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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Williams, R (on the application of) v The Secretary of State for the Home Department  EWCA Civ 98 (28 February 2017)
Cite as:  EWCA Civ 98,  1 WLR 3283,  WLR(D) 172
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ON APPEAL FROM ADMINISTRATIVE COURT
SITTING IN BIRMINGHAM
MR JUSTICE HICKINBOTTOM
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE UNDERHILL
LADY JUSTICE MACUR
| R (on the application of WILLIAMS)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
James Eadie QC and William Hansen (instructed by the Government Legal Department) for the Respondent
Hearing dates: 18 &19 January 2017
Crown Copyright ©
Lord Justice Davis:
(1) First, it is said that the operation of the legislative scheme without an available power of fee exemption or waiver for cases such as the present was beyond the powers conferred on the Secretary of State by the primary legislation ("the ultra vires ground");
(2) Second, it is said that such a result operated unjustifiably to breach the appellant's rights under Article 8 of the European Convention on Human Rights ("the Article 8 ground");
(3) Third, it is said that such a result gave rise to unjustifiable discrimination contrary to the appellant's rights under Article 14 of the Convention ("the Article 14 ground");
(4) Fourth, it is said that such a result contravened common law principles of legality ("the common law ground").
The legal framework
"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."
"… a person shall not be registered under any provision of this Act as a citizen of any description… unless… any fee payable by virtue of this Act in connection with the registration… has been paid…"
That provision was replaced, but with corresponding effect, by s. 42A as introduced, as from 1 January 2004, by provisions of the Nationality, Immigration and Asylum Act 2002.
(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.
(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"
"Where these Regulations specify a fee which must accompany an application for the purposes of the [2011 Order], the application is not validly made unless it is accompanied by the specified fee."
Observations on statutory scheme
"…the Home Office considers that citizenship is not a necessary prerequisite to enable a person to exercise their convention rights in the UK. Rather, where a person's rights would be breached by removal it is open to such person to make an application for leave to remain…"
"It seems to me that if a person demonstrates upon proper proof that they cannot pay the fee then a policy which does not provide for waiver in those circumstances is incompatible with a Convention right."
(1) The ultra vires ground
(1) it is to be taken as a given that the Secretary of State's powers are to be exercised in good faith and not arbitrarily;
(2) s. 42(1) of the 2004 Act in terms requires that the amount of fees, which may exceed the administrative costs, should reflect the benefits to the individual estimated as likely to accrue; and
(3) the amount of fees required can only be exacted after prior scrutiny of both Houses of Parliament.
"The requirement for payment of a fee for those children in receipt of local authority assistance is therefore more akin to a postponement of the ability to register."
I agree. Moreover such a consideration would extend generally to those unable, at a given moment in time, to pay the required fee for a citizenship application by reason of destitution. Destitution is not, after all, to be assumed to be a permanent state. Further, there may be the possibility of a gift or loan from other family members or well wishers. It is also relevant that the mandatory requirement of a fee for s. 1(4) applications has not, on the evidence, precluded any very significant number of applicants wishing to apply from so applying. Moreover, in any residual case (which perhaps may be hard to envisage in practice) there is the concession of the Secretary of State that she would be bound on an application for citizenship registration not to require payment of the fee if an interference with an individual's Article 8 rights otherwise would be involved.
The Article 8 ground
"Nor should the intrinsic importance of citizenship be played down. As citizens those children have rights which they will not be able to exercise if they move to another country…"
"The provisions of Article 8, however, do not guarantee a right to acquire a particular nationality or citizenship. Nevertheless, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual."
Reference also should be made to the detailed and cogent discussion of Ouseley J of the issue in the domestic case of AHK v Secretary of State for the Home Department  EWHC 1426 (Admin), at paragraphs 41 to 48 of his judgment. Johnson is no real authority for the contrary proposition. Not only was that a case where the denial of citizenship was being assessed as "within the ambit of" Article 8 for Article 14 purposes, rather than asserted as a breach of Article 8 taken on its own, but also the denial of citizenship was based on a refusal to recognize biological relationships bearing on the child applicant's social identity as part of his private life: which is not the case here.
The Article 14 ground
"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."
"The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or "status", are capable of amounting to discrimination within the meaning of Article 14. Moreover, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment."
"But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy."
The common law ground
Lord Justice Underhill:
Lady Justice Macur: