Williams, R (on the application of) v The Secretary of State for the Home Department

This claim raises the following important issue: can the Secretary of State refuse a child’s application for British nationality in circumstances in which the child can satisfy all other requirements but, as a result of destitution, cannot pay the required fee?

The Claimant challenges the Secretary of State’s decision received on 17 March 2014 to reject his application to be registered as a British citizen, on the basis that the prescribed fee of £673 had not been paid, on two grounds, namely:

Before me, Stephen Knafler QC appeared for the Claimant; and James Eadie QC and William Hansen for the Secretary of State. At the outset, I thank them for their valuable contributions.

The statutory scheme comprises several elements, and it may be helpful if I set out in chronological order the abbreviations I use in this judgment in respect of the relevant statutory provisions:

Section 1 of the British Nationality Act 1981 (“the 1981 Act”) sets out the ways in which British nationality can be acquired by birth or adoption. Some are automatic; for example, a person born in the United Kingdom whose father or mother is a British citizen is automatically a British citizen, without any application being made or any other requirements being fulfilled (section 1(1)(a)). Some, however, require an application for registration to be made.

One route to nationality that falls into this latter category is found in section 1(4), under which the Claimant sought British citizenship. So far as relevant to this claim, it provides:

“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.”

This refers to an entitlement (“… shall be entitled…”), but that entitlement is subject to preconditions. By section 1(4) itself, the applicant must have been born in the United Kingdom and lived here for the first ten years without a significant break. By section 41A of the 1981 Act, an application under section 1(4) will not be granted unless the Secretary of State is satisfied that the applicant is of good character; and, by section 42, an adult applicant will not be registered unless he has made the relevant citizenship oath and pledge at a citizenship ceremony. Furthermore, the statutory scheme provides that, to achieve British citizenship under section 1(4), registration is required; and, to obtain registration, an application has to be made. A fee is payable on such an application.

Alan Sparks is the Head of the Fees and Income Planning Team within the Financial Planning Unit of the Home Office. As such, he is responsible for Home Office income planning and fee setting. In paragraphs 7-9 of his statement of 9 March 2015, he explains that fees for nationality applications have been routinely charged since 1870. Until 1982, they were set at a level merely to deter frivolous applications. However, from 1982, fee levels were set to reflect the value of British nationality to the applicant and to achieve full-cost recovery for nationality applications. Section 42 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 as amended by section 20 of the UK Borders (Treatment of Claimants etc) Act 2007 (“the 2004 Act”), allowed the Secretary of State to prescribe fees for nationality applications exceeding the administrative costs of processing such applications (see paragraph 17 below); and, using that provision, since 2007 the level of some fees has been set with a view to contributing to the general costs of the border and immigration system by, in effect, a cross-subsidy.

From 2014-15, the policy has been taken a step further. The Home Office Impact Assessment for the Immigration and Nationality (Fees) Regulations 2014 (“the 2014-15 Impact Assessment”) sets out the current overarching fiscal policy objective:

“The Home Office must ensure that there are sufficient resources to control migration for the benefit of the UK in a way that achieves value for money for the taxpayer. Government intervention is necessary to ensure a balanced budget…

The specific policy objective of this legislation is to generate sufficient income to ensure the Home Office has a balanced budget for the financial year 2014-15. This will enable the Home Office to run a sustainable immigration system – making timely, correct decisions on who may visit and stay and deterring, stopping or removing those who have no right to be here – in a way that achieves value for money for the taxpayer. Policy objectives on immigration and nationality fees are: (1) that those who benefit directly from our immigration system (migrants, employers and educational institutions) contribute towards meeting its costs, reducing the contribution from the taxpayer; (2) that the fees system is simplified where possible, aligning fees where entitlements are similar; (3) that fees are set fairly, at a level that reflects the value of a successful application to those who use the service.”

As a result, fees were increased across the board by 4% – and there were greater increases in relation to some specifically targeted fees – to enable the books to be balanced. It is estimated by Mr Sparks that the positive contribution of nationality applicants in that exercise will be about £130m in the year 2015-16.

The 2014-15 Impact Assessment sets out the unit costs of various “products” (including different types of application), as well as the relevant fee in 2013-14 and the proposed fee and forecast volumes for the following year. For an application under section 1(4) for a child, the unit cost for 2013-14 was £187, and the fee £673; for 2014-15, the figures were £144 and £669 respectively; and for 2015-16, they are £223 and £749. By way of comparison, for a postal application for leave to remain, the unit cost is currently £299, and the fee £649.

In respect of nationality application fees, the statutory provisions are by no means straightforward, and they have regularly changed over time. I will deal first with the provisions by which liability for a fee has been and is imposed (paragraphs 12-15), before turning to the provisions concerning the amount of such fee (paragraphs 17 and following).

As originally enacted, section 42(1)(a) of the 1981 Act provided that:

“… 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…”.

Section 42(3) provided that:

“Any provision in this Act which provides for a person to be entitled to registration as a citizen of any description… shall have effect subject to the preceding provisions of this section.”

With effect from 1 January 2004, paragraph 1 of Schedule 1 to the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) replaced section 42 of the Act with (amongst other provisions) a new section 42A(1):

“A person shall not be registered under a provision of this Act as a citizen of any description… unless any fee payable by virtue of this Act in connection with registration has been paid.”

Section 41(2) of the 2002 Act gave the Secretary of State, with the consent of HM Treasury, a power to make regulations providing for the imposition, recovery and application of fees in connection with any registration under the Act.

Sections 41(2) and 42A of the 1981 Act were repealed by section 61 of and Schedule 3 to the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), being effectively replaced by sections 51-52 of that Act. These are the statutory provisions which, together with secondary legislation made under them, applied at the time the Claimant’s application was made. So far as relevant to this claim, these sections provide:

“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.

(2)

The Secretary of State may by order provide for a fee to be charged by him, by an immigration officer or by another specified person in respect of –

(a)

the provision on request of a service (whether or not under an enactment) in connection with immigration or nationality,

(b)

a process (whether or not under an enactment) in connection with immigration or nationality…

(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.”

That there is a strong fiscal element to an order or regulations made under section 51 is thus confirmed by the fact that they require the specific consent of HM Treasury.

The relevant Order made under section 51(3) of the 2006 Act, imposing a requirement to pay a fee on an application under section 1(4) of the 1981 Act, applicable at the relevant time, was the Immigration and Nationality (Fees) Order 2011 (SI 2011 No 445) (“the 2011 Fees Order”), which provided:

“(1)

Applications to which this article applies must be accompanied by the fee specified in regulations made under section 51(3) of the 2006 Act.

