Williams, R (on the application of) v The Secretary of State for the Home Department [2017] EWCA Civ 98

Case No C4/2015/1829[2017] EWCA Civ 98
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
Venue SITTING IN BIRMINGHAM
MR JUSTICE HICKINBOTTOM
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/02/2017
Before
LORD JUSTICE DAVISLORD JUSTICE UNDERHILLLADY JUSTICE MACUR
Between
R (on the application of WILLIAMS)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Stephen Knafler QC and Yaaser Vanderman (instructed by Birmingham Community Law Centre) for AppellantJames Eadie QC and William Hansen (instructed by the Government Legal Department) for RespondentHearing Hearing dates: 18&19 January 2017
Judgment

Introduction

[1]For very many years individuals applying for registration as a British citizen have been required to pay a fee for that purpose. The practice has in general terms a clear and obvious justification. But what happens when an individual, otherwise entitled to registration as a British citizen, is unable to pay the requisite fee? That is the issue thrown up by this case. It in fact arises in the context of a child receiving support under the provisions of s. 17 of the Children Act 1989 and who, at the relevant time, was by reason of destitution unable to pay the fee required for an application under s. 1(4) of the British Nationality Act 1981.[2]It is the position of the respondent Secretary of State that under the relevant legislative provisions in force at the time she was entitled to reject the application on grounds of non-payment of the fee. It is the position of the appellant that such a result is legally unsustainable. That is said to be so on four grounds, advanced as alternative arguments.(1) First, it is said that the operation of the legislative scheme without an available power of fee exemption or waiver for cases such as the present was beyond the powers conferred on the Secretary of State by the primary legislation (“the ultra vires ground”);(2) Second, it is said that such a result operated unjustifiably to breach the appellant’s rights under Article 8 of the European Convention on Human Rights (“the Article 8 ground”);(3) Third, it is said that such a result gave rise to unjustifiable discrimination contrary to the appellant’s rights under Article 14 of the Convention (“the Article 14 ground”);(4) Fourth, it is said that such a result contravened common law principles of legality (“the common law ground”).[3]The decision of the trial judge, Hickinbottom J, was contained in a very detailed and careful reserved judgment handed down on 11 May 2015: [2015] EWHC 1268 (Admin). It was adverse to the appellant on all grounds. The judge refused permission to appeal; but permission was granted on the papers by Underhill LJ on 22 October 2015.[4]Before us the appellant was represented by Mr Stephen Knafler QC (who also appeared below) leading Mr Yaaser Vanderman. The respondent Secretary of State was represented by Mr James Eadie QC leading Mr William Hansen (both of whom appeared below). I would like to acknowledge the thoroughness and care with which the respective arguments, both written and oral, were presented.

Background Facts

[5]The relevant facts can be very shortly stated for present purposes.[6]The appellant, Ric Williams, was born in Stoke-on-Trent on 20 September 2003. He is the child of parents who are both Jamaican nationals. (It was common ground before us that he would himself be entitled to claim Jamaican citizenship.) The parents had arrived in the United Kingdom on 4 August 2002, with leave to enter as visitors. Thereafter various extensions on various bases were granted: and the appellant was born when they were lawfully present in the United Kingdom. From 5 March 2010, however, their leave expired. They nevertheless stayed on, with no legal entitlement to work or to benefits. No removal directions were ever set, however.[7]The appellant himself has remained in the United Kingdom throughout this entire period. Without going into detail, it also may be added that he has certain particular needs. He has from the age of 3 been attending various special classes and schools.[8]On 11 March 2014, after the appellant had been continuously resident in the United Kingdom for over 10 years, an application for British citizenship was submitted on his behalf. At that time the required fee was £673. It was not provided with the application. It is accepted that he and his parents could not afford it. They had no money. In fact, from 31 July 2013 they had been living in accommodation provided by Sandwell MBC, the relevant local authority, at an address in Smethwick. This had been provided by the local authority, by reference to the appellant’s needs, pursuant to its obligations under s. 17 of the Children Act 1989 (“the 1989 Act”).[9]The application was rejected by letter of 17 March 2014 on the ground of non-payment of the fee. The letter stated in terms that the fee was prescribed by law and there was no discretion to waive the fee or accept a lesser amount, irrespective of the particular circumstances of the applicant. Re-submission of the application was invited but never happened at that stage. The money simply was not there.[10]A pre-claim letter was promptly sent by solicitors on the appellant’s behalf on 18 March 2014. The rejection of the application was, however, maintained. The claim for judicial review was issued on 12 June 2014. Permission to apply was in due course granted.[11]Shortly before the hearing listed in the Administrative Court in Birmingham before Hickinbottom J on 20 March 2015 the position of the parents, and of the appellant, changed. The appellant himself on 12 February 2015 was granted leave to remain, initially for a period of 30 months, under paragraph 276ADE of the Immigration Rules. Each parent was also on 12 February 2015 granted leave to remain, outside the Immigration Rules, for a similar period of 30 months, with leave to work and with access to benefits. By reason of this change in circumstances, it was accepted that the appellant and his family were no longer to be regarded as destitute for the purpose of the proceedings and it was contemplated that they would in due course be able to raise the requisite fee for the appellant’s citizenship application.[12]This has in fact happened. The application was resubmitted with the required fee. Thereafter the appellant was granted British citizenship – after the decision of Hickinbottom J and after permission to appeal was granted by Underhill LJ – on 5 April 2016. Thus the object of the original proceedings had now, by these means, been achieved: at all events, as between the appellant himself and the Secretary of State there was and is in practice no outstanding dispute. At a hearing convened shortly before the hearing of the appeal this court (Davis LJ and Underhill LJ) ruled that, exceptionally, the court would nevertheless entertain the appeal for the reasons there given: see [2017] EWCA Civ 64.

The legal framework

[13]The legislative framework is set out in meticulous detail by Hickinbottom J in his judgment. Since anyone reading this present judgment will surely have access to that judgment I will not here explicitly replicate that detail, whilst gratefully taking it all on board.[14]The starting point for present purposes can be taken to be s. 1 of the British Nationality Act 1981 (“the 1981 Act”) and, more precisely, s. 1(4). That provides, in the relevant respects, as follows:
“A person born in the United Kingdom… who is not a British citizen… shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.”
[15]Pausing there, it can be seen that those provisions set out a number of requirements if registration of citizenship is to be achieved by this route. First, an application may be made at any time after the applicant has reached the age of 10; second the applicant must have been born in the United Kingdom (albeit not a British citizen): third, the applicant must in that time have lived continuously in the United Kingdom (subject to permitted breaks not exceeding 90 days in each year). By s. 41A of the 1981 Act, as amended, a further requirement was added relating to good character.[16]Thus it is important to note that the scheme in this regard is not simply one of automatic acquisition of citizenship status such as arises for a child born to a British parent in the United Kingdom: see s. 1(1) of the 1981 Act. Rather, it is a right to citizenship which may only be exercised on application made. A similar requirement for an application, as a necessary pre-condition of the grant of citizenship, is for example contained in those categories falling within s. 1(3) and s. 1(3A) of the 1981 Act.[17]As originally enacted, s.

(a) of the 1981 Act provided as follows:

“… a person shall not be registered under any provision of this Act as a citizen of any description… unless… any fee payable by virtue of this Act in connection with the registration… has been paid…”
That provision was replaced, but with corresponding effect, by s. 42A as introduced, as from 1 January 2004, by provisions of the Nationality, Immigration and Asylum Act 2002.[18]So far as payment and collection of fees for applications were concerned, s. 41(2) of the 1981 Act made provision for the making of regulations in that regard. In due course, those regulations as made were also replaced. This was done by provisions contained in the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”) which at the time of the decision relevant to this case was the applicable relevant primary legislation (although I record that it has since itself been replaced in these respects). Those provisions, it is to be noted, extended also to applications made other than under the 1981 Act.[19]Sections 51 and 52 of the 2006 Act provided, in the relevant respects, as follows:
“51. Fees (1) The Secretary of State may by order require an application or claim in connection with immigration or nationality (whether or not under an enactment) to be accompanied by a specified fee. 20. . . . . . (3) Where an order under this section provides for a fee to be charged, regulations made by the Secretary of State — (a) shall specify the amount of the fee, (b) may provide for exceptions, (c) may confer a discretion to reduce, waive or refund all or part of a fee, (d) may make provision about the consequences of failure to pay a fee, (e) may make provision about enforcement, and (f) may make provision about the time or period of time at or during which a fee may or must be paid. . . . . . 52. Fees: supplemental . . . . . (3) An order or regulations under section 51— (a) may make provision generally or only in respect of specified cases or circumstances, (b) may make different provision for different cases or circumstances, (c) may include incidental, consequential or transitional provision, and (d) shall be made by statutory instrument. (4) An order under section 51 — (a) may be made only with the consent of the Treasury, and (b) may be made only if a draft has been laid before and approved by resolution of each House of Parliament. (5) Regulations under section 51 — (a) may be made only with the consent of the Treasury, and (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament” (a) shall specify the amount of the fee, (b) may provide for exceptions, (c) may confer a discretion to reduce, waive or refund all or part of a fee, (d) may make provision about the consequences of failure to pay a fee, (e) may make provision about enforcement, and (f) may make provision about the time or period of time at or during which a fee may or must be paid. (a) may make provision generally or only in respect of specified cases or circumstances, (b) may make different provision for different cases or circumstances, (c) may include incidental, consequential or transitional provision, and (d) shall be made by statutory instrument. (a) may be made only with the consent of the Treasury, and (b) may be made only if a draft has been laid before and approved by resolution of each House of Parliament. (a) may be made only with the consent of the Treasury, and (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament”
[20]The relevant order, for the purposes of this case, as made pursuant to s. 51(1) of the 2006 Act was the Immigration and Nationality (Fees) Order (“the 2011 Order”). That by paragraph 3 stipulated in mandatory terms that an application to which the 2011 Order applied “must be accompanied by the fee specified in regulations made under s. 51 (3) of the 2006 Act.” The 2011 Order extended, by paragraph 3(1)(k), to applications under s. 1(4) of the 1981 Act. The 2011 Order also had, as required, been approved in draft by resolution of each House of Parliament. Thus, overall, while the 2011 Order does not itself mandate that an application fee must be required in all cases it does mandate that, where it is required, it must be paid.[21]Those, then, are the provisions concerning the powers to impose and collect fees. As to the amount of such fees, those were set in regulations made initially under the 1981 Act and then under s. 51(3) of the 2006 Act. At the time relevant to the appellant’s application in this case the relevant regulations were the Immigration and Nationality (Fees) Regulations 2013 (“the 2013 Regulations”).[22]The 2013 Regulations dealt with fees for various kinds of application, including (but not limited to) applications for entry clearance and leave to remain and also including applications for citizenship registration under s. 1(4) of the 1981 Act. In Table 8 of Schedule 4, the fee stipulated, at the relevant time, was £673 for a single application for citizenship under s. 1(4).[23]There were no exceptions provided in the 2013 Regulations for such an application nor was any discretionary power of waiver provided. This was in contrast, for example, with entry clearance applications: whereby, under Table 6 of Schedule 2, a general discretion to waive fees was conferred on the Secretary of State. It was also in contrast with applications for leave to remain: as to which the 2013 Regulations (under Table 3 of Schedule 1) conferred, among other things, an entire exception for paying a fee for an application made in respect of a child being provided with assistance by a local authority.[24]Regulation 6 of the 2013 Regulations had stated that Schedule 4 had effect to specify the amount of fees for specified nationality applications, which extended to applications under s. 1(4) of the 1981 Act. Regulation 9 is in these terms:
“Where these Regulations specify a fee which must accompany an application for the purposes of the [2011 Order], the application is not validly made unless it is accompanied by the specified fee.”
[25]Finally for this purpose reference should be made to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”). That expressly permits, by s. 42, the imposition by the Secretary of State of fees for nationality applications exceeding the actual cost of administering or processing such applications. In other words, the scheme for citizenship applications is not designed solely to be self-financing: by these means, an element of cross-subsidy of the entire border and immigration control system can be achieved. The sums involved are considerable. The evidence before the judge indicated that for 2015 – 2016 around £130 million was estimated to be attributable to fees for nationality applications. It is also to be observed that the 2004 Act, by s. 42(7), required that an instrument made in reliance on the section should first be approved by affirmative resolution procedure by each House of Parliament.[26]Sections 51 and 52 of the 2006 Act have been repealed and replaced by the Immigration Act 2014. There are also, as we were told, now in place a new Fees Order and new Fees Regulations. All these however, post-date the application and decision made in this case and I therefore do not need to consider them.

