R (Project for the Registration of Children as British Citizens) v SSHD welfare of a relevant child should be a primary consideration in deciding any fee waiver application; if applicants and parents can ‘credibly’ show that they could not afford the fee or that being made to pay the fee would prevent a child’s needs from being met, a fee waiver must be granted.26 However, as highlighted by the charity Project for the Registration of Children as British Citizens, ‘expenditure may not fit what the [SSHD] regards as essential living needs.’27 For example, extracurricular activities that benefit a child’s wellbeing and development could be considered non-essential in the absence of evidence that being prevented from attending them would ‘cause particular harm to the wellbeing of the child.’28 However, it is unclear what would constitute ‘harm’ and how that might be evidenced. Thus, although the changes from the High Court decision are welcome, qualifying for a fee waiver will not necessarily be without difficulty for children from low and modest income families. Second, the decisions in the R (Williams) and R (PRCBC) cases do identify some restraints on fee levels. In R (Williams) in the Court of Appeal, Counsel for the SSHD accepted ‘that the [SSHD] could not simply stipulate an application fee of, say, £1 million.’29 The Court, per Davis LJ, noted that it might provide scope for an extreme fee level, straying beyond the vires of the enabling statute.30 Davis LJ observed, ‘I do see the point here’. He stated that the concession would not gain traction in that context given that it was ‘to be taken as a given that the Secretary of State’s powers are to be exercised in good faith and not arbitrarily’. Asylum and Immigration (Treatment of Claimants etc) Act 2004 s 42(1) allowed the amount of fees to exceed the administrative costs, subject to a requirement to ‘reflect the benefits to the individual estimated as likely to accrue’ and that ‘the amount of fees required can only be exacted after prior scrutiny of both Houses of Parliament’,31 in addition to which an individual could register later when means permitted having had leave to remain in the meantime.32 In the Supreme Court, Lord Hodge drew attention to Immigration Act 2014 s 68(5) by which ‘where a fees order provides for a fee (or part of a fee) to be a fixed amount, it — (a) must specify a maximum amount for the fee (or part), and (b) may specify a minimum amount.’33 Section 68(9) of the same Act stipulates that in setting the fee amount, the SSHD may have regard only to certain permitted matters: (a) the cost of exercising the function, (b) the benefits that she thinks are likely to accrue to any person in connection with the exercise of that function, (c) the costs of exercising any other function in connection with immigration or nationality, (d) the promotion of economic growth, (e) the fees charged by governments of other countries in respect of comparable functions and (f) any international agreement. More broadly, the decision provides a focus on the degree to which, in a common law system without an entrenched constitutional protection, the rubric by which citizenship is obtained (or retained) remains dependent on ordinary statute. 26 27 28 29 30 31 32 33 ibid 6 (emphasis added). Project for the Registration of Children as British Citizens: Practitioners’ Note on Changes to Fee Regulations on Registration of Children as British Citizens (Exemptions and Waivers) (Practice Note, 30 May 2022) 4 [18] (emphasis added). Home Office Guidance (n 25) 14 (emphasis added). Williams CA (n 5) [49]. ibid. ibid [50]. ibid [51]. PRCBC SC (n 5) [12]–[18]. The maximum amount specified as regards registration of a child as a British citizen is £1,500: Immigration and Nationality (Fees) Order 2016 (UK) art 10. 307