(2)

This article applies to applications for –

…

(k)

registration as a British citizen under section 1…(4)…of the 1981 Act…”.

Those provisions concern the power to impose fees. The amount of fees has historically been dealt with elsewhere in the statutory scheme.

As I understand it, under the 1981 Act as enacted, fees were set by regulations passed under section 41. However, section 42 of the 2004 Act as amended (to which I have already referred: see paragraph 8 above), under the heading “Amount of fees”, provided so far as material to this claim:

“(1)

In prescribing a fee under section 51 of the [2006 Act] in connection with a matter specified in subsection (2) the Secretary of State may… prescribe an amount which is intended to –

(a)

exceed the administrative costs of determining the application or undertaking the process, and

(b)

reflect benefits that the Secretary of State thinks are likely to accrue to the person who makes the application, to whom the application relates or by or for whom the process is undertaken, if the application is successful or the process is completed.

(2)

Those matters are –

(a)

anything done under, by virtue of or in connection with a provision of the [1981 Act]

(b)

an application for leave to remain in the United Kingdom,

…

(2A) Regulations under section 51(3) of the [2006 Act], specifying the amount of a fee for a claim, application, service, process or other matter in respect of which an order has been made under section 51(1) or (2), may specify an amount which reflects (in addition to any costs referable to the claim, application, service, process or other matter) costs referable to –

(a)

any other claim, application, service, process or matter in respect of which the Secretary of State has made an order under section 51(1) or (2),

(b)

the determination of applications for entry clearances (within the meaning given by section 33(1) of the Immigration Act 1971),

(c)

the determination of applications for transit visas under section 41 of the Immigration and Asylum Act 1999, or

(d)

the determination of applications for certificates of entitlement to the right of abode in the United Kingdom under section 10 of the [2002 Act].

...

(7)

An instrument may not be made in reliance on this section unless a draft has been laid before and approved by resolution of each House of Parliament (and any provision making the instrument subject to annulment in pursuance of a resolution of either House of Parliament shall not apply).”

At the time of the Claimant’s application, the relevant regulations were the Immigration and Nationality (Fees) Regulations 2013 (SI 2013 No 749) (“the 2013 Fees Regulations”). These appear to have been materially the same as earlier fees regulations that were made annually. In accordance with section 42(7) of the 2004 Act, a draft of the 2013 Regulations was duly laid before and approved by an affirmative resolution of each House of Parliament. An Explanatory Memorandum to the Regulations was also laid before Parliament which explained the purpose of the instrument (paragraph 2.1), the legislative context (paragraph 4) and the policy background (paragraph 7). Under the heading, “Policy Background, What we are doing and why”, the memorandum explains as follows:

“7.1

The fees contained in these regulations are set above the administrative cost of providing the application, process or service in line with the government’s flexible charging model. Charging fees above the cost of administration helps raise the revenue required to fund the immigration system and to cross-subsidise fees set below cost for immigration routes where a lower fee supports government objectives. As a direct result of the fees referred to in this instrument, the UK Border Agency is able to generate sufficient income to support the immigration system, maintain public confidence and ensure that migration is controlled for the benefit of the UK.

7.2

The UK Border Agency aims to generate an appropriate contribution to its agreed running costs from the income generated from visa, nationality and immigration applications. By doing this, the Agency seeks to reduce the financial obligation on the UK taxpayer to subsidise the immigration system. It is also able to protect certain routes from significant fee increases while generating the additional revenue needed to fund enforcement and other necessary improvements to the immigration system.”

The purpose of generating income from fees is therefore said to be to protect (i) the public interest in reducing the burden on the public purse, and (ii) the interests of other applicants from having to pay even higher fees.

As I have indicated (paragraph 9 above), from 2014-15 the policy objective changed, to the extent that it became the policy intention for the immigration system to be self-financing – with the result that the burden of cross-subsidisation from income-producing applications, such as nationality applications, became the greater. In this claim, there is no complaint about the Secretary of State’s entitlement to approach fees in this way or, in general terms, to the level of fees imposed.

In the 2013 Regulations (as in previous and subsequent annual regulations enacted for the same purpose), fees for various applications etc were fixed by reference to schedules.

Regulation 3 provided that Schedule 1 had effect to specify the amount of fees for applications for leave to remain, and exceptions to the requirement to pay those fees. Generally, the fee was £578 (paragraph 1.1.1 of Table 1 of Schedule 1) or £1,051 for indefinite leave to remain (paragraph 2.1.1 of Table 2 of Schedule 1); but there was an exception set out in paragraph 3.1 of Table 3 of Schedule 1:

“No fee is payable in respect of an application made in respect of a person who, at the time of making the application is a child and is being provided with assistance by a local authority.”

I shall call this “the LTR child destitution fee exemption”.

Regulation 4 provides that Schedule 2 has effect to specify the amount of fees for applications for entry clearance. By paragraph 6.1 of Table 6 of Schedule 2, the Secretary of State has a general discretion to waive such fees.

Regulation 6 provided that Schedule 4 has effect to specify the amount of fees for specified applications in connection with nationality for (amongst other things) the purpose of article 3(2)(k) of the 2011 Fees Order, i.e. registration as a British citizen under section 1(4) of the 1981 Act. Paragraph 8.2.1 of Table 8 of Schedule 4 provided that the fee for registration as a British citizen under the 1981 Act was, from 26 March 2013, £673. There were provisions for fee reductions where there were applications made for more than one child at the same time (paragraph 4 of Schedule 4); but there were no exceptions whereby the fee did not have to be paid (and, in particular, no equivalent to the LTR child destitution fee exemption), nor any discretionary power to waive the fee for child section 1(4) applicants.

Regulation 9 of the 2013 Regulations provided that:

“Where these Regulations specify a fee which must accompany an application for the purposes of the 2011 [Fees] Order, the application is not validly made unless it is accompanied by the specified fee.”

In summary, the position with regard to the statutory provisions with regard to the Claimant’s application at the time it was made was therefore as follows:

I deal with the relevant factual background below (paragraph 44 and following). However, briefly, the Claimant was born in the United Kingdom; and, by the time of the relevant application, he had lived here for his first ten years without any absences and was of good character. He was therefore entitled to be registered as a British citizen, but only “on an application for his registration” (section 1(4) of the 1981 Act). It is uncontroversial that he satisfied all of the requirements for citizenship, save for the making of an application; and it is equally uncontroversial that, at the time of the application, he and his parents were receiving section 17 assistance, were destitute and could not afford the fee.

