“(1) The Secretary of State may provide, in accordance with this section, for fees to be charged in respect of the exercise of functions in connection with immigration or nationality. (2) The functions in respect of which fees are to be charged are to be specified by the Secretary of State by order (“a fees order”).”
“In setting the amount of any fee, or rate or other factor, in fees regulations, the Secretary of State may have regard only to- (a) The costs of exercising the function; (b) Benefits that the Secretary of State thinks are likely to accrue to any person in connection with the exercise of the function; (c) The costs of exercising any other function in connection with immigration or nationality; (d) The promotion of economic growth; (e) Fees charged by or on behalf of other countries in respect of comparable functions; (f) Any international agreement.” (a) The costs of exercising the function; (b) Benefits that the Secretary of State thinks are likely to accrue to any person in connection with the exercise of the function; (c) The costs of exercising any other function in connection with immigration or nationality; (d) The promotion of economic growth; (e) Fees charged by or on behalf of other countries in respect of comparable functions; (f) Any international agreement.”
“For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any other person bysection 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children)”
“Becoming a British citizen is a significant life event. Apart from allowing you to apply for a British citizen passport, British citizenship gives you the opportunity to participate more fully in the life of your local community.”
“The principle is undisputed. Subsidiary legislation must not only be within the vires of the enabling statute but must also be so drawn as not to conflict with statutory rights already enacted by other primary legislation. Once that is accepted, the question in the present case becomes one of degree and extent.”
“The question here is as to what Parliament has authorised. Mr Knafler and Mr Eadie were agreed that the inquiry ultimately had to be as to what Parliament intended, by reference to the language it has used.”
“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 ten 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.”
“What is 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 claimant 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 section 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.”
“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 section 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 section 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.”
“In determining the extent of the power conferred on the Lord Chancellor by section 42(1) of the 2007 Act, the court must consider not only the text of the provision, but also the constitutional principles which underlie the text, and the principles of statutory interpretation which give effect to those principles. In that regard, there are two principles which are of particular importance in this case. One is the constitutional right of access to justice: that is to say, access to the courts (and tribunals: R v Secretary of State for the Home Department, Ex p Saleem[2001] 1 WLR 443 ). The other is the rule that “specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act”: R v Secretary of State for Social Security, Ex p Joint Council for 53. the Welfare of Immigrants[1997] 1 WLR 275 , 290 per Simon Brown LJ. In the context of the present case, there is a considerable degree of overlap between these two principles. For the sake of clarity, however, each of these principles will be considered in turn.”
“The Lord Chancellor cannot, however, lawfully impose whatever fees he chooses in order to achieve those purposes. It follows from the authorities cited that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice. That will be so because section 42 of the 2007 Act contains no words authorising the prevention of access to the relevant tribunals. That is indeed accepted by the Lord Chancellor.”
“In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence now before the court, considered realistically and as a whole, leads to the conclusion that that requirement is not met. In the first place, as the Review report concludes, “it is clear that there has been a sharp, substantial and sustained fall in the volume of case receipts as a result of the introduction of fees”
“103 As explained earlier, the lawfulness of the Fees Order is also challenged on the basis that it contravenes the rule that specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act: R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants[1997] 1 WLR 275 , 290. That case was concerned with subordinate legislation which deprived asylum seekers of income-related benefits if they appealed against the Home Secretary’s refusal of their claim. The Court of Appeal found that, if deprived of benefits, some asylum seekers with genuine claims would be driven by penury to forfeit them, either by leaving the country before their determination or through an inability to prosecute them effectively. That being so, the legislation was held to be unlawful. Simon Brown LJ stated at p 292 that “these Regulations for some genuine asylum seekers at least must now be regarded as rendering these rights [of appeal] nugatory”. 104 In the circumstances of the present case, this ground of appeal does not add anything to the ground based on the common law right of access to justice. In so far as the Fees Order has the practical effect of making it unaffordable for persons to exercise rights conferred on them by Parliament, or of rendering the bringing of claims to enforce such rights a futile or irrational exercise, it must be regarded as rendering those rights nugatory.”
