On 18 February 2021, the Court of Appeal in PRCBC & O v Secretary of State of the Home Department [2021] EWCA Civ 193 decided that the fee of £1,012 for certain applications by children to register as British citizens is unlawfully high.

Who does this affect?

The case concerns the entitlement of children to register as British citizens under certain sections of the British Nationality Act 1981. 

The 1981 Act sets out the circumstances in which children can register as British Citizens. The judicial review applications referred to applications made by children in circumstances where they were born in the UK but were not entitled to British citizenship from birth:

• if a person is born in the UK to a non-British citizen who is not settled here, but their parent becomes a citizen or settles in the UK before the child reaches the age of 18 and an application is made, they are entitled to be registered as a British citizen (s.1(3));
• alternatively, under section 1(4) of the Act, a child can apply for citizenship if they were born in the UK and lived here continuously until they were 10 years old with no absence of over 90 days per year in any of their first 10 years;
• section 3 of the Act says that the Secretary of State is also entitled to grant applications for citizenship on other grounds using a discretionary power (s.3(1)).

The proceedings in the High Court

The Court of Appeal decision arose out of applications for judicial review brought in 2019 by the Project for the Registration of Children as British Citizens (PRCBC), and two children (A and O), challenging the fee of £1,012 for naturalisation applications by children. 

They argued that the Home Office had acted unlawfully in setting the fee for two reasons:

• firstly, because the Secretary of State had not fulfilled her statutory duty to consider the best interests of the children affected by the level of the fee charged, and;
• secondly, the fee was unlawful because it was so unaffordably high that it effectively deprived a significant number of children of their statutory right to apply to become a British citizen.

Amongst other things, the High Court considered evidence that the actual cost to the Home Office in processing an application is £372, with the surplus to be applied to subsidise other parts of the nationality, immigration and asylum system.

The High Court decided that the Secretary of State had not considered the best interests of children in setting the fee, in breach of her obligation to do so under section 55 of the Borders, Immigration and Citizenship Act 2009.  

The High Court found against the claimants on the second ground because it considered that it was bound by the earlier decision in R (Williams) v SSHD [2017] EWCA Civ 98, [2017] 1 WLR 3283, which held that a fee could lawfully be charged even if it was impossible for an applicant to pay.

The proceedings in the Court of Appeal

The Secretary of State challenged the High Court’s decision that she had not fulfilled her statutory duty to consider the best interests of children, and PRCBC & O challenged the decision that such a high fee can lawfully be charged.

The Court of Appeal upheld the decision in the High Court on both grounds. In the judgment, Lord Justice David Richards expressed his surprise that the Secretary of State had not conducted a review required by statute.

What does the decision mean?

The Home Office should now reconsider the level of the fee, taking into account the best interests of children. There is no indication of when this reconsideration will take place but the Secretary of State indicated to the Court that it was unlikely that the fee would have been set at a different level, even if the best interests of children had been taken into account.

What will happen next?

The case is ongoing as PRCBC & O have permission to appeal the second part of the decision to the Supreme Court.  

In the meantime, until the fee is reconsidered by the Home Office, it remains payable at £1,012. PRCBC makes it clear that there is no suggestion that the Home Office will be liable to reimburse all or part of fees already paid, even though they have been held to have been unlawfully decided.  

This is a very significant case affecting many children in the UK who have been prevented from gaining British citizenship because of the unlawfully high fees. Many congratulations to the Project for the Registration of Children as British Citizens (PRCBC) and all the legal team involved in bringing this important case.

For more information about our Immigration, Asylum and Nationality team and the services we provide, visit our web page here. 

This article was written by Elisabeth Attwood, Paralegal in the Immigration team.