To complete the picture, I should say that sections 51-52 of the 2006 Act were repealed by sections 68-69 of the Immigration Act 2014. Under that Act, there is a new fees order (the Immigration and Nationality (Fees) Order 2015 (SI 2015 No 746) (“the 2015 Fees Order”)), and new fees regulations (the Immigration and Nationality (Fees) Regulations 2015 (SI 2015 No 768) (“the 2015 Fees Regulations”)). The new regime was not the subject of discussion before me; but the essential statutory scheme appears to be similar, and the regime still does not include any fee exemption for child applicants under section 1(4). It does, however, provide that no fee is payable on applications for leave to remain, where (the references being to Table 6 in Schedule 2 to the 2015 Regulations):

Ground 2 is based upon the human rights enjoyed by the Claimant under article 8 of the ECHR.

The ECHR was agreed by the Council of Europe on 4 November 1950, and ratified by the United Kingdom in 1951. By virtue of section 6 of the Human Rights Act 1998, it is unlawful for a public authority in the United Kingdom to act in a way that is incompatible with a Convention right, defined by reference to various articles in the ECHR and its Protocols.

Article 8 of the ECHR provides:

“(1)

Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Thus, the right to respect for family and private life is not absolute: interference with that right can be justified by the State if that interference is (i) for a legitimate aim, (ii) in accordance with the law, and (iii) necessary in the public interest. Whether the interference is “necessary” in this context, is dependent upon whether it is proportionate to the legitimate aims pursued by the State. It has long been recognised that that requires a context-specific exercise to be performed, in which “the nature, context and importance of the right asserted and the extent of the interference… must be balanced against the nature, context and importance of the public interest asserted as justification” (Human Rights Law and Practice, Lester & Pannick, 1st Edition (1999) at paragraph 4.8.43).

Article 8 concerns a broad range of often ill-defined personal interests – I shall in due course deal with whether these include nationality or citizenship and, if so, the extent to which that interest bites in article 8 terms (see paragraph 82 and following below) – several of which may be in play at the same time. Some are negative rights, requiring the State to refrain from interfering with family or private life; whilst others are positive rights, requiring the State to facilitate family or private life in some particular way.

Whilst those interests demand “respect”, they are of course not guaranteed. The public interest and/or the rights and interests of others may justify interference with an individual’s article 8 rights; and, just as the possible interests covered by article 8 are wide-ranging and diverse, so are the potential justifiable limitations. In addition to matters of public interest (which may themselves be many and/or diffuse), in most decision-making exercises involving an individual’s article 8 rights, there are likely to be a number of other individuals, each of whom may have his or her own article 8 rights and other legitimate interests, which again may not all fall on the same side of the balance.

Therefore, whilst this balancing exercise “is inherent in the whole Convention” (Cossey v United Kingdom (1990) EHRR 622 at [37]), because of the multi-stranded nature of article 8 and its concern with relationships between individuals as well as the relationship of individuals and the State, the exercise is often singularly complex when article 8 is in play. The result is that “… the [European Court of Human Rights] is increasingly approaching the issue of justification [in the context of article 8] by use of such fair balance analysis” (paragraph 4.8.4 of Lester, Pannick and Herberg, 3rd Edition). Another result is that a decision-making exercise involving article 8 rights, especially in a complex setting, may be amenable to more than one, perfectly lawful, result. Indeed, where the executive is engaged in making decisions and choices in the general field of economic or social policy, it is well-established that the State has a wide margin of discretion: because, in respect of what is in the public interest on social and economic grounds, it has the legitimacy stemming from the fact that it is democratically-accountable, and it is in the best position to judge (see, e.g., Stec v United Kingdom (2006) 43 EHRR 1017 at paragraph 52, R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 at [56]-[57] per Lord Neuberger, and R (S) v Secretary of State for Justice [2012] EWHC 1810 (Admin)).

The Claimant also relies upon article 14 of the ECHR, which prohibits discrimination in securing the enjoyment of other Convention rights (such as those within article 8), in the following terms:

“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.”

This appears to be the first claim to have come before the courts involving the legality of the absence of any power to waive the fee in respect of an application for citizenship under section 1(4) of the 1981 Act by a destitute child. However, the broad issue in the case – namely the consequences of an applicant’s inability to pay a required fee – has arisen in the context of other types of immigration application. I was referred to three particular cases.

The first in time was R (Shiekh) v Secretary of State for the Home Department [2011] EWHC 3390 (Admin) (“Sheikh”), in which Sales J (as he then was) considered the relationship between the requirement to pay a fee and article 8 in the context of an entry clearance application. Mr Eadie placed some weight on this authority, although I note at the outset that – as Mr Eadie readily accepted – on its facts, it was a very different case from this. It concerned a discretion to waive a fee on entry clearance.

Under the heading, “Legal analysis”, Sales J said this (at [56]):

“A request for waiver of a fee in respect of an application for entry clearance which would normally be due is a request for a substantive benefit which entails the State having to bear some cost. A person who applies for a waiver of the normal fee will be entitled to such waiver if he can show (i) that he falls within some statement of policy by the Secretary of State regarding the circumstances in which a waiver will be granted, or (ii) that there are other compelling circumstances of his case not referred to in any statement of policy that ought to be taken into account by the Secretary of State (see [R (Elmi) v Secretary of State for the Home Department [2010] EWHC 2775 (Admin)] at [43]-[44]) and that, taking such matters into account, it would be irrational for the Secretary of State to refuse to grant a waiver, or (iii) that there is a duty on the Secretary of State under section 6(1) of the [Human Rights Act] to grant a waiver, by reference to Convention rights (here, article 8 is relied upon). The person applying for a waiver may also be entitled to judicial review of a decision to refuse such waiver, so as to compel a reconsideration of that decision, if he can show that any of the usual grounds of judicial review (such as failure to take into account relevant considerations, or that irrelevant considerations have been taken into account) are made out.”

The “usual grounds of judicial review” of course include circumstances in which the decision-maker has exceeded the powers delegated to him or her by Parliament.

Sales J refused the claim made on grounds of irrationality, because, he said, (i) the Secretary of State was entitled to operate a restrictive policy in relation to the exercise of her power of waiver, and (ii) she was entitled to take the view that an insufficient case had been made out to show that the applicant’s family was really incapable of funding the application (see [72]) (cf this case, in which the Secretary of State accepts that the Claimant’s family were, at the relevant time, destitute and incapable of paying the fee).

However, Mr Eadie relied upon the case for Sales J’s structured consideration of the article 8 issue at [74], and in particular the following elements of it.

