In December 2019, the High Court held that the high fee was unlawful. While this is potentially very good news for families, this is not the end of the story. This is for three main reasons.
First, the Court did not simply find that it was unlawful for the application fee to be set as high as £1,012. Instead, it concluded that the current fee was unlawful because the Home Office had not considered the best interests of the children affected when setting the fee at that level. This contradicted a statutory provision which requires the Home Office to take the best interests of children in the UK into account when making immigration and nationality decisions that affect them. This means that the Home Office could decide to maintain the current fee if they are able to show that best interests considerations had been taken into account. For example, the Home Office could decide to introduce a fee waiver for certain children.
Secondly, both parties have appealed against the decision. The Home Office has been granted permission to appeal to the Court of Appeal on the issue of the best interests of the child. The organisation that brought the claim, the Project for the Registration of Children as British Citizens (PRCBC), has also been given permission to appeal. PRCBC has permission to appeal directly to the Supreme Court on the point that the fee itself is just too high to be lawful. (The PRCBC is leapfrogging the Court of Appeal as the December 2019 decision relied on a previous Court of Appeal case on that point.)
Finally, despite the decision, at present the £1,012 fee stands. This leaves families in a tricky position where they have a child who is eligible to register now. They could decide to wait and see with a view to making an application after the proceedings in the Court of Appeal and Supreme Court have concluded. However, that may not be an option for some, especially where a child is nearing the age of 18. Alternatively, if they can afford it, they can apply now and accept that they must pay the fee. Some are hopeful that the Home Office will introduce a mechanism for fee refunds for families who previously paid the high fees, but there can be no guarantee that this will be introduced.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of January 7, 2020.