those matters include not only the cost of processing the application but also the benefits that are likely to accrue from obtaining British citizenship and the costs of exercising other functions in relation to immigration and nationality. The current level of the fee produces a substantial surplus, over the administrative cost of processing an application to be applied, to subsidise other parts of the immigration and nationality system.

The appellants challenged the level of the registration fee on the basis that the Secretary of State did not have the power to set the fee at a level which rendered nugatory the underlying statutory right to become a British citizen conferred by the 1981 Act.

 

Held- Appeal dismissed.

The court explained that the issue on this appeal is one of statutory interpretation: whether Parliament has authorised in primary legislation the imposition by subordinate legislation of the challenged fee.

Lord Hodge considered the appellants’ submissions. He noted that the appeal is not concerned with fundamental or constitutional common law rights, nor are any Convention rights under the Human Rights Act 1998 engaged. The special rules of construction that are applicable when the principle of legality is infringed or the constitutional right of access to the courts is intruded upon therefore do not apply. The appellants’ argument based on the constitutional right of access to the courts therefore had no application to the present case.

The appellants argued specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act, a rule identified in the case of R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (“JCWI”). The court explained that an earlier statute (“statute 1”) can be expressly or impliedly amended or repealed by Parliament enacting a later statute (“statute 2”), including by empowering the executive branch of government to make subordinate legislation which impinges upon and even removes rights conferred by statute 1. Where statute 2 authorises subordinate legislation, the court’s task is to ascertain the scope of the enabling power contained in statute 2. In doing so the court will take into account assumptions or presumptions such as the principle of legality. If the court concludes that statute 2 has empowered the executive to make subordinate legislation which has the effect of removing rights conferred by statute 1, the rule in JCWI identified by the appellants imposes no additional hurdle. And where the court is not dealing with an interference by statute with a common law constitutional right or with a statutory provision which declares such a fundamental or constitutional right, the normal rules of statutory interpretation apply.

Applying those principles, Lord Hodge concluded that, in the 2014 Act, Parliament authorised the subordinate legislation by which the Secretary of State has fixed the relevant application fee. The appropriateness of imposing the fee on children is a question of policy which is for political determination, and not a matter for the court.

Lady Arden agreed with Lord Hodge but explained that she considers there is a wider role in statutory interpretation for pre-legislative materials. Lady Arden observes that the constitutional reason Lord Hodge gives for the courts not using explanatory notes no longer applies insofar as explanatory notes are now often published by commercial publishers and appear online free of charge. Lady Arden also considers that there are occasions when pre-legislative material may go further than simply provide the background or context for the statutory provision in question. In appropriate circumstances such materials can also considerably help the judge better to perform his or her role of finding the intention of Parliament in any particular enactment, for example when such materials reveal that the language of the statute – perhaps thought to be clear on its face – is in fact ambiguous.

 

For a PDF of the Judgment, please see: Judgment (PDF)

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23 June 2021   Morning session   Afternoon session

24 June 2021   Morning session

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