Observations on statutory scheme

[27]An obvious query arises at this stage. The statutory scheme, at the time relevant to this case, provided for exemptions or a power of waiver with regard to fees in certain instances, including applications for entry clearance and for leave to remain. But no exemption or power of waiver is available with regard to individuals such as the appellant making an application for registration as a citizen under s. 1(4) of the 1981 Act. Why, it may be asked, should that be?[28]An answer is given by Mr Alan Sparks, Head of the Fees and Income Planning Team of the Home Office, in his witness statement dated 9 March 2015. He makes the point that income from fees such as are charged on citizenship applications make a substantial contribution to the cost of operating the immigration border control system. He says that fees for nationality applications “have been routinely charged since around 1870”: with, as I have already said, a total estimated contribution from such applications, for 2015-2016, of around £130 million. He explains why there is and always has been a Government policy against a general discretionary fee waiver for such applications. These include the desirability of such applicants being financially independent; the likelihood of many claims for waiver (costly, difficult and time-consuming to vet) if permitted in principle; and the increased cost for other applicants, who may be required to pay to make up any perceived short-fall, or ultimately for the taxpayer.[29]As to the existence of exemptions and a power to waive for applications for leave to remain and entry clearance, he says that the power of waiver is only exercised in rare circumstances; and exemptions generally only exist to ensure compliance with international obligations (by way of example, with regard to refugees) or with wider policy objectives (such as the protection of spouses from domestic abuse and the protection of vulnerable children). But as to citizenship applications generally he says:
“…the Home Office considers that citizenship is not a necessary prerequisite to enable a person to exercise their convention rights in the UK. Rather, where a person’s rights would be breached by removal it is open to such person to make an application for leave to remain…”
[30]It is nevertheless made clear by Mr Sparks that if there were to be a case where refusal of an application for citizenship would result in a breach of Convention obligations then the fee would not, and could not validly, be charged. Mr Eadie confirmed a concession to that effect both in the court below and before us.[31]The point raised in the present case about fees for applications for citizenship under s. 1(4) of the 1981 seems not to have been raised before for decision in legal proceedings. Such a point has, however, been raised before - under different versions of the regulations - in cases concerning entry clearance and leave to remain applications. The discussion in those cases is instructive. But those cases nevertheless remain different: not least because such cases ultimately related to consideration of whether the insistence on payment of a fee would lead to an infringement of an applicant’s human rights in circumstance which have no direct correspondence with the appellant’s first ground and limited correspondence with his other grounds.[32]Thus in R (Sheikh) v Secretary of State for the Home Department [2011] EWHC 3390 (Admin), the challenge was as to the refusal of the Secretary of State to grant a waiver (where there was a power of waiver) of the required fee for an entry clearance application where the sponsors claimed to be unable to pay the fee, in a case where the individual for whom entry was sought was a child. Sales J dismissed the claim by reference to the facts and circumstances of the case. But he undertook a valuable review of the relevant legal principles and requisite approach.[33]Thus Sales J held that, in principle, charging a fee for such applications was fair and proportionate to the legitimate interests involved (including the economic well-being of the country and the protection of the rights and freedom of others), given the potential benefits to applicants and the cost of administering the immigration system. He indicated that courts should be slow to find “implied positive obligations” inherent in a requirement to waive a fee, which would involve diversion of state resources. Nevertheless, where an applicant had a strong claim by reference to Article 8 whereby insistence on payment of the fee would “set that claim at nought” then an obligation on the Secretary of State under Article 8 may arise: see paragraphs 74 and 75 of the judgment.[34]That approach was in substance adopted by Beatson J in the subsequent case of R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin). That case involved a fee sought to be paid on an application for leave to remain which (as was found) the applicant was unable to pay. The applicant’s right to remain/not to be removed had in fact been recognised on Article 8 grounds by a Tribunal. At that time, however, there was a requirement for payment of a fee without an exemption being available or (so it was said) a waiver being possible. Without a grant of leave to remain the applicant would also have been exposed in principle to criminal liability under s. 24 of the Immigration Act 1971, notwithstanding that by reason of the decision of the Tribunal it would have been unlawful to remove him. This, as Beatson J said, put him in a state of limbo; and it would be contrary to his Article 8 rights for a fee to be required in such circumstances. In the light of this decision, the Home Office in fact subsequently adjusted its stated policy on fees for leave to remain applications.[35]An approach similar to, although perhaps broader than, that of Beatson J was subsequently taken by Stewart J in the case of R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin). In that case, the destitution policy then operated by the Home Office in cases where the (in country) applicant for leave to remain could not afford the fee applied in limited circumstances: whereby the destitution could only, under the terms of the then policy, extend to cases where either the applicant had no adequate accommodation or the applicant could not otherwise meet his essential living needs. It was held that such a policy was too restrictively framed in the case of an applicant claiming an entitlement to remain on Article 8 grounds. Stewart J said this at paragraph 26 of his judgment:
