O (a minor), R (on the application of) v Secretary of State for the Home Department [2022] UKSC 3 (02 February 2022)
Citation: O (a minor), R (on the application of) v Secretary of State for the Home Department [2022] UKSC 3 (02 February 2022) .
Subjects invoked: 10. Jurisprudence, 77. Citizenship naturalisation
Rule of thumb:What happens if secondary legal sources contradict clear primary sources? If you are a child of immigrant descent offered British citizenship, do you have to pay the £1000 fee to activate this? If primary sources are clear, then secondary sources are irrelevant & do not have to be interpreted by the Court, as secondary sources only have to be considered when primary sources are ambiguous, meaning the fact the secondary sources contradict the primary sources is meaningless. Yes, children of immigrant descent still have to pay the £1,000 fee to become a full British citizen.
Background facts:
This case invoked the subjects of citizenship naturalisation and jurisprudence. In particular it invoked the issue of where British citizenship being granted to children who cannot afford the fees to process this. It also invoked the issue of what happens if clear statutory and regulatory terms are contradicted by secondary sources, Hansard debates and other pre-statutory material etc.
The material facts of this were that O was a child who received a letter stating that she was entitled to become a full British citizen, but she had to pay an administration fee of around £1,000 to the Home Office for this to be processed. O told the Home Office that she could not afford this and literally did not have the cash in her bank account to pay it, but still nonetheless wanted to take up the offer from the Home Office to become a British citizen. O asked the Home Office if she could be granted British citizenship without having to pay the £1,000. The Home Office refused this. O then took the matter to Court.
In Court O proved that she genuinely did not have the money in her bank to pay this fee to become a British citizen. O nobly and philosophically argued that if she had earned the right to be a British citizen, this should just be bestowed upon her like a qualification, rather than having to pay for this – O argued these mandatory fees cheapened British citizenship. O further argued that although the statute and regulations clearly stated that she had to pay this, there were other clear points from the Hansard debates in Parliament, as well as other pre-statutory material, to support her position that this was an honour to be bestowed on a person, rather than something that was to be bought to prevent British citizenship becoming commercialised/cheapened. O also relied on provisions from international treaties to support her position. O had a number of different secondary sources of law submitted to support her position. The Home Office argued that the statute and regulations relating to this clearly stated that O had to pay this before her status was changed from immigrant to British citizen. The Home Office argued that where primary sources of law like statute and regulation were as clearly written as this, with no room for ambiguity at all, the golden rule of jurisprudence was that all the other secondary sources of law were irrelevant, meaning that O’s could not be upheld by the Court. The Home Office argued that this golden rule about the relationship between primary sources of law and secondary sources of law was elementary.
Judgment:
The Court held that they had no choice by the golden rule of jurisprudence to accept the arguments of the Home Office. The Court held that the secondary law sources submitted by O would only be relevant where the primary source were not clear, but in the case at hand the primary sources were clear. The Court affirmed that O paying £1000 to become a British citizen was how the clear and unequivocal statutory provisions and regulations related this matter had to be interpreted. The Court further held that how citizenship naturalisation was to be processed was a matter for political determination, and not one for the Court. The Court affirmed that if people are made the offer to become a British citizen if they pay a certain fee, and they do not pay this, they simply cannot become a British citizen, and the statutes and regulations in this matter are so clear in this matter that they cannot be interpreted any other way, regardless of people potentially being able to think that they perhaps lack nobility. This fee must be paid before British citizenship processing goes through – the law in this matter is as simple as that.
Ratio-decidendi:
‘50. It follows in my view that in the 2014 Act Parliament has authorised the subordinate legislation by which the Secretary of State has fixed the impugned fee for the application to be registered as a British citizen under section 1(4) of the 1981 Act. 51. 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 for whom the question is the much narrower one of whether Parliament has authorised the Secretary of State to set the impugned fee at the level which it has been set’, Lord Hodge at 50-51
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.