In MA (Somalia) v Secretary of State for the Home Department [2013] EWCA Civ 966 at [39], Elias LJ described Sales J’s judgment as “valuable”, a description with which I respectfully agree. However, as I have already indicated, the facts of Sheikh were very different from those in the claim before me. Leaving aside the fact that Sales J was unconvinced that the applicant in that case could not, as a matter of fact, pay the relevant fee – so that there could be no tenable case for an implied obligation under article 8(1) to waive the fee (see [74(9)]) – the case concerned a fee waiver of an application for entry clearance rather than a fee exemption for registration as a British citizen. The whole factual and policy matrix was therefore significantly different. Furthermore, on the evidence before me, some of Sales J’s comments about the effects of a fee exemption or waiver appear to be misdirected, or at least inappropriate to this claim. I return to those below (see paragraphs 62-64).

The second case to which I was referred was R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin) (“Omar”), a case with a lengthy and complex immigration history in which Beatson J (as he then was) considered the position of an individual whose article 8 right to remain had been recognised by the Immigration & Asylum Tribunal (as it then was), but who could not afford to pay the fee to apply for further leave to remain. At that stage, there was no exception or discretion to waive the fee in respect of an application for leave to remain. It seems that the claimant in that case did put forward an argument that the absence of such was ultra vires (see [63]). However, his primary submission was that, as a result of authorities such as S v Secretary of State for the Home Department [2006] EWCA Civ 1157 at [45]-[46], MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133 at [48] and CL (Vietnam) v Secretary of State for the Home Department [2008] EWCA Civ 1551 at [27], the Secretary of State had an obligation to grant leave to remain; and the requirement for a fee for the appropriate application – and the provision that an application without a fee “is not validly made” (then found in regulation 30 of the 2013 Regulations) must be read subject to a qualification that the specified fee is not due where to require it to be paid would be incompatible with a person’s ECHR’s rights. Beatson J found that submission to be made good (see [82]). Curiously, Sheikh does not appear to have been cited to him. Because of the tribunal finding (that it would be a breach of his article 8 rights to remove him), the claimant was a “protected person” and did not face the risk of removal. However, unless and until he had been granted leave to remain, he was at the (possibly remote) risk of being prosecuted for a breach of section 24 of the 1971 Act, and there was also (said Beatson J, at [69]) “a risk that there will be an interference with family life”.

In response to Omar, the Secretary of State published a policy, entitled “Immigration Directorate Instructions Fee Waiver for FLR(O) Form (September 2013)”, which introduced a fee waiver. In paragraph 1.1, in respect of applications relying on family or private life, the policy provided that:

“Applicants will qualify for a fee waiver only where they can demonstrate on the basis of evidence provided that they are destitute, or where there are exceptional circumstances.”

However, the relevant human rights claims covered by the guidance were restricted to applications for leave to remain under the ten-year route or on ECHR grounds: it did not apply to other applications such as those under section 1(4) of the 1981 Act. The fee waiver was intended to make provision for those applicants who would otherwise be unable to exercise their right to respect for family and private life under article 8 or other ECHR rights (see paragraph 1.2.3). The policy has been subsequently been withdrawn; but, as I have described, the LTR child destitution fee exemption was incorporated into the 2013 Regulations and subsequent iterations (see paragraph 21 above).

The third case was Carter v Secretary of State for the Home Department [2014] EWHC 2603 (“Carter”), in which Stewart J had to consider the legality of the policy referred to above, dealing with a destitute applicant making an in-country application for leave to remain on article 8 grounds. In particular, he was concerned with an applicant who was not destitute within the meaning of the LTR child destitution exemption (i.e. receiving assistance from the local authority), but who (Stewart J found as a fact) could not afford to pay the application fee. Stewart J considered that Sheikh was of little assistance to him, because it dealt with a different category of article 8 rights “which were potential rather than actual”, and, if the applicant in his case did not have the application fee waived, then his article 8 rights would be set at nought. The judge found the policy to be unlawful, in that the refusal to waive the fee in the case of someone who had an arguable article 8 claim, who fell outside the definition of destitute but who could not in fact pay the fee (like the claimant in that case) was incompatible with the ECHR because, in practice, it denied the individual his article 8 rights (see [33]). Stewart J granted leave to appeal to the Court of Appeal but, as I understand it, that appeal was not pursued.

The Claimant was born in Stoke-on-Trent on 20 September 2003. He has never been outside the United Kingdom.

His parents are Jamaican nationals. They arrived in the United Kingdom on 4 August 2002, with leave to enter as visitors. Extensions were granted, first as students and then workers, until they ceased to be lawfully present in the UK on 5 March 2010. From that date, they were overstayers. They could not work, nor were they entitled to benefits.

From 31 July 2013, the Claimant and his parents were accommodated by Sandwell Metropolitan Borough Council pursuant to section 17 of the Children Act 1989 (“the 1989 Act”), which imposes a duty on a local authority to safeguard and promote the welfare of a child in its area by providing services appropriate to that child’s needs. (In this judgment, unless the context indicates the contrary, references to “section 17” are to section 17 of the 1989 Act.) It is well-established that, where a child’s parents are unlawfully present in the United Kingdom – as were the Claimant’s parents – a local authority is able to provide assistance to those parents as well as the child, but only insofar as it is necessary to do so because the family is destitute and it would be a breach of their rights under the ECHR and/or European Union law if they had to leave the UK on that account (R (Clue) v Birmingham City Council [2010] EWCA Civ 460). Therefore, the provision of such assistance means that the local authority has assessed the family as being destitute and is providing the minimum assistance necessary to meet that destitution so as to avoid a breach of the ECHR.

Prior to 12 February 2015 when the position changed (see paragraph 52 below), the immigration status of the Claimant and his parents was as follows:

Furthermore, at the age of ten (i.e. on 20 September 2013), the Claimant became entitled to apply for British nationality under section 1(4) of the 1981 Act, on the basis that he had been born in the United Kingdom and had resided here for ten years from his birth.

Such an application was made on the Claimant’s behalf on 12 March 2014. The application explained that the Claimant and his parents were in receipt of section 17 assistance, were destitute and could not afford the application fee which they asked to be waived. The application was returned on 17 March 2014, with a covering letter explaining:

“… as your application does not have the correct fee of £673.00 it has been rejected. The fee is prescribed by law and there is no discretion to waive the fee or to accept a lesser amount, irrespective of the particular circumstances of the applicant. The prescribed fee must accompany the application in order for the application to be valid.

…

For any further action to be considered you will need to resubmit a fresh application with all supporting documentation and correct fee using the payment slip aside.”

A pre-action protocol letter in relation to this decision was sent the following day; and this claim was issued on 26 June 2014. Permission to proceed was granted by Phillips J on 7 November 2014.

In the shadow of the claim, the Secretary of State responded to the request of 23 December 2013 for the issue of removal directions by letter dated 6 January 2015, which said the position of the Claimant and his parents would be reviewed in the light of their 2013 further representations and current article 8 rights; and, if refusal were maintained, then it was proposed to make removal directions that would trigger a right of appeal.

Following that review, on 12 February 2015 the Secretary of State granted the Claimant leave to remain, initially for 30 months, under paragraph 276ADE(iv) of the Immigration Rules. The same day the Claimant’s parents were granted leave to remain outside the rules – again, initially, for a period of 30 months – on the basis that, although they did not meet the criteria set out in Appendix FM and paragraph 276ADE of the Immigration Rules (which seek to codify the circumstances in which respect for family and private life would render removal from the United Kingdom a breach of article 8), having regard in particular to the best interests of the Claimant there were exceptional circumstances which made the grant of leave to remain appropriate. The leave has attached to it the right to work and access to public funds.

As a preliminary matter, Mr Eadie suggested that, following the grant of leave to remain to the Claimant and his parents, this claim has become academic. They are all able to enjoy family life, together and in the United Kingdom, whether the Claimant is granted British citizenship or not; and, in any event, the Claimant’s parents are now able to work and thus to pay the relevant fee for his nationality application. The Claimant’s parents worked in the United Kingdom until they were prohibited from doing so in 2010 and, now that they are again allowed to work, they have made it clear that they have every intention of doing so and are confident that they will obtain jobs. They do not suggest that, now, they are destitute. They are in a position to pay the fee; and no doubt will. They no longer seek mandatory relief requiring the Secretary of State to waive the fee in the Claimant’s particular case; they merely seek declaratory relief that, insofar as they fail to except children in receipt of local authority assistance from having to pay the application fee for registration as a British citizen, regulation 6 of and Schedule 4 to the 2013 Regulations were ultra vires and incompatible with article 8 of the ECHR.

In those circumstances, Mr Eadie submitted that the court should be slow to proceed with this claim, it having become empty: whatever the court decides will not in practice affect the rights and interests of the Claimant. That submission is to an extent reflected in section 84 of the Criminal Justice and Courts Act 2015 which will, when brought into force, amend section 31 of the Superior Courts Act 1981 to provide that this court must refuse permission to apply for judicial review, or refuse a remedy, when it appears to the court to be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, unless it is appropriate to do so for reasons of exceptional public interest.

However:

Mr Eadie did not press very hard to have the claim dismissed on the basis it was now academic or hypothetical; and, in the circumstances of this case, I am satisfied that I should exercise my discretion to deal with the substantive issue raised.

In coming to that conclusion, I have particularly taken into account the following:

Before I consider the grounds of challenge, it would be helpful to deal with one specific issue that arose during the course of debate before me.

As I have described (paragraphs 8 and following above), the policy behind the imposition of fees for nationality applications has been fiscally driven since 1982, with the policy from 2014-15 being one of setting fees to enable “the control of migration” (in the widest sense) to be cost neutral to the public purse. That policy objective is one of the fundamental planks of the 2014-15 Impact Assessment. As I have described (paragraph 10), that document set out the unit costs, as well as the relevant fee for 2013-14 and the proposed fee for 2014-15. Briefly, the unit cost for processing a child’s nationality application was said to be £144: there is no power to waive that fee. The unit cost for processing a postal application for leave to remain was said to be £278: that fee is waived if the applicant is a child and has the benefit of section 17 support (i.e. the LTR child destitution fee exemption).

At first blush, those figures suggest that the Secretary of State’s policy of not having any exemption or discretionary waiver for fees for child nationality applications may run contrary to the overarching fiscal policy, because it seems it will cost the public purse more to process one leave to remain application of a child (which will be fee exempt) rather than allow a fee exemption for that child’s nationality application on the grounds of destitution which will render leave to remain applications otiose (because nationality brings with it the right to reside). That adverse impact on the overarching policy appears to be more pronounced if the wider context is considered, because:

First, Mr Sparks (through Mr Eadie) provided further, up-to-date evidence as to the costs of processing applications and fees that have been set, as follows:

On the basis of these figures, Mr Eadie submitted:

Therefore, looking at a single case of a child in the category of the Claimant, Mr Eadie submitted that the Secretary of State’s policy and approach is not (or is not necessarily) “uneconomic”. In any event, the effect on the public purse cannot be considered by just looking at a single case: if an exemption is applied to this category, there is likely to be pressure to extend all exemptions available to leave to remain applications to nationality applications; and, if provision is made for a fee waiver, it is likely to result in there being more applications for waiver, with the result that processing costs will be increased, and income will be reduced, on a macro-scale. Those submissions were without prejudice to the non-economic submission he made that the Secretary of State is entitled to adopt a scheme that has minimal fee exemptions and waivers, even if such a scheme may have relatively harsh consequences in a particular case (see paragraph 68 below).

Whilst I accept some of the premises upon which those submissions were made, I cannot accept them all.

Therefore, the position is more complex than it first appears. Children who were born in the United Kingdom and who have spent no significant period away, will be able to apply for leave to remain after seven years. Their parent(s) will be able to apply for parasitic leave to remain which, if granted, will enable them to work. Therefore, when the child reaches age ten – when he can first apply for nationality – in most cases, he will not be in receipt of local authority assistance. If he is, then that is likely to be temporary. If a child is born in the United Kingdom and has spent his first ten years here, he is able to apply for citizenship at any time thereafter. The scheme is not such that the cost of processing the relevant applications will necessarily exceed the income from other relevant applications by the same individual; and, in any event, any shortfall is likely to be picked up, not by the State, but by other applicants by way of cross-subsidy.

Finally, before turning to the specific grounds of challenge, it would be convenient briefly to summarise the evidence of Mr Sparks as to why the Secretary of State has not included the fee exemption for children who apply to register British nationality under section 1(4) but who are in receipt of local authority assistance, which the Claimant submits she was legally obliged to include in the scheme – or, indeed, a discretionary waiver for such applicants. The evidence is set out in paragraphs 10-24 of his statement.

Mr Eadie accepted that, following cases such as Omar, if and to the extent that requiring a fee would breach an applicant’s article 8 rights, a power to waive the fee must be implied into the scheme; but, he submitted, not a waiver of any wider scope. Mr Sparks says that a general discretionary waiver is considered to be administratively unworkable, or at least it would place an unreasonable burden on those charged with maintaining the immigration system, because it would likely result in claims for fee waiver from those who could pay but wished to avoid paying; and it is difficult and expensive to investigate the validity of such claims. The result would be a greater burden on either the taxpayer or other applicants who would have to cross-subsidise the costs of processing applications for fee waiver.

