On 18 February the Court of Appeal upheld the High Court’s finding that the Secretary of State had failed in her duty under s.55 of the Borders, Citizenship and Immigration Act 2009 to assess children’s best interests and ensure that these were a primary consideration (the “s.55 duty”) when setting the fee for children’s applications for registration of their entitlement to citizenship.
In December 2019, the High Court held that the Secretary of State had breached her s.55 duty: please find a summary here. The Secretary of State appealed against that finding. The Court of Appeal dismissed her appeal. In doing so, the Court found that (i) witness evidence filed by the Secretary of State did not demonstrate that the s.55 duty had been complied with; and (ii) the Secretary of State’s reliance on Parliamentary debates to “fill [that] evidential gap” was prohibited by Article 9 of the Bill of Rights and the general principles of parliamentary privilege.
Before the High Court, the Claimants had also challenged the fee on the basis that it was ultra vires. Finding itself bound by previous Court of Appeal authority, the High Court did not hold for the Claimants on that ground. The Respondents cross-appealed against that finding. Finding that the relevant authority remained binding on them, the Court of Appeal dismissed that cross-appeal but granted the Respondents permission to appeal to the Supreme Court.
Sir James Eadie QC
acted for the Secretary of State for the Home Department.
Jason Pobjoy acted for the Second Respondent (O), instructed by Consonant; Isabel Buchanan acted for the First Respondent (PRCBC), instructed by Mishcon de Reya.
Please find the full judgment here.