Immigration and Nationality (Fees) (Amendment) Regulations 2022

Motion to Regret

Moved by

That this House, while welcoming the provisions in the Immigration and Nationality (Fees) (Amendment) Regulations 2022 (1) to exempt children looked after by a local authority from the fee charged to register their right to citizenship, and (2) to introduce a discretionary waiver for children on grounds of non-affordability, following the Court of Appeal judgment in PRCBC & O v SSHD, nevertheless regrets the decision to reintroduce the fee charged to other children at the existing level of £1,012 when the cost of processing an application is officially estimated to be £416; and questions (a) whether this is in the best interests of children, and (b) the justification that the level of fee is necessary to protect the funding of the borders and migration system. (SI 2022/581).

My Lords, this is only the second regret Motion that I have moved in my 11 years in your Lordships’ House. It is on the same topic as the first, moved four years ago: the barriers to children registering their entitlement to citizenship created by the exorbitant fee of £1,012. These are children either born here, to parents neither of whom was at the time British or settled, or who have grown up here from an early age and have the right to register as British citizens. A growing number of noble Lords from across the House, now known as “terriers united”, have raised concerns since then. Unfortunately, not all of them are able to be here this evening. With the changing of times, I think some were expecting the debate to be slightly later and cannot make it at this time.

These regulations stem from a legal case brought by the Project for the Registration of Children as British Citizens, of which I am a patron and to which I pay tribute for its unceasing work on behalf of these children. As a Written Statement on the regulations explained, the Court of Appeal found that the Home Secretary had failed in her duty to ensure that when setting the fee, regard had been had to the need to safeguard and promote the welfare of children in the UK, as required by Section 55 of the Borders, Citizenship and Immigration Act 2009. The Home Secretary finally accepted these findings and what is called a children’s best interests review was undertaken.

The regulations represent progress, but I am afraid that they do not go far enough to remove the barriers faced by children whose parents cannot afford the registration fee. I welcome unequivocally the exemption created for looked-after children, although it really should not have taken a court case to achieve this.

In a Written Answer to me, the Minister stated that local authorities had been advised of the new exemption and that:

“The Home Office is continuing to reach out to a wide range of organisations”

with an interest in the issue “to notify them”. Can she give us more information as to which organisations have been informed and by what means, if not now then in a subsequent letter, given the importance of dissemination of the new policy to as wide a range of interested organisations as possible? I welcome too the recognition, which has been slow in coming, of the importance of British citizenship to these children in both practical terms and, as the Written Statement acknowledges, in terms of the more intangible impacts related to a sense of identity and belonging.

On the face of it, the introduction of a fee waiver on grounds of unaffordability appears another important step forward with regard to children’s best interests. According to the Written Statement, the policy aim is to ensure that the fee does not serve as a barrier to the acquisition of British citizenship for eligible children who cannot afford to pay it, an aim to which I am sure we would all subscribe. The problem is that the more I have looked at the guidance and claiming process, the less confident I am that the Government will achieve this policy aim, or even the 63% fee waiver grant rate assumed in the impact assessment, which is acknowledged as being uncertain.

For a start, I understand that those who apply by post—and we cannot assume that people will apply online—will have to fill in a 56-page form on top of a 30-odd page citizenship registration application form. Much of the fee waiver form is a complicated duplication of what is required for citizenship registration. My fear is that many who cannot afford the fee will either be put off applying altogether, in the absence of legal aid to help with it, or be turned down for reasons that I will turn to in a moment. It risks placing unmanageable burdens on the voluntary sector, to which people will turn for assistance if they can—but some will not be able to—and leading to non-lawyers unwittingly attempting to provide information about complex questions of nationality law, rather than simply enabling someone to demonstrate their limited means. Could officials look again at the form to see whether it is possible, first, to omit the citizenship registration questions from the paper form, confining them to the citizenship registration form, and, secondly, to keep the paper form as short as the online form?

I do not know whether the Minister has read the guidance to caseworkers considering a waiver application. Perhaps she could say whether she has, but I and the PRCBC—the experts on these matters—found it very confusing and difficult to follow. There seems to be a fundamental ambiguity at its heart. On the one hand, it can be read as emphasising caseworkers’ duty to grant a fee waiver where the fee cannot be afforded or there is insufficient income to meet a child’s needs. In such circumstances:

“A fee waiver must be granted.”

That instruction is welcome but, on the other hand, the guidance for assessing whether an applicant can afford the fee seems unreasonably restrictive in terms both of the information required and of the means/expenditure test applied, which is based on whether the applicant has sufficient surplus income to meet the fee after accommodation and other essential living needs have been met.

Applicants are to be required to provide a detailed breakdown and evidence of their income and average monthly outgoings over the previous six months, which is pretty daunting. Caseworkers are advised to judge whether the expenditure is excessive in relation to essential living needs with reference to the items and associated costs used in determining asylum support.

However, the asylum support rate has been challenged consistently by the refugee sector as, in the words of Refugee Action, alarmingly low. It is well below universal credit rates and the poverty line. It is quite possible that someone could have been spending above these levels without having made what the guidance calls

“non-essential and excessive purchases”.

They could then be turned down, even though this means that the child’s or another child in the family’s legitimate needs cannot be met