Title:
R. on the application of Ric Williams by his father and litigation friend Richard Williams v. the Secretary of State for the Home Department
Court:
High Court of Justice, Queen’s Bench Division, Administrative Court in Birmingham
Date:
11 May 2015
CRC Provisions:
General reference (no specific article cited)
Other International Provisions:
European Convention on Human Rights, article 8: Right to respect for private and family life, home and correspondence
European Convention on Human Rights, article 14: Rights provided without discrimination on any ground
Domestic Provisions:
Immigration, Asylum and Nationality Act 2006, Section 51: Fees (allowing the Secretary of State to require fees in connection with immigration and nationality applications and related services, and to provide discretionary waivers and exceptions to such fees)
Immigration, Asylum and Nationality Act 2006, Section 52: Fees: supplemental (provides that the orders and regulations of Section 51 may apply differently based on the case or circumstances, require consent of the Treasury and parliamentary approval)
Immigration and Nationality (Fees) Regulations 2013 (SI 2013 No 749) (explaining that the fees are imposed to cause immigrants to fund the UK Border Agency and its operations)
Case Summary:
Background:
A destitute child brought this action for judicial review of the Secretary of State’s decision to reject the child’s application for citizenship because of failure to pay the fee, arguing that it interferes with the right to respect for private and family life in article 8 of the European Convention on Human Rights (ECHR) alone or in conjunction with the right to non-discrimination in article 14.
Issue and resolution:
Legality of fee requirements in relation to a citizenship application by a destitute child. The Court found that the Secretary of State’s decision to deny a child’s application was neither outside her powers for failing to exempt destitute children receiving government assistance nor in breach of her duty under article 8 of the ECHR to properly respect his family and private life and/or her duty under article 14 read with article 8 by discriminating against the child on ground of his financial status.
Court reasoning:
The Court agreed with the Secretary of State’s argument that the way in which the various competing interests are balanced is a political and legislative decision. Further, the Court emphasized that the fee requirement does not permanently bar an otherwise eligible child from British citizenship, but merely postpones the ability to register.
On the ECHR claims, the Court emphasised that there were no practical differences in the child’s private and family life situation whether or not citizenship was granted, and so there was no interference with article 8 rights but merely an unsatisfactory status quo continuing. Further, were there any modest interference, the Court found it would be justified by Secretary of State’s legitimate aims to limit the fees of other applicants and to have a robust system with minimal exceptions. In relation to article 14, the Court noted that there is no precedent from the European Court on Human Rights which recognises discrimination on the ground of poverty and decided that no discrimination had occurred.
Excerpts citing CRC and other relevant human rights instruments:
Argument of the Secretary of State’s counsel:
“vi) The fact that the interests of a child are in issue is a countervailing factor which will reduce to some degree the width of the margin of appreciation, article 8 having to be interpreted and applied in the light of the United Nations Convention on the Rights of the Child (“UNCRC”) (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (“ZH Tanzania”), and HH v Deputy Prosecutor of the Italian Republic, Genoa; F-K v Polish Judicial Authority [2012] UKSC 25). However, under the UNCRC, the rights of the child are a primary consideration – i.e. (he said) “an important matter” – not the primary consideration; and the interests of a child do not provide a trump card such that an application by a child must always be successful (at [74(8)]).”
Argument of the child’s counsel:
“83.Mr Knafler submitted that the failure to grant the Claimant fee exemption interfered with his family life, because it imposed upon him and his family the uncertainties of living in the United Kingdom without the right of residence or leave to remain and without the other practical benefits of citizenship. His rights, of course, have to be considered through the prism of the UNCRC, i.e. the interests of the Claimant as a child have to be a primary consideration in the decision-making process of the Secretary of State through which she came to adopt the scheme without the exemption.”
Reasoning of the court:
“91.In the Claimant’s case, there was an issue as to whether article 8 was even engaged. Although a grant of citizenship confers certain benefits over and above the right of abode (e.g. the right to vote, and the right to education), Mr Knafler was unable to identify any practical benefit that would accrue to a child from having citizenship, over and above the benefits that will derive from having leave to remain, the uncertainties and inconvenience that those who do not have British passports may have when (e.g.) travelling abroad and returning to the United Kingdom, and the fact of enjoying citizenship. Notably, there is no real adverse impact on the Claimant’s family life: even before he and his family had been granted leave to remain, the Claimant was bound to have enjoyed a shared family life with his parents, whether or not he obtained British citizenship. The inability of the Claimant to obtain British nationality of course led to continued uncertainties and general problems associated with living in the United Kingdom without a right of residence; but, as in AHK, that merely meant an unsatisfactory status quo continuing, without any interference with article 8 rights. That is so even when the matter is looked at through the prism of the UNCRC. Otherwise, the only prejudice that the Claimant has suffered was the inability to enjoy the status of British citizenship, at least on a temporary basis.”
CRIN Comments:
CRIN believes this decision is inconsistent with the CRC. Article 7 of the Convention guarantees the right of children to acquire a nationality. States have an obligation to ensure that this right is implemented, as well as an obligation under Article 2 to take all appropriate measures to ensure children’s protection from all kinds of discrimination, including that on the ground of financial status. Furthermore, CRIN believes that the consequences of the refusal to process a child’s citizenship application for failing to pay a fee, i.e. an uncertain legal status as a resident in the country, are clearly against the best interests of the child and the requirements of Article 3 CRC.
Citation:
[2015] EWHC 1268 (Admin)
Link to Full Judgment:
http://www.bailii.org/ew/cases/EWHC/Admin/2015/1268.html
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.