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On the 19th of December the High Court held that the Home Office failed in its duty to assess children’s best interests and ensure that these were a primary consideration when setting the fee for children’s applications for registration of their entitlement to British citizenship.

The case was brought by three Claimants: the Project for the Registration of Children as British Citizens, a charitable organisation focussed on the registration of children as British citizens; O, a 12 year old girl who is entitled to British citizenship under s.1(4) of the British Nationality Act 1981 (“the BNA 1981”); and A, a three year old girl whose biological father was British and who had applied for citizenship under s.3(1) of the BNA 1981. The claim challenged the level of fee imposed by the Home Office for registration of children’s entitlements to citizenship arising under the BNA 1981. That fee is currently set at £1,012; £372 of which represents what the Home Office says to be the costs of processing the application; the remaining £640 of which cross-subsidises the immigration system. O and A were both unable to afford the fee and thus unable to register their citizenship. 

The Court accepted that there was a “mass of evidence” that (1) a significant number of children, and “no doubt the majority growing up in households on low or middle incomes” could only pay the fee by making unreasonable sacrifices and that the fee was thus unaffordable; and (2) children born in the UK and identifying as British but prevented from registering their entitlement would feel “alienated, excluded, isolated, ‘second-best’, insecure and not fully assimilated into the culture and social fabric of the UK”.  In contrast, the Court held that there was “no evidence … that [the Secretary of State] has identified where the best interests of children seeking registration lie, has begun to characterise those best interests properly, has identified that the level of fee creates practical difficulties for many … ; and has then said that wider public interests considerations … tilts the balance.” Accordingly, the Court made a declaration that the Secretary of State had breached its duty to act in children’s best interests when setting the relevant fees.  

The Claimants also challenged the level of the fee on the basis that it was ultra vires. Finding itself bound by a previous Court of Appeal judgment, the Court did not hold for the Claimants on this ground. However, the Court has granted a “leapfrog” certificate on the basis that the Claimant’s case on this ground was arguable in the Supreme Court. 

Jason Pobjoy and Isabel Buchanan, instructed by Solange Valdez-Symonds of Consonant, acted for A.