However, of course, the Claimant does not say that there ought to be such a discretionary power; it is his case that there should be a fee exemption for applicants who are in receipt of local authority assistance, which would have minimal processing costs attached. Mr Sparks says (at paragraphs 22-3 of his statement) that it is the Secretary of State’s policy not to have a general exemption for fees on the basis of destitution, but to restrict waiver to those cases where it is necessary to enable an individual to exercise his or her human rights. The Secretary of State does not regard citizenship (unlike leave to remain) as a prerequisite to the enjoyment of such rights. Mr Eadie submitted that the Secretary of State is entitled to adopt a restrictive policy with regard to fee waiver, and restrict such waivers to the minimum to make the fee regime more robust; even if, in a particular case, some hardship (short of a breach of article 8) may ensue.

As his first ground, Mr Knafler submitted that, in failing to incorporate a fee exemption for children in receipt of local authority assistance into the statutory scheme, the Secretary of State acted ultra vires, on the following basis.

Section 52(3) of the 2006 Act expressly empowers the Secretary of State to provide for exceptions/exemptions and for a discretion to waive a fee in particular cases. However, that power is not entirely open; because statutory powers conferred for public purposes “can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended” (R v Tower Hamlets London Borough Council ex parte Chetnik Developments Limited [1988] AC 858 at page 872B-F per Lord Bridge, citing with approval a quotation from Wade, Administrative Law, 5th Edition at pages 355-6). No delegated power is therefore entirely unfettered. Anyone with a delegated power must exercise it purposively. If the statutory purpose is not express, then the decision-maker must ascertain the underlying statutory purpose and exercise the power to give effect to it. This principle was perhaps most elegantly described by Laws J (as he then was) in R v Somerset County Council ex parte Fewings [1995] 1 All ER 513 at pages 524-5 (in which he approved the corresponding passage from pages 399-400 of the 6th Edition of Sir William Wade’s book).

Mr Knafler took me to a number of authorities which, in different fields of public law, are illustrative. Several concern interference with access to the courts.

In R v Lord Chancellor ex parte Witham [1998] QB 575, it was held that increases in court fees were ultra vires section 130 of the Supreme Court Act (now the Superior Court Act) 1981, because in practice they denied access to the courts for persons on very low income by failing to reduce or remit fees on grounds of financial hardship. In response to the submission that the statute’s enabling words were wide enough to allow what had been done, Laws J (as he then still was), giving the leading judgment of the Divisional Court, said:

“That submission would be good in a context which does not touch fundamental constitutional rights. But I do not think it can run here. Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect by express provision – permits the executive to turn people away from the court door. That has not been done in this case.”

R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 also concerned access to the courts. It was held that the challenged social security regulations (Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 (SI 1996 No 30)) were ultra vires the Asylum and Immigration Appeals Act 1993, because they were likely to interfere with the ability of impecunious asylum-seekers to pursue asylum claims by depriving them of benefits. Waite LJ said (at page 293E):

“The principle is undisputed. Subsidiary legislation must not only be drawn as not to 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.”

R v Secretary of State for the Home Department ex parte Saleem [2001] 1 WLR 443 concerned rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996, which provided for deemed receipt of notices sent by post which, in combination with other rules (including rule 13(2) which required an application for leave to appeal to be made within five days of a decision having been received), meant that some individuals who wished to appeal were denied the practical opportunity of doing so. With regard to the interference that this posed to proper access to the courts, Hale LJ (as she then was) said (at page 458B-H):

“I also accept that the more fundamental the right interfered with, and the more drastic the interference, the more difficult it is to read a general rule or regulation making power as authorising that interference….

… The effect of this rule is more drastic than the effect of the [rule in Witham]. It does not simply interfere with the opportunity of an appeal which Parliament has decided that an asylum seeker should have. It completely deprives her of it, even if she has behaved with complete propriety and done everything required of her, and irrespective of the merits of her appeal.

… The effect of rule 42(1)(a) is in certain circumstances to destroy ‘the very essence of the right’”.

Relying upon the principle of legality and this line of cases, Mr Knafler’s submission was essentially simple. He submitted that, in section 1(4) of the 1981 Act, an individual of good character who had been born in the United Kingdom and who had remained here without significant absences for ten years was entitled to British citizenship: he emphasised that section 1(4) was written in terms of “entitlement”. He accepted that that right was different from the right of access to the courts or the right to asylum; but it was nevertheless an important substantive (rather than procedural) right falling, he said, “within the highest bracket of national law”. Parliament has put that right on a statutory basis, and has set out the substantive conditions which give rise to the right in an individual case. Although it is a statutory condition that a valid application be made, that only enables the Secretary of State to provide for an appropriate process for application and registration. Parliament clearly envisaged that the Secretary of State might include, within that process, the requirement for a fee; but Parliament could not have intended for her to use that power to impose a fee that would, alone, defeat entirely the substantive right it had granted. Requiring a destitute child to pay a fee, in circumstances in which it is patently impossible for him to do so, thus went beyond the powers granted to her by Parliament. Indeed, rather than exercise her power to grant exemptions from fees in such a way as to further the Parliamentary intention as set out in section 1(4), she had used it to defeat that intention.

Mr Eadie submitted that she had done no such thing. Section 1(4) of the 1981 Act requires an application for registration as a British citizen to be made; and section 51 of the 2006 Act enabled the Secretary of State to make an Order requiring the payment of a fee on such an application, and any exceptions she considered appropriate. The discretion granted to her by Parliament in respect of the scheme generally, and the imposition of fees (including exemptions and waivers) specifically, is patently wide; and entitles the Secretary of State to adopt a scheme in which exceptions to the requirement to pay a fee are very restricted (although not of course, as the Secretary of State accepts) so restrictive as to result in a breach of the applicant’s human rights).

The relevant Order (i.e. the 2011 Fees Order) required an application to be accompanied by the fee as specified in the 2013 Regulations. Those Regulations were subject to an affirmative resolution of both Houses of Parliament before they were made. They patently had no fee exemption for child section 1(4) applicants, nor any discretion by which a waiver could be made. Therefore, the absence of a power to waive such a fee must be taken to have the mark of Parliamentary approval, with the clothing of democratic legitimisation that that involves. In those circumstances, Mr Eadie submitted, the court should be slow to find the 2013 Regulations to be unlawful. As Lord Sumption JSC recently said in Bank Mellat v Her Majesty’s Treasury (No 2)[2013] UKSC 39 at [44]:

“… [W]hen a statutory instrument has been reviewed by Parliament, respect for Parliament’s constitutional function calls for considerable caution before the court will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliament’s review. This applies with special force to legislative instruments founded on considerations of general policy.”

