British citizenship as a non-constitutional status

It would generally seem uncontroversial to suggest that citizenship constitutes a fundamental status in all democratic societies. The UK Supreme Court’s recent decision in PRCBC casts doubt on whether that assertion holds true. The case was brought by O, a child holding Nigerian citizenship, who was born in the UK in 2007 and has lived there ever since. On this basis, O would be entitled to register as a British citizen under Section 1(4) of the British Nationality Act 1981, but for her family’s inability to afford the registration fee, currently set at £1,012. O was joined by the Project for the Registration of Children as British Citizens (PRCBC), a charity campaigning against the fee.

While acknowledging that the current fee regime is specifically ‘designed to produce a substantial surplus’ (para 3), in order to subsidise other aspects of the immigration and nationality system (the actual administrative cost of the procedure being under £400), and that ‘for many young people and their families the current level of fees is unaffordable’ (para 5), the Supreme Court ultimately found the fee regime to be lawful. The judgment highlights the uneasy relationship between fundamental (or constitutional) rights and citizenship rights, as well as between common law rights and statutory rights, within the UK’s incompletely codified constitutional order. In this short post, I discuss the Supreme Court’s decision in light of earlier case law, before turning to some wider institutional factors which may help to explain the outcome (for further discussion, see the recent posts by Colin Yeo and Ruvi Ziegler).

No (Fundamental) Right to Citizenship

The PRCBC case raised two key questions for the Supreme Court: (1) whether the fees constituted an unlawful infringement of a common law constitutional right of access to (the rights conferred by) British citizenship (analogous to the right of access to justice relied upon in UNISON) and (2) whether the fees rendered nugatory a statutory right to become a British citizen and were thus ultra vires (following JCWI). Question (1) was given short shrift. The court argued that while the right to citizenship may be ‘important’ and the attendant rights ‘significant’ (para 5), the case was ‘not concerned with common law rights which have been recognised as fundamental or constitutional’ (para 33), thus treating British citizenship as a purely statutory status.

Because the court considered that no fundamental rights were engaged, the ‘special rule of construction […] embodied in the principle of legality’ was not in play (para 33). As a consequence, question (2) was addressed merely by reference to ordinary canons of statutory interpretation. The ‘statutory rights to British citizenship’ under the 1981 Act (para 47) were framed as being no more than ‘a statutory procedure for registration by which a person can acquire British citizenship […] subject to conditions specified by Parliament’ (para 43). Those conditions expressly include the payment of a fee, the level of which is to be set by the Secretary of State (pursuant to Section 68 of the Immigration Act 2014), with no statutory requirement to have regard to their affordability. The fees regime was thus found to be lawful.

An Unwelcome Departure

While there had been relatively few judicial pronouncements on the nature of British citizenship, the Supreme Court was by no means starting with a blank slate. In the court’s 2015 Pham decision, Lord Mance characterised ‘the status of citizenship’ as being ‘as fundamental at common law as it is in European and international law’ (para 97). In the same judgment, Lord Sumption expressed the view that on the ‘sliding scale […] between ordinary and fundamental rights […] a person’s right in domestic law to British nationality is manifestly at the weightiest end’ (paras 106-108). For Lady Arden, who was on the Supreme Court bench in PRCBC, ‘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’ (Pham, para 49). In a similar vein, writing the leading judgment in Johnson, Lady Hale had 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’ (para 2).

Several of these ‘benefits’ have separately been recognised as constitutional rights. For instance, in Bancoult (No. 1), Lord Laws declared that ‘a British subject enjoys a constitutional right to reside in or return to that part of the Queen’s dominions of which he is a citizen’ (para 39). Similarly, in Moohan, the very same Lord Hodge who wrote the leading judgment in PRCBC had ‘no difficulty in recognising the right to vote as a basic or constitutional right’ (para 33), affirming earlier dicta in Watkins (paras 25 and 61). Furthermore, though he considered that no such right (yet) existed at common law, he remained open to the possibility that if ‘a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful’ (para 35).

The rather shallow, purely statutory conception of citizenship in PRCBC thus constitutes something of a departure from the earlier case law, pointing to a potential bifurcation in judicial approaches to citizenship loss (e.g. in Pham) and acquisition, as Donnchadh Greene and Gabriel Tan discuss. While it would be an overstatement to suggest that it should have recognised a pre-existing common law constitutional right of access to citizenship, the PRCBC case offered the Supreme Court an opportunity to develop a more ambitious, coherent vision of British citizenship. The ever-increasing registration fees have the effect, among other things, of both disenfranchising and subjecting to continued immigration control a growing segment of the population who grew up in the UK and whose families cannot afford them to access the citizenship to which they would otherwise be entitled. The court’s judgment fails to contemplate this adverse effect on the democratic inclusion of individuals who have never known another home. Drawing on the earlier authorities cited above, a more creative bench might have ascribed citizenship, as the basis of political equality, a much greater constitutional significance: a fundamental status attaching to important constitutional rights. Instead, British citizenship emerges as merely a valuable commodity to be sold at whatever price the Secretary of State sees fit.

The Court in Retreat

If other avenues were available, we may wonder why the decision went the way it did. One obvious explanation is the Supreme Court’s fairly restrictive view of its role in the UK constitutional order, as underlined at para 51 of its judgment: ‘The appropriateness of imposing the fee on children who apply for British citizenship under section 1(4) of the 1981 Act is a question of policy which is for political determination. It is not a matter for judges’. This finding is somewhat reminiscent of Begum, in which the Supreme Court held that it should not interfere with the Home Secretary’s assessment that national security concerns trumped Shamima Begum’s right to a fair and effective appeal against the deprivation of her British citizenship, a ruling that Devyani Prahbhat has characterised as ‘a paean to judicial (self) restraint’.

Conor Gearty has recently observed that the current members of the Supreme Court bench are ‘unlikely to indulge litigants who have ambitions to redress socio-economic imbalance or to persuade the court to indulge novel forms of judicial law-making’, attributing this to the President’s (Lord Reed) ‘veneration of parliamentary sovereignty’ and ‘approach to judicial review so light-touch as to be almost no touch at all’. In this context, the decision in PRCBC is, as Nicholas Reed Langen points out, ‘wholly in-keeping with the court’s newfound desire to retreat from the constitutional battlefield’. This apparent retreat only reinforces broader concerns that the UK lacks sufficient constitutional safeguards to check executive overreach in the sphere of citizenship law, as discussed by Rachel Pougnet in relation to the recent Nationality and Borders Bill.

Judicial Whiteness Exposed?

Alongside judicial conservatism, we may wonder, with Faisel Sadiq, whether the all-white composition of the Supreme Court might also have had some bearing on the outcome. As Labour MP Bell Ribeiro-Addy pointed out in the House of Commons, the citizenship fees policy ‘disproportionately affects those of black, Asian, and minority ethnic heritage’, a fact that is further illustrated by Amnesty International’s campaign video on the issue. This is no surprise given the historically racist foundations of British citizenship law, as documented by Nadine El-Enany and illustrated by the ‘Windrush scandal’.

Another of Gearty’s recent observations about the Reed court is its apparent lack of empathy towards marginalised (and often racialised) members of British society: an ‘old-school lack of interest in the lived experiences of those whose plights have brought them to the judges’ attention’. Examples include the scant reference in Begum to her dire material circumstances and the loss of her three children. With related debates raging across the pond, it is difficult to resist the suspicion that a more demographically representative judiciary might improve outcomes for racialised groups. The counterfactual is non-observable, of course, but a panel of white judges looking on while racialised UK residents are priced out of access to British citizenship does little to assuage these concerns.

I am very grateful to Jo Shaw for her feedback on an earlier draft of this post. I also benefitted from the Twitter commentary on the case, especially by Michael Foran (@michaelpforan), Colm O’Cinneide (@colmocinneide), and Paolo Sandro (@PaoloSandro2).