A child born in the UK challenged the £1,012 registration fee for British citizenship as ultra vires, arguing it rendered her statutory right nugatory due to unaffordability. The Supreme Court dismissed the appeal, holding Parliament had expressly authorised the Secretary of State to set fees at that level under the Immigration Act 2014.
Background
The appellant, O, was born in the United Kingdom in July 2007 and had never left the country. She held Nigerian citizenship but, having lived in the UK for her first ten years, satisfied the requirements under section 1(4) of the British Nationality Act 1981 (‘the 1981 Act’) to apply for registration as a British citizen. O was one of three children of a single parent in receipt of state benefits. The family had been supported by the local authority since 2015 on the basis of destitution. An application was made for registration in December 2017, but O’s mother could only raise £386 — sufficient to cover the administrative cost of processing but far short of the £973 fee then in force. The Secretary of State refused to process the application. By April 2018, the fee had risen to £1,012, deliberately set above administrative costs to generate a surplus to subsidise other parts of the immigration and nationality system.
O, joined by The Project for the Registration of Children as British Citizens (‘PRCBC’), challenged the level of the fee as ultra vires the enabling power in section 68 of the Immigration Act 2014 (‘the 2014 Act’). The central contention was that the fee rendered nugatory the underlying statutory right to British citizenship for many children who could not afford it.
The Issue(s)
The sole issue before the Supreme Court was whether the fees regulations setting the registration fee for children at £1,012 were ultra vires the rule-making power conferred by section 68 of the 2014 Act. The appellants argued that the Secretary of State lacked the power to set the fee at a level that effectively prevented many children from exercising their statutory right to register as British citizens. Specifically, the court was asked to consider whether the principle that subordinate legislation must not render nugatory rights conferred by other primary legislation applied so as to invalidate the fees regulations.
Importantly, it was accepted by the appellants that this case did not engage any fundamental common law right or any Convention rights under the Human Rights Act 1998. It was also undisputed that many children and their families could not afford the fee.
The Parties’ Arguments
The Appellants
Mr Richard Drabble QC submitted that the 1981 Act constituted a constitutional settlement conferring a statutory entitlement to citizenship under section 1(4). He argued that the fee-setting mechanism was merely ancillary to this right. Since many children could not pay, their right was rendered nugatory by the high fees. He relied principally on the Supreme Court’s decision in R (UNISON) v Lord Chancellor [2017] UKSC 51 and the Court of Appeal’s decision in R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (‘JCWI’).
The Secretary of State
Sir James Eadie QC submitted that the statutory scheme in the 1981 Act and the 2014 Act should be read as a whole. Parliament had expressly authorised the Secretary of State to set fees exceeding administrative costs and to take into account the benefits accruing from citizenship and the costs of other immigration functions. The fee was a pre-condition of registration embedded in the statutory scheme itself.
The Court’s Reasoning
Statutory Interpretation
Lord Hodge, delivering the lead judgment with which Lord Briggs, Lord Stephens, and Lady Rose agreed, emphasised that the question was one of statutory interpretation: whether Parliament had authorised in primary legislation the imposition of the challenged fees by subordinate legislation. The court reaffirmed the objective nature of statutory interpretation:
“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.”
Lord Hodge traced the legislative history from the 1981 Act through the 2004, 2006, 2007, and 2014 Acts, showing a progressive expansion of the Secretary of State’s power to set fees exceeding administrative costs. Section 42(1) of the 1981 Act had expressly made registration conditional upon payment of the prescribed fee. The 2014 Act then provided a comprehensive framework in section 68, expressly permitting fees that exceeded the costs of exercising the relevant function and which could subsidise other immigration and nationality functions.
The Principle of Legality and Fundamental Rights
Lord Hodge carefully distinguished the present case from those involving fundamental common law rights. He noted that the principle of legality — requiring express language or necessary implication before fundamental rights can be overridden — had no application because the case did not concern a fundamental common law or constitutional right. He cited Lord Hoffmann’s well-known passage from Ex p Simms:
“Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.”
However, he held that this rigorous rule of construction did not apply to the statutory entitlement to registration as a British citizen, which was not a vested common law right but a statutory procedure subject to conditions specified by Parliament.
UNISON and JCWI Distinguished
Lord Hodge held that UNISON, in so far as it rested on the common law fundamental right of access to the courts, had no relevance to this appeal, which involved no vested fundamental right. As for the JCWI principle — that specific statutory rights are not to be cut down by subordinate legislation passed under a different Act — Lord Hodge treated this as an interpretive presumption rather than a free-standing rule of law:
“If the court, having taken into consideration the established assumptions or presumptions concludes that statute 2, expressly or by necessary implication, has empowered the executive to make subordinate legislation which has the effect of removing rights conferred by statute 1, the principle enunciated by the Court of Appeal in JCWI imposes no additional hurdle for the Secretary of State.”
He also corrected Waite LJ’s formulation in JCWI that subordinate legislation must not conflict with statutory rights already enacted by other primary legislation, noting that this extended the principle beyond the question of vires and was, to that extent, incorrect.
Application to the Facts
Applying the interpretive framework, Lord Hodge found that the 2014 Act expressly authorised the Secretary of State to set fees at levels exceeding administrative costs, to take into account the benefits accruing from citizenship, and to subsidise the wider immigration and nationality system. The Act imposed no criterion of affordability and did not require fee waivers for children. Parliament had delegated the decision on exceptions and waivers to the Secretary of State. Citing Davis LJ in Williams, Lord Hodge affirmed:
“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.”
He concluded that Parliament had authorised the subordinate legislation fixing the impugned fee, and that the appropriateness of imposing such a fee on children was a question of policy for political determination, not for judges.
Lady Arden’s Concurrence on Pre-Legislative Materials
Lady Arden agreed with Lord Hodge but delivered a separate concurrence addressing the role of pre-legislative materials in statutory interpretation. She emphasised that such materials could go beyond merely providing background and context, and could in appropriate cases influence the meaning of a statutory provision. She endorsed the model of the “informed judge” described by Viscount Simonds and stated that the increasing complexity of statute law in the 21st century made pre-legislative materials even more valuable.
Practical Significance
This decision confirms that a statutory entitlement to registration as a British citizen — even one of acknowledged importance — does not attract the heightened protection afforded to fundamental common law or constitutional rights. Where Parliament has expressly authorised the executive to set fees at levels exceeding administrative costs and has not imposed any affordability requirement, the courts will not read in such a requirement by interpretive means. The JCWI principle operates as an interpretive presumption but does not override clear statutory authorisation.
The judgment clarifies the limits of UNISON: that decision’s reasoning based on the constitutional right of access to justice does not extend to statutory rights that are not analogous to fundamental common law rights. The court also declined to engage with arguments based on the UK’s obligations under the 1961 Convention on the Reduction of Statelessness, raised by Amnesty International UK, on procedural grounds and because of the dualist approach to international law.
The decision leaves open the political question of whether the fee regime is appropriate, while making clear that the legal challenge fails. The earlier finding that the Secretary of State breached section 55 of the Borders, Citizenship and Immigration Act 2009 (the duty to safeguard and promote the welfare of children) stands, though only declaratory relief was granted on that ground.
Verdict: The Supreme Court unanimously dismissed the appeal, holding that the fees regulations setting the registration fee for children at £1,012 were not ultra vires. Parliament had expressly authorised the Secretary of State in the Immigration Act 2014 to set fees at a level exceeding administrative costs, and the statutory scheme imposed no requirement of affordability or fee waiver for children.