Mr Eadie also submitted that fees for nationality applications fell within the economic and social sphere where (as Parliament must have known) the discretion in the State is particularly wide. Mr Eadie said (paragraph 30 of his skeleton argument):

“It is also to be noted that the 2013 Regulations are concerned with a classic issue of general policy involving decisions about the use of resources and the extent to which the UK taxpayer should subsidise the immigration system: see paragraph 7 of the Explanatory Memorandum and the evidence of Mr Sparks. How the various competing interests are to be balanced is quintessentially a political and legislative decision.”

I do not pretend that this issue is an easy one; but, having considered the contentions with particular care, I am persuaded by those of Mr Eadie. In coming to that conclusion, I have particularly taken into account the following.

In all of the circumstances, I simply cannot say that, in adopting a scheme that did not include in regulation 6 of and Schedule 4 to the 2013 Regulations a fee exemption for children who apply for registration of nationality under section 1(4) at a time when they are in receipt of local authority assistance, the Secretary of State exceeded the powers given to her by section 1(4) of the 1981 Act and section 51 of the 2006 Act.

Ground 1 consequently fails.

Mr Knafler’s second ground is that, in not according the Claimant a fee exemption, regulation 6 of and Schedule 4 to the 2013 Regulations are incompatible with article 8 of the ECHR; or they discriminate against the Claimant on the ground of his impecuniosity under article 14 read with article 8.

Mr Knafler submitted that the failure to grant the Claimant fee exemption interfered with his family life, because it imposed upon him and his family the uncertainties of living in the United Kingdom without the right of residence or leave to remain and without the other practical benefits of citizenship. His rights, of course, have to be considered through the prism of the UNCRC, i.e. the interests of the Claimant as a child have to be a primary consideration in the decision-making process of the Secretary of State through which she came to adopt the scheme without the exemption.

However, Mr Knafler’s primary submission was that the failure to grant the Claimant fee exemption infringed his right to respect for his private life. He accepted that whether the grant of nationality, or its status, fell within the ambit of article 8 was a developing area. However, for the current position, he relied upon R (Johnson) v Secretary of State for the Home Department [2014] EWHC 2386 (Admin) (“Johnson”), in which the claimant claimed that it was incompatible with his article 14 rights (when read with article 8) for the Secretary of State to decline to recognise him as a British citizen on the ground that he had been born in Jamaica as the illegitimate child of a British citizen, in circumstances in which, had he been legitimate, he would have been recognised. Illegitimacy is, of course, a personal characteristic specifically identified in article 14 as being a ground of improper discrimination (see paragraph 34 above).

In Johnson, Dingemans J reviewed the European authorities, including Mennesson v France (2014) Application no 65192/11, in which he translated the relevant passage as:

“Even if article 8 of the [ECHR] does not guarantee a right to acquire a particular nationality, it remains that nationality is an element of personal identity.”

He concluded (at [37]):

“In these circumstances I am satisfied that the Claimant’s claim that he was denied British nationality because of his illegitimate status is within the ambit of article 8. This is because the claim involves the Claimant’s social identity, as a person entitled to stay in the United Kingdom, as the child of a British father…” (emphasis added).

He went on to find that, in respect of his claim for citizenship, there had been a violation of article 14 read in conjunction with article 8, because the claimant was being treated differently on the ground of his illegitimacy and that different treatment was unjustifiable.

I consider there is now overwhelming force in the proposition that nationality is a vital element of an individual’s fundamental identity, attracting the protection of article 8. Nationality has an intrinsic importance. I am not talking here about having citizenship of some country rather than being stateless – Mr Knafler accepts that it may well be straightforward for the Claimant to obtain Jamaican citizenship because both his parents are Jamaican nationals – I am talking of the nationality of a particular country, in this case British nationality and citizenship of the European Union that comes with it.

That is reflected in the authorities. In R (RJM) v Secretary of State for Work and Pensions [2009] UKHL 63 (“RJM”) at [5], Lord Walker indicated that nationality – whether innate or acquired – is important to the development of an individual’s personality, reflecting important values protected by article 8. In ZH (Tanzania) at [32], Baroness Hale said:

“Nor should the intrinsic importance of citizenship be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults…”.

Mr Eadie submitted that Lady Hale had here elided two distinct concepts, namely (i) citizenship and (ii) the specific consequences of a child being able to stay in a specific country in which he or she has lived, a distinction that was not material on the facts of that case but important in the Claimant’s case because, with or without British citizenship, the Claimant (and any child in the same position as he) is going to continue to enjoy being a child in the United Kingdom as, by the time they comply with the ten year requirement for section 1(4), they will be entitled to (fee exempt) leave to remain. There is some superficial force in that submission, because British citizenship brings with it the right of abode and many of the benefits of that also flow from the right to reside in the United Kingdom granted by leave to remain. However, I do not consider that the benefits of British citizenship end there; because Lady Hale referred to “the intrinsic importance of citizenship”, and the advantages for a child of growing up in country, and with a culture and language, that only become his “own” by virtue of citizenship of that country. The nationality of a particular country does more than confer the right of abode and other specific identifiable rights: as Dingemans J emphasised in Johnson (at at [35]-[36]), it is an important part of a child’s social identity. Indeed, it seems to me that the level of fee for an application to register the nationality of a child under section 1(4) of the 1981 Act reflects, not just the advantages of the right of abode that comes with citizenship, but also the inherent benefit to an applicant of being able to call Britain his or her own.

Mr Eadie relied upon another analysis of the authorities, namely that of Ouseley J in AHK & Others v Secretary of State for the Home Department [2013] EWHC 1426 (Admin) (“AHK”). Having stressed that the question of whether the ECHR is engaged must be made on a fact-specific basis, Ouseley J continued as follows:

“44.

The [ECHR] decision in Genovese v Malta [2012] FLR 10 [to which Dingemans J also referred in Johnson], concerned the refusal of Maltese citizenship to a child born out of wedlock to the British mother but with a Maltese father. A child born out of wedlock could only be granted Maltese citizenship if born to a Maltese mother. The court repeated what it had often said before to the effect that article 8, and indeed the ECHR as a whole, did not guarantee a right to acquire a particular nationality, but “an arbitrary denial of citizenship might in certain circumstances raise an issue under article 8”. There was no family life in that case with the father and there was no breach of article 8 in its refusal. But the decision proceeds on the basis that a breach of article 8 can arise in the context of the refusal of naturalisation where there was an arbitrary or, as in that case, a discriminatory refusal. It does not support any broader potential for a refusal of naturalisation to interfere with article 8.

