The high court in the UK has stated that a government decision to profit from the registration of children as British citizens is unlawful
The case, challenging the lawfulness of the profit element of the Home Office’s fee for a child to register as a British citizen and the lawfulness of charging a fee where a child cannot afford to pay, was heard by Mr Justice Jay in the high court last month. In the proceedings, the applicants had called on the court to remove the profit element of the fee in children’s registration cases, to introduce a waiver for children whose parents or carers are unable to afford the fee to register, and to provide a fee exemption for children in local authority care. The high fee has been a barrier to many families with children who, having been born in the UK and lived here for their first 10 years of their lives, have the right to be registered as British citizens as they cannot afford the high cost of registration. These children remain undocumented.
The landmark judgment found that the Home Office’s £1,012 child citizenship fee, described by Amnesty International UK as “shameless profiteering”, is unlawful.
The current fee affects tens of thousands of children in the UK. The Project for the Registration of Children as British Citizens, the organisation that brought the case on behalf of two children affected by the high fees with support from Amnesty International and with the pro bono legal assistance of law firm Mishcon de Reya, estimates there are about 120,000 children in the UK without British citizenship, approximately 54 per cent. of whom were born there. As these children mature to adulthood and have children themselves, there is a concern that the issue will cross generations as a child who is unable to register as a British citizen may later be the parent of a child who, for that reason, is not born British.
The court considered a substantial amount of evidence which indicated that the fee prevented many children from registering for British citizenship, leaving them feeling alienated, excluded, and not fully assimilated into the culture and social fabric of the UK.
Before the passage of the British Nationality Act 1981 (the “Act”) a person born in the UK was born British, however since the legislation came into force a person born in the UK is only automatically a British citizen if one of their parents is either a British citizen or is settled in the UK. Children have the right under the Act to register as British citizens to mitigate the effect of the revocation of automatic citizenship by birth. In this way, all children born and growing up in the UK may be recognised equally as British citizens.
The Home Office has suggested that the fee is necessary to cover the cost of processing child citizenship applications however the administrative cost of doing so amounts to £372 meaning the department makes a profit of £640 on the registration of every child. The excess funds are reportedly used to fund other parts of the Home Office’s immigration activities.
The judgment requires the Home Office to reconsider the fee and ensure that children’s best interests are taken fully into account in doing so. The court has made clear that where a child has a right to British citizenship it will generally be in the child’s best interests to be registered as British.
While the court ruled that the Home Office’s failure to consider children’s best interests rendered the fee unlawful, it rejected a separate argument that there was simply no power in law to set the fee above administrative cost and beyond the reach of many children entitled to citizenship. The court has granted a certificate to the claimants to apply directly to the supreme court for permission to appeal on this point. It has also granted permission to the Home Office to appeal its decision.