“It seems to me that if a person demonstrates upon proper proof that they cannot pay the fee then a policy which does not provide for waiver in those circumstances is incompatible with a Convention right.”
[36]Against that background, and the background more fully set out by Hickinbottom J, I turn to the grounds advanced in the present case. (1). The ultra vires ground[37]The question here is as to what Parliament has authorised. Mr Knafler and Mr Eadie were agreed that the enquiry ultimately had to be as to what Parliament intended, by reference to the language it has used.[38]I consider, appraising the language of the statutory scheme, that the answer is clear enough as a matter of the actual language used.[39]Section 1(4) of the 1981 Act is to the effect that, if registration as a British citizen is to be achieved by this route, an application must first be made. Section 51 of the 2006 Act then empowered the Secretary of State to require, by order, that an application (which extended to applications under s. 1(4) of the 1981 Act) be accompanied by a specified fee. Such an order had been made, in the form of the 2011 Order. Regulations, authorised to be made under s. 51(3) of the 2006 Act, specifying the amount had also been made in the form of the 2013 Regulations. Under the terms of s. 51(3), moreover, the Secretary of State was given a discretionary power to include in regulations (“may”) exceptions and/or a discretion to waive. The Secretary of State chose not to exercise such a power with regard to s. 1(4) applications. Further, the 2011 Order had itself been, as required, the subject of approval by both Houses of Parliament under the affirmative resolution procedure, as had been the 2013 Regulations by reference to s. 42(7) of the 2004 Act.[40]Yet further, it would be a real oddity if such an application, unaccompanied by a fee, was nevertheless in effect required to be treated as valid: presumably, if so, in theory leaving the Secretary of State to seek to recover the fee in the county court – a most improbable intention, as Mr Eadie pointed out. In any event, the position as to the consequence for such an application unaccompanied by the prescribed fee was initially expressly covered by the terms of s. 42(1)(a) and then s. 42 (1A) of the 1981 Act (now repealed): and was at the time of this application also covered by the terms of Regulation 9 of the 2013 Regulations made pursuant to s. 51 of the 2006 Act. An application under s. 1(4) of the 1981 Act submitted without the fee is not validly made.[41]In my view, the actual language of the statutory scheme is therefore, as a matter of ordinary construction, flat against Mr Knafler.[42]Mr Knafler, however, sought to confront this point by relying on the well-established principle that legislation ordinarily cannot be used to defeat the purpose of, and cannot conflict with, the relevant primary legislation. He submitted that in this case the power to include (or not) exemptions or discretionary waivers was not unfettered. He submitted that the entitlement of the appellant to be registered as a British citizen, he having been born over 10 years ago in the United Kingdom and having been resident in the United Kingdom ever since, was a “fundamental right”; and the statutory entitlement to registration as a citizen was not to be denied or frustrated by the failure to make allowance in the 2013 Regulations for an individual applicant such as the appellant who simply could not afford the fee. He further submitted in this regard that any other approach would violate the principle of legality: that public powers may not be exercised to abrogate fundamental values, at all events unless sanctioned by appropriately clear primary legislation.[43]Mr Knafler cited, among other authorities, the decision of Laws J in R v Somerset County council (ex parte Fewings) [1995] 1 All ER 513, in particular the well-known passage at page 524. I, for one, would not dream of questioning that authority: which in truth seems to me in many ways to be a reflection of the principles established in cases such as Padfield v Ministry of Agriculture [1968] AC 997. But it does not answer the question of what Parliament has elected to do under this particular statutory scheme as applicable in this particular case.[44]In R v Lord Chancellor (ex parte Witham) [1998] QB 575, the Divisional Court (Rose LJ and Laws J) held that the common law constitutional right – to use a short-hand phrase – of access to the courts could not, in the absence of express statutory authorisation, be abrogated by subordinate legislation. Thus an increase effected by subordinate legislation in court fees, for which no exemption was provided for those on income support and unable to pay them, was pronounced ultra vires the Supreme Court Act 1981 and unlawful: see in particular the discussion at pages 585G-587B. Mr Knafler would seek to apply that approach to the present case. But here too there are limits. Thus in R v Lord Chancellor (ex parte Lightfoot) [2000] QB 597 an attempt was made by a petitioner, in reliance on ex parte Witham, to strike down a requirement, contained in subordinate legislation, to pay a fee by way of security deposit for filing a bankruptcy petition which the (insolvent) petitioner could not pay. The attempt failed. It was held by the Court of Appeal that the absolute requirement of a fee (without any provision for a discretionary power of waiver) was entirely in accord with the statutory bankruptcy scheme and Parliamentary intention. Thus inability to pay on the part of some petitioners did not invalidate the scheme.[45]What is at root wrong with the argument in the present case is, in my view, this. There is no “fundamental” or “constitutional” right to citizenship registration for persons in the position of the appellant at all. The right is one which Parliament has chosen by statute to create and bestow, in certain specified circumstances. Those circumstances include, as one requirement, an application: which is then required to be accompanied by a fee if it is to be valid. There is nothing in the requirement of a fee to defeat the statutory purpose and intent. On the contrary, it is part of the statutory purpose and intent. Mr Knafler’s argument, with respect, in effect simply subordinates the requirement for a fee-paid application to the other conditions required to be fulfilled if citizenship under s. 1(4) of the 1981 Act is to be granted. I can see no sufficient justification for that, having regard to the terms of the statutory scheme.[46]In his closing submissions in reply Mr Knafler acknowledged that the need for a valid application was part of the scheme. However the emphasis of his argument was that – at all events consequent on the repeal and replacement of s. 42(1)(a) of the 1981 Act – the exclusion of an exemption or power of waiver with regard to applications such as these was contained solely in subordinate legislation, in particular in the form of the 2013 Regulations: and that at all events, he says, makes all the difference. I cannot agree. Subordinate legislation, as part of the scheme, had always been contemplated: see s. 42 of the 1981 Act. There is no identifiable reason why the position as from 2006 should have become ultra vires the 1981 Act when it was not before. The wording and intent of the overall legislative scheme was and remained clear and consistent in this regard.[47]There is a further difficulty in Mr Knafler’s approach. Before Hickinbottom J, he had made clear that “all” he was arguing for, in order to render the scheme intra vires, was a fee exemption (not a discretionary power of waiver) with regard to children receiving local authority assistance under s. 17 of the 1989 Act. One can see the forensic advantages of such an approach. It not only corresponds with one of the exemptions explicitly available under the 2013 Regulations with regard to leave to remain applications but it also provides a degree of administrative certainty. Yet further it enables emphasis to be placed (as Mr Knafler did, at considerable length) on general principles relating to the best interests of the child and the advantages which citizenship can confer on a child in terms of his or her social identity: to which a number of the reported cases in the immigration and asylum field refer.[48]This raises problems, however. In fact at one stage in argument Mr Knafler - departing from his case below-resurrected a suggestion that the 2013 Regulations were ultra vires in the absence of a discretionary waiver (not exemption) provision: this revision being suggested in the light of the observation of Macur LJ in the course of argument that a local authority’s obligations under s. 17 of the 1989 Act do not in fact always and only arise where a child is destitute. The relief he was seeking thereafter shifted from time to time in his argument. In truth, the argument on the ultra vires ground cannot in principle sensibly, as I see it, be confined solely to the case of a child who is receiving local authority assistance under s. 17. In logic it surely must extend to all persons (children or adults) who are unable to pay the fee required for such a citizenship application. And this would potentially be so for all applicants not only under s. 1(4) but also, potentially, under s. 1(3) and (3A) of the 1981 Act as well. So the limitation of the class to whom the postulated fee exemption or waiver provision applies, as propounded by the relief variously sought in this case, does not really work.[49]For his part, Mr Eadie conceded that the Secretary of State could not simply stipulate an application fee of, say, £1 million. That was a very fair concession. But it has implications: for it can be said that that connotes that the Secretary of State’s powers to include or exclude exemptions and waivers are indeed not unfettered; and that she therefore cannot make regulations which will in practice make it impossible for applicants to succeed in their applications for citizenship. That, then, would lend support to Mr Knafler’s overall argument, based on cases such as ex parte Fewings and ex parte Witham: that the power to make regulations under the statutory scheme cannot be exercised in such a way as to frustrate or defeat applicants (a fortiori, child applicants) who are destitute and unable to pay the required fee.[50]I do see the point here. But in my view – and really for the reasons I have already set out – it does not gain traction, given the statutory wording. Furthermore, the concession on behalf of the Secretary of State has to be assessed in the light of the following:(1) it is to be taken as a given that the Secretary of State’s powers are to be exercised in good faith and not arbitrarily;(2) s. 42(1) of the 2004 Act in terms requires that the amount of fees, which may exceed the administrative costs, should reflect the benefits to the individual estimated as likely to accrue; and(3) the amount of fees required can only be exacted after prior scrutiny of both Houses of Parliament.[51]Moreover, there is this additional, and in my view important, consideration. As Hickinbottom J pointed out, children in a position similar to that of the appellant are most likely first to have become entitled (if it would not be reasonable to expect them to leave the United Kingdom) to a grant of leave to remain under paragraph 276ADE of the Immigration Rules. If that is so, then most likely the child’s parents will also be granted leave to remain, with a right of work; and so will not be destitute when the child attains the age of 10. That, I accept, will not always be so. But even then, and importantly, the prospective entitlement to registration as a British citizen is not lost. It remains. As Hickinbottom J put it:
“The requirement for payment of a fee for those children in receipt of local authority assistance is therefore more akin to a postponement of the ability to register.”
I agree. Moreover such a consideration would extend generally to those unable, at a given moment in time, to pay the required fee for a citizenship application by reason of destitution. Destitution is not, after all, to be assumed to be a permanent state. Further, there may be the possibility of a gift or loan from other family members or well wishers. It is also relevant that the mandatory requirement of a fee for s. 1(4) applications has not, on the evidence, precluded any very significant number of applicants wishing to apply from so applying. Moreover, in any residual case (which perhaps may be hard to envisage in practice) there is the concession of the Secretary of State that she would be bound on an application for citizenship registration not to require payment of the fee if an interference with an individual’s Article 8 rights otherwise would be involved.[52]I would therefore reject the ultra vires ground advanced on behalf of the appellant.

The Article 8 ground

[53]I turn to the second ground, based on Article 8. That Article is too familiar to require setting out here.[54]In the ordinary way, a challenge to a decision based on Article 8 grounds is based on the facts and circumstances of the individual case. In the present case Mr Knafler has made clear that he relies on no circumstances peculiar to this appellant other than the fact that he was a destitute child, receiving support under s. 17 of the 1989 Act, at the time of the decision.[55]One submission on behalf of the appellant was that the failure to grant a fee exemption interfered with the appellant’s family life. It interfered with his family life, it was said, because it imposed upon him (and his parents who are of course absolutely integral to the family unit) the uncertainties of living in the United Kingdom without the secure right of residence and other benefits flowing from citizenship. Thus such argument would also potentially apply to any other destitute child in a position comparable to that of the appellant.[56]I find this a very difficult submission to accept. Mr Knafler conceded, on this part of the argument, that there were “few marginal advantages” to the appellant over and above the grant of leave to remain. Given the right of a child in the position of the appellant to seek leave to remain, without a requirement to pay a fee, and given further the concession that the Secretary of State in any event could not and would not refuse an application for citizenship if (albeit in circumstances difficult to foresee) such a refusal were to involve a breach of Article 8, the argument seems to have no real purchase. A (present) denial of registration as a citizen does not of itself affect the appellant’s right to remain, with his parents, in the United Kingdom and does not in any meaningful way impact on the maintenance of his family life.[57]However, the main focus of the argument was on an asserted interference with the appellant’s private life.[58]In this respect, Mr Knafler culled a number of quotations from various authorities to the effect that citizenship can have an important impact upon a person’s social identity. Thus in R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311; [2008] UKHL 63 – a case in fact on Article 14 – nationality was included by Lord Walker, at paragraph 5 of his opinion, in the list of various characteristics regarded as “important to the development of an individual’s personality.” In the context of a case on children who already had British citizenship but who prospectively, in the light of the Secretary of State’s removal decision with regard to their mother, would themselves be required to move abroad if not to be separated from their mother (whilst at the same time being then separated from their British father) it was stated by Lady Hale that nationality was not a trump card: see paragraph 30 of her opinion in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166; [2011] UKSC 4. But she also stated at paragraph 32:
“Nor should the intrinsic importance of citizenship be played down. As citizens those children have rights which they will not be able to exercise if they move to another country…”
[59]Particular reliance was placed by Mr Knafler on the decision of the Supreme Court in R (Johnson) v Secretary of State for the Home Department [2016] 3 WLR 1267; [2016] UKSC 56. The issue in that case was, in essentials, whether it was in breach of a child’s rights under Article 8 and Article 14 to refuse to register him as a British citizen on the footing that he had been born in Jamaica as an illegitimate child of a British citizen; whereas he would have been capable of being registered as a British citizen had he been born a legitimate child. It may be noted in that case that, first, the claimant had leave to remain; second, however, he was not entitled to registration as a citizen as he was not of good character. That being so, he was rendered potentially liable to deportation by reason of his criminality (as a British citizen he could not have been deported). For present purposes it may be noted that Lady Hale at paragraph 36 of her opinion affirmed that a “person’s social identity is an important component of his private life which is entitled to respect under Article 8. This includes the recognition of his biological relationships…..”[60]Nevertheless, no authority was cited to us in support of the proposition that a refusal to grant citizenship may, of itself, constitute a breach of Article 8, taken on its own, in the case of a child (or, for that matter, an adult). On the contrary, it has been authoritatively decided by the European Court of Human Rights in Genovese v Malta [2014] 58 EHRR 25, a case also based on Article 14, as stated at paragraph 30:
“The provisions of Article 8, however, do not guarantee a right to acquire a particular nationality or citizenship. Nevertheless, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual.”
[61]No doubt there are advantages, whether in terms of social identity or otherwise, in having a status of citizenship. But given the protections, in terms of Article 8, afforded by a grant of leave to remain and given that in this case there was no suggestion of the appellant being removed or separated from his parents and given also the opportunity of applying later when the money was available, it is hard to see why Article 8 could or should avail the appellant here. I do not say, I do not need to say, that a rejection of a citizenship application can never involve engagement with Article 8. But put shortly there are, on the facts of this particular case, no “certain circumstances”, as alluded to in Genovese, which in my view could begin to show an issue arising under Article 8.[62]Mr Knafler, however, in the language of Genovese, sought to maintain that the refusal to register the appellant as a British citizen was indeed “arbitrary.” Since, as I have indicated above, there are no facts raised which are specific to the appellant to justify such an assertion the submission must, implicitly, be an attack on the whole statutory scheme as being arbitrary in this regard: for failure to make allowance, by way of exemptions or waivers, for applications for registration by destitute children. But, for the like reasons as already given, there is no such arbitrariness at all.[63]Accordingly, I have very great difficulty in seeing how Article 8, taken on its own, could be engaged in this particular case; and my own view would be that it is not. But even assuming that it in some way is engaged I in any event agree with the further conclusions of Hickinbottom J. First, the refusal to exempt the appellant from the fee and grant him citizenship was insufficient in this case to amount to an interference with his Article 8 rights; second that, even if there was an interference, it was marginal and clearly justified by the Secretary of State’s legitimate and proportionate aim to have a robust and administratively efficient scheme, with minimal exceptions, designed to help fund the immigration and border control system whilst limiting the fee burden on other applicants.[64]In my view, therefore, Hickinbottom J was plainly right to reject this argument.

