In PRCBC and others v SSHD [2019] EWHC 3536 (Admin), the High Court held that the £1,012 fee prescribed by the Immigration Nationality (Fees) Regulations 2018 was unlawful, and that the Home Office had failed to consider the best interests of children, as required by the Border Citizenship and Immigration Act 2009 s. 55.
Despite the positive outcome, this judgement highlights the movement of government policy towards a ‘self-financing’ system of citizenship. This is alarming, because citizenship should not be tied to economic means. Amnesty International has reported that denying British citizenship to children negatively impacts their right to work, security, and identity. Unfortunately, numerous children living in the UK face this uncertainty.
PRCBC AND OTHERS V SSHD [2019]
In this case, there were three claimants: The Project for the Registration of Children as British Citizens, and two children (‘O’ and ‘A’, both represented by litigation friends). The claimants challenged the lawfulness of the Home Office fee. Despite the fact that both O and A met the legal requirements for accessing British citizenship, the Home Office rejected both their claims on the ground that the administrative fee must be paid in order to proceed with their applications.
Child O was born in the UK on the 14 July 2007 and had never left the UK. O’s mother was a single parent in receipt of state benefits. O said to the court that she perceived herself as British and wished to be widely accepted by her friends and society “like them”.
Child A was born in the UK on the 13 June 2016. Her mother was Nigerian and was married to a Lithuanian citizen. However, A’s biological father was a British citizen. A’s family was in receipt of state benefits. Arguably, the fee imposed by the Home Office was discriminatory because both O and A were on state benefits. Yet the fundamental international human right enshrining everyone's 'right to a nationality’ should not be undermined by lack of economic means.
Additionally, the Home Office admitted that the cost of processing a child citizenship application was just £372 - meaning that the department was making profit of £640 on each application. The case of O and A was extremely important because it highlighted that citizenship is becoming a privilege tied to financial means.
CITIZENSHIP: AN ABSOLUTE RIGHT OR PERSONAL CHOICE?
The case also investigated whether citizenship is an absolute right or personal choice. The Defendant argued that citizenship is a matter of personal choice rather than an automatic right, because it provides extra rights, such as the right to political participation, access to education, healthcare and employment.
Reiterating the arguments of the government, Paragraph 33 of the judgment stresses that UK nationality is not a necessity. It argues that becoming a British national is a personal choice and whoever makes that decision should pay the fee.
However, it should not be forgotten that O and A both identified as British. It would therefore be discriminatory to deprive them of citizenship due to an administrative fee. Significantly, Article 8 of The United Nations Convention on the Rights of the Child reads: “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference”.
Moreover, the High Court case referred to the United Nations Convention on the Reduction of Statelessness, which was adopted by the UK in 1961:
“A contracting state shall grant its nationality to a person born in its territory who would otherwise be stateless. Such as nationality shall be granted:
(a) at birth, by operation of law, (or)
(b) upon an application being lodged with the appropriate authority”.
It can be deduced that, under international human rights law, both O and A should qualify for British citizenship as they were born in the UK. However, this qualification is not automatic because the phrase “by operation of law” grants discretion to a contracting state to implement bureaucratic obstacles.
Claiming that citizenship is an absolute right is a very strong claim because current international law aims to protect state sovereignty. This is why contracting member states can design their own national citizenship laws.
However, citizenship rights are undoubtedly protected and shaped by international human rights law. A fee should not prevent a child obtaining citizenship. The outcome of this High Court case was bitter-sweet, as the judgment did not compel the Secretary of State to waive or abolish the fee. However, the recognition that citizenship is a human and not an economic right represents a small victory.
“Formerly man had only a body and soul. Now he needs a passport as well, for without it he will not be treated as a human being.” - Stefan Zweig
