2022 Statelessness & Citizenship Review 4(2) or separated from his or her parents. Further, he or she could apply for registration when money was available, destitution not being assumed to be a permanent state. As a result, there was either no interference with ECHR art 8 rights or any interference was marginal and clearly justified;8 (iv) Impecuniosity was not a prohibited ground of discrimination within the meaning of ECHR art 14, which bars discrimination on certain grounds in respect of ECHR rights. Consequently, there was no breach of the ECHR art 14 prohibition on unjustified discrimination in relation to ECHR art 8 rights.9 In subsequent cases a charitable organisation focusing on the registration of children as British citizens10 and two children, who had sought to apply for registration under BNA 1981 ss 1(4) and 3(2) respectively but could not pay the full fee (by this time the same as at present — £1,012), sought judicial review of decisions by the SSHD treating those applications as invalid by reason of failure to pay that fee. Evidence accepted by Jay J in the High Court demonstrated that (i) for a substantial number of children a fee of £1,012 ‘is simply unaffordable’11 and (ii) children ‘born in the UK and identifying as British’ but unable to register because of the fee ‘feel alienated, excluded, isolated, “second-best”, insecure and not fully assimilated into the culture and social fabric of the UK’.12 The Court found, though with evident hesitation, that it was bound by R (Williams) as regards the nature of the right to citizenship by registration. This was created by statute and not fundamental or constitutional; thus, the fee was not ultra vires the statutory scheme even though some potential applicants lacked the ability to pay it.13 However, the claimants also raised a point not canvassed in R (Williams) — namely, that the SSHD had failed, in devising and maintaining her fee policy, to satisfy the statutory duty imposed on her by the Borders Citizenship and Immigration Act 2009 (‘BCIA 2009’) s 55. This duty provides that she must ‘ensure’ in performing ‘any of her functions in relation to immigration, asylum, or nationality’ that she has ‘regard to the need to safeguard and promote the welfare of children who are in the United Kingdom’; ‘in all actions reflecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative bodies or legislative bodies, the best interests of the child shall be a primary consideration’.14 There was no evidence in the material advanced for the SSHD that she: has identified where the best interests of children seeking registration lie, has begun to characterise those interests properly, has identified that the level of fee creates practical difficulties for many (with some attempt being made to evaluate the numbers); and has then said that wider public interest considerations, including the 8 9 10 11 12 13 14 ibid [53]–[64]. ibid [71]–[76]. The Project for the Registration of Children as British Citizens (‘PRCBC’). PRCBC HC (n 5) [2], [19]–[22]. ibid [21]. ibid [76]–[78]. R (MM (Lebanon)) v SSHD [2017] UKSC 10; [2017] 1 WLR 6000, per Baroness Hale at [45]–[46] quoting Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3(1). The decision in R (MM (Lebanon)) had been handed down after the Court of Appeal had heard argument in R (Williams), though six days before the Court of Appeal’s decision was handed down. 304