The Article 14 ground

[65]I turn to the third ground based on Article 14. Article 14 provides as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
[66]In paragraph 95 of his judgment the judge indicated that, notwithstanding his previous findings in relation to Article 8 itself, he accepted the submission that a denial of nationality was sufficiently within the ambit of Article 8 to engage Article 14. At first sight, this possibly may seem to involve inconsistency. However, there was no Respondent’s Notice challenging the judge’s decision on this point; to the contrary, it was expressly conceded in the Secretary of State’s skeleton argument that the judge was entitled so to hold. Although, when the court queried this in argument, Mr Eadie indicated that he was minded not to maintain that position it transpired that Mr Knafler – entirely understandably – had not come equipped with authorities or prepared arguments to deal with such a changed stance. In those circumstances we ruled that the judge’s decision at paragraph 95 must stand; and I, for myself, prefer to make no observations as to its correctness, one way or the other, in this particular case. I should however make clear that there certainly is a juridical basis for the argument that Article 14 can be relied on if the facts fall within the ambit of a substantive right (as, for example, in Johnson) without it being necessary to show an actual breach of the substantive right: see the discussion in Clayton and Tomlinson on The Law of Human Rights (2nd ed.) at paragraphs 17. 126 and 17. 155-156.[67]The general approach required for these purposes is conveniently summarised in paragraph 36 of the judgment of the European Court of Human Rights, in Bah v United Kingdom [2012] 54 EHRR 21 where this was said:
“The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. Moreover, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.”
[68]Plainly the appellant in the present case cannot assert discrimination in this case by reference to a status specifically itemised in Article 14. To bring himself within its reach he therefore must argue for some “other status” as there mentioned. The overall inquiry then is as to whether there is a difference in treatment based on a personal characteristic, or status, by reference to persons in a position analogous to that of the appellant and which cannot be justified.[69]What, then, in the present case, is this “other status”? Mr Knafler said that it is the status of a destitute child receiving assistance under s. 17 of the 1989 Act. But that is purely adventitious: the fact that the appellant was a child receiving such assistance was wholly immaterial to the rejection of his citizenship application. The application was not rejected because the applicant was a child. The application was not rejected because the applicant was in receipt of assistance under s. 17 of the 1989 Act. The application was rejected solely because it was not accompanied by the prescribed fee. Here too, however, by focusing on the appellant and postulated comparator group being children Mr Knafler again sought to extract mileage from the general importance attached to the best interests of children: as exemplified in the UN Convention on the Rights of the Child and other such materials. Accordingly while emphasis on the appellant being a (destitute) child again gives a degree of forensic force to the argument nevertheless it is in law, as I see it, wholly beside the point. The application for registration would, for example, likewise have been rejected had the applicant been over the age of 18, submitting his application without the prescribed fee.[70]Consequently the “status” being asserted is, in reality, the asserted status of impecuniosity: more particularly, by reference to the inability to raise the required £673 application fee. The comparison thus has to be with those applicants who are able to raise such a fee.[71]Impecuniosity or destitution is not an innate characteristic nor is it necessarily permanent. That is relevant, albeit not, I accept, conclusive: for it is to be accepted that the phrase “other status”, as deployed in Article 14, does not necessarily require a status which is either innate or permanent. It has been held, for example, that homelessness can be such a status: see R (RJM) v Secretary of State for Work and Pension [2009] 1 AC 311; [2008] UKHL 63. Mr Knafler submitted that if, for example, homelessness is capable of being such a status for the purposes of Article 14 there is no reason why destitution should not be.[72]In R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173; [2005] UKHL 37, Lord Hoffmann noted (at paragraph 15) that the Strasbourg Court had given Article 14 a wide interpretation. He suggested (paragraphs 15 and 16) that there was a distinction between cases of discrimination which appear to offend notions of respect due to the individual and those which “merely require some rational justification”. He stated that differences in treatment on a ground such as ability, education, wealth or occupation are within the latter category of case for this purpose: that is, which “merely require some rational justification.” At paragraph 17 he alluded to the possibility of border-line cases. But he went on to say:
“But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy.”
[73]Thus while the status is for these purposes not necessarily required to be innate or permanent most often the personal characteristics which feature either will be ones which are innate (for example, sex or race) or will be ones which an individual should not be expected to change (for example, religion or political opinion). But this, I repeat, is not necessarily so: see, for example, the discussion in R (RJM) v Secretary of State for Work and Pensions (cited above).[74]Can, then, impecuniosity of the kind advanced in this case count as such a status for the purposes of Article 14? One difficulty is the very relativity of the term (which is not improved by substituting different nouns such as “destitution” or “poverty”): there are assuredly citizens of some countries in the world who would view with astonishment a claim to “destitution” by certain individuals living in other countries in the world. This elasticity of meaning is rather illustrated by the wording of the written argument on behalf of the appellant, where it is stated that the “key question… is whether differences between the situation of children who are members of impecunious families and unable to pay for registration and other children who are members of affluent families able to pay, justify refusing to grant citizenship to children who are members of impecunious families.” But is a child whose parents are otherwise without the requisite funds but who can in fact readily, if they tried, obtain a loan or gift of the money for this purpose from a friend or elsewhere to be regarded as “impecunious”? Is anyone who does somehow raise the money for this purpose to be regarded as “affluent”? Is the “impecuniosity” tied – as seems to be the appellant’s case - to the inability to pay whatever happens to be the actual amount of the fee required in any given case (here, £673)? And so on.[75]The appellant could cite no authority, European or domestic, to us in support of a general proposition that impecuniosity may be an “other status” for the purposes of Article 14. That is revealing. Strasbourg has never gone so far as this present argument would take us.[76]The implications of this argument as to “impecuniosity”, at any rate if defined by reference to an inability to pay a particular fee, being a relevant status for the purposes of Article 14 are potentially as far reaching as they are profound. It is not difficult to infer that the proposition would have surprised Lord Hoffmann. At all events, I cannot accept the argument.[77]Mr Knafler nevertheless argued that it is “manifestly disproportionate” to treat such cases differently. The child otherwise entitled to be registered will be registered if he provides the prescribed fee. The child otherwise entitled to be registered will not be registered if he is unable to provide the prescribed fee. That, he said, is not capable of being justifiable.[78]In my judgment, in so far as the difference accorded to registration applications which are accompanied by the prescribed fee and to those which are not calls for a rational justification, sufficient justification is provided in the witness statement of Mr Sparks. Moreover, a margin of appreciation is available here in what is an area of socio – economic policy. Yet further, the fact that a “bright line” approach, as was adopted in the 2013 Regulations, may – on one possible view – give rise to a tough result in a particular case is, as Mr Eadie pointed out, not in itself a reason for finding unjustified discrimination on the part of the executive: which has been entrusted, by legislative provisions, with the power to make the decisions in this area (see R (RJM) at paragraphs 54-57, per Lord Neuberger). Overall, the measure here taken – even if otherwise within the ambit of Article 14 - is proportionate and in pursuit of a legitimate aim. This is a statutory scheme which has been implemented in pursuit of social and economic policy and which plainly has a rational justification.[79]This ground of challenge also fails.

The common law ground

[80]Mr Knafler did also advance a further argument that the discrimination asserted to be inherent in the 2013 Regulations is contrary to the appellant’s common law rights. He advanced the argument shortly and I propose to deal with it shortly. The argument, again, is based on the wrong premise that the potential entitlement to be registered as a citizen pursuant to s. 1(4) of the 1981 Act is some kind of “fundamental right”, as opposed to a right which Parliament has chosen to bestow. At all events if the argument cannot succeed on a proper interpretation of the legislative provisions which create and implement the right, as it cannot, and if it cannot succeed under the Convention, as it cannot, then in my view it cannot succeed at common law.

Conclusion

[81]I would endorse the judgment of Hickinbottom J. I would dismiss the appeal on all grounds advanced.[82]I agree.[83]I also agree.

Cited in 7 later judgments