“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”
“(1) The Secretary of State must make arrangements for ensuring that – (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and (b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need. (2) The functions referred to in subsection (1) are – (a) any function of the Secretary of State in relation to immigration, asylum or nationality; (b) any function conferred by or by virtue of the Immigration Acts on an immigration officer; (c) any general customs function of the Secretary of State; (d) any customs function conferred on a designated customs official.” (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and (b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need. (a) any function of the Secretary of State in relation to immigration, asylum or nationality; (b) any function conferred by or by virtue of the Immigration Acts on an immigration officer; (c) any general customs function of the Secretary of State; (d) any customs function conferred on a designated customs official.”
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”
“I consider that it is clear…that it is not incumbent on the Court to conduct the balancing exercise for itself or to become entangled in the merits. The Court must be satisfied that the correct factors have been identified by the Secretary of State and then assessed. Part of the evidential picture includes what was said in Parliament. The Court must also be satisfied in connection with the best interests of the child that the decisionmaker described with reasonable accuracy what those interest are, and has treated them as a primary consideration.”
“I take Sir James’ point that the position falls to be addressed at a reasonably high level of generality. However, there is no evidence in the voluminous papers before me that his client has identified where the best interests of children seeking registration lie, has begun to characterise those interests properly, has identified that the level of fee creates practical difficulties for many (with some attempt being made to evaluate the numbers); and has then said that wider public interest considerations, including the fact that the adverse impact is to some extent ameliorated by the grant of leave to remain, tilts the balance.”
“4. The context is one in which the key question is whether the best interests of children were considered by the Secretary of State prior to the legislative provisions in issue being made. Reliance on the debates is simply in order to demonstrate the fact (which is not controversial) that there was extensive debate about that very subject, with section 55 being directly raised: no more and no less. 5. It will still, of course, be for the Court to rule on whether, even taking the fact of those debates into account, there was compliance with the section 55 duty by the Secretary of State. That does not involve questioning or assessing the quality of any reasons given in Parliament (which it is accepted would be impermissible as both the Respondents and the Speaker note). The debates speak for themselves in terms of what was said, by whom.”
“…The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”
“To that limited extent there may be occasion for the courts, when conducting the statutory “compatibility” exercise, to have regard to matters stated in Parliament. It is a consequence flowing from the Human Rights Act”
“Beyond this use of Hansard as a source of background information, the content of parliamentary debates has no direct relevance to the issues the court is called upon to decide in compatibility cases and, hence, these debates are not a proper matter for investigation or consideration by the courts. In particular, it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament. The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members. Different members may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation. Ministerial statements, especially if made ex tempore in response to questions, may sometimes lack clarity or be misdirected. Lack of cogent justification in the course of parliamentary debate is not a matter which ‘counts against’ the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister’s exploration of the policy options or of his explanations to Parliament. The latter wouldcontravenearticle 9 of the Bill of Rights. The court would then be presuming to evaluate the sufficiency of the legislative process leading up to the enactment of the statute. I agree with Laws LJ’s observations on this in International Transport Roth GmbH v Secretary of State for the Home Department[2002] 3 WLR 344 , 386, paras 113-114”
“79. In deciding upon the terms of the revised cap, did the Government have regard, as a primary consideration, to the best interests of children below school age of lone parents and did it evaluate the possible impact of its decision upon them? 80. In answering this question within its overarching inquiry into the alleged violation of Convention rights, the court can, without constitutional impropriety, have regard to Parliamentary materials which explain the background to the Government’s decision and in particular its policy objectives: Wilson v First County Trust Ltd (No 2)[2003] UKHL 40 , [2004] 1 A 66.”
“In considering how the Government approached that task, rather than trawling through the parliamentary debates, we are entitled to rely on the evidence given in these proceedings on behalf of the Secretary of State.”
“It does not flow from my conclusion…that a quashing order, as opposed to declaratory relief, must be granted. There is power to make a quashing order in a case where a breach of a procedural obligation has been made out if on the facts it is not highly likely that the decision would have been substantially the same if the breach had not occurred…Sir James submits that in the light of the Parliamentary debates in particular I can be confident that the outcome would have been the same. I consider that this is really a rehash of the argument which has failed before me. I am not confident that the outcome would have been the same, or substantially the same, absent the breach that has occurred; but in the exercise of my discretion…I decline to grant the quashing orders sought. It is sufficient in this case to grant declaratory relief because, unless there is a successful appeal, the section 55 issue will need to be reconsidered and a clear indication of the outcome of that process given by the Secretary of State.”