45.

A submission that the mere nature or degree of effect of a refusal of naturalisation, without some further quality of arbitrariness or discrimination, suffices to engage article 8 seems to me ill-founded on this [European Court] jurisprudence. It has not actually held, so far as I am aware, that where the refusal of naturalisation impacts sufficiently seriously on any of the aspects of life covered by the full width of article 8, it is then for the State to prove why it should not be granted. That would mean in effect that there would be a right to naturalisation, notwithstanding that the [European Court] has accepted that there is no such right, and notwithstanding the entitlement of a State to set the terms for and apply its tests to any application for naturalisation. To hold that a refusal of naturalisation, in the absence of an arbitrary or discriminatory decision, interferes with article 8 rights would be to advance beyond what the [European Court] has held. That is not for the domestic courts. That is very different from holding that interference can arise where naturalisation is refused on an arbitrary or objectionably discriminatory basis, as in Genovese.

…

47.

If the correct approach is broader and does not depend on the arbitrary or discriminatory nature of the decision, I conclude that the evidence of interference with art 8 rights is exiguous and not made out in FM's case. He merely states that he has a wife and children who are British nationals. There has to be a greater interference than the mere continuation of the lawful status which the Applicant successfully sought for the purpose of remaining in the UK.

48.

I am not persuaded that the article 8 rights of AM, AS or AHK are interfered with either. In no case has it led to any threat to their existing status or ability to live with their family, or any reduction in their ability to travel. They continue to be subject to the uncertainties and problems which apply to those who do not have UK passports when they return to the UK or travel abroad with family members who are British citizens. They may feel less secure in their future. That means no more than that the status quo continues, a state of affairs which does not of itself involve any interference with article 8 rights. The apprehension of reputational damage from the risk or fact that the refusal has or will become generally known or known to friends, community and others, allied to the problems of putting forward evidence to refute them, cannot add much to the more direct effects of the refusal of the benefits of naturalisation. I find it very difficult to see that the reasons for a decision can of themselves constitute an interference with article 8 rights, if the decision does not. All in all, these factors do not seem to be of any real significance such as to amount to an interference with article 8 rights. If there is interference, it is of a quite modest kind.”

I do not regard these judgments – Johnson and AHK – as in any way inconsistent. From them can be drawn the following propositions. Nationality is a vital element of an individual’s fundamental identity, attracting the protection of article 8. The ECHR does not guarantee a right to acquire any particular nationality; but a denial of citizenship on an arbitrary or discriminatory basis may, of itself, fall within the scope of article 8 as a failure to respect an individual’s private life. A denial of citizenship may also amount to a failure to respect an individual’s family life, if (e.g.) it threatens an individual’s ability to live with their family. Whether article 8 is engaged is a fact-specific issue.

In the Claimant’s case, there was an issue as to whether article 8 was even engaged. Although a grant of citizenship confers certain benefits over and above the right of abode (e.g. the right to vote, and the right to education), Mr Knafler was unable to identify any practical benefit that would accrue to a child from having citizenship, over and above the benefits that will derive from having leave to remain, the uncertainties and inconvenience that those who do not have British passports may have when (e.g.) travelling abroad and returning to the United Kingdom, and the fact of enjoying citizenship. Notably, there is no real adverse impact on the Claimant’s family life: even before he and his family had been granted leave to remain, the Claimant was bound to have enjoyed a shared family life with his parents, whether or not he obtained British citizenship. The inability of the Claimant to obtain British nationality of course led to continued uncertainties and general problems associated with living in the United Kingdom without a right of residence; but, as in AHK, that merely meant an unsatisfactory status quo continuing, without any interference with article 8 rights. That is so even when the matter is looked at through the prism of the UNCRC. Otherwise, the only prejudice that the Claimant has suffered was the inability to enjoy the status of British citizenship, at least on a temporary basis.

Consistent with the observations and finding of Ouseley J in AHK, Mr Eadie compellingly submitted that that was insufficient even to engage article 8 – the Secretary of State’s policy was not arbitrary or discriminatory – or, if article 8 was engaged, there was nothing sufficient to amount to interference with article 8. In my view, article 8 is arguably engaged here; but I am persuaded that that the failure of the Secretary of State to grant the Claimant fee exemption was insufficient to amount to an interference with the Claimant’s article 8 rights. That is my firm view.

However, even if there was interference, it was marginal and, at most, exceptionally modest; and would – in my view, clearly – be justified by the Secretary of State’s legitimate desire (i) to limit the fees of other applicants, and (ii) to have a robust scheme with minimal exceptions. Although at first blush it may appear surprising or odd, upon proper consideration it is not arguable that the Secretary of State’s approach is arbitrary or otherwise in breach of article 8.

For those reasons, in my judgment, in adopting a scheme that did not include in regulation 6 of and Schedule 4 to the 2013 Regulations a fee exemption for children who apply for registration of nationality under section 1(4) at a time when they are in receipt of local authority assistance, the Secretary of State did not breach article 8.

Finally, I turn to article 14. It is clear from the opening words of the article that some other right under the Convention must be implicated before article 14 can be relied upon. Mr Knafler relied upon article 8. Mr Eadie denied that that article was sufficiently engaged. Despite my findings in relation to article 8 itself, for the reasons set out above and in line with Johnson, I accept Mr Knafler’s submission that a denial of nationality is sufficiently within the ambit of the private life limb of article 8 to engage article 14.

However, for the purposes of article 14, the difference in treatment must be on one of the proscribed grounds set out in the article. Although these specifically include “property”, Strasbourg has always been reluctant to hold that a particular level of poverty is an “other status”, as Mr Knafler contends. There is no authority to that effect. Mr Knafler relies upon RJM, in which the House of Lords indicated that “personal characteristic” has a broad and liberal meaning in the context of article 14; and found that “homelessness” was a “personal characteristic” and therefore a relevant status within article 14. However, there is nothing in the opinions in that case which supports the wider proposition relied upon by Mr Knafler. It is well-established that it is not for the national courts to interpret the ECHR more widely than the Strasbourg jurisprudence allows (see, e.g., R (Ullah) v Special Adjudicator [2004] UKHL 26 at [20] per Lord Bingham, and R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 per Lord Brown at [106]).

Thus, I do not consider that this is a discrimination case; and article 14 adds nothing to the article 8 claim.

For those reasons, despite Mr Knafler’s able efforts, I refuse this application.