No right to have rights: citizenship fees and judicial deference in PRCBC

Abstract

In The Origins of Totalitarianism, Hannah Arendt ([1951] 1968, p. 177) famously characterised the right to citizenship as ‘the right to have rights’. Decades later, that view was endorsed by the Court of Appeal, which declared that ‘the right to nationality is an important and weighty right . . . properly described as the right to have other rights, such as the right to reside in the country of residence and to consular protection and so on’ (R (Pham) v SSHD [2018] EWCA Civ 2064 (para. 49)). In a similar vein, Lady Hale had earlier identified the ‘many benefits to being a British citizen’ as including ‘the right to vote, the right to live and to work here without needing permission to do so, and everything that comes along with those rights’ (R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56 (para. 2)). More recently, however, the existence of a ‘right to have rights’ in the UK has been undermined by the Supreme Court decision in R (O (a minor) and The Project for the Registration of Children as British Citizens (PRCBC)) v Secretary of State for the Home Department [2022] UKSC 3 concerning the fees charged to children applying to acquire British citizenship by registration. The case was brought on behalf of O, a child holding Nigerian citizenship, who was born in the UK in 2007 and had lived there ever since. On this basis, she was eligible to register as a British citizen under Section 1(4) of the British Nationality Act 1981. However, while her family had been able to raise the funds to cover the administrative cost of the procedure (a little under £400), they could not afford the full fee, then set at £973 (now £1,012). The lower courts had found that, in setting the fees at this level, the Secretary of State had failed to discharge her duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children in the UK, but rejected the argument that the fees regime per se was ultra vires (R (PRCBC) v Secretary of State for the Home Department [2019] EWHC 3536 (Admin); R (PRCBC) v Secretary of State for the Home Department [2021] EWCA Civ 193). The latter was the sole ground of challenge to be appealed to the Supreme Court, which likewise found the fee regime to be intra vires, despite acknowledging that it is ‘designed to produce a substantial surplus’ (para. 3) and that ‘for many young people and their families the current level of fees is unaffordable’ (para. 5). In this brief comment, I wish to highlight the court’s restrictive conception of British citizenship rights and its deferent approach to executive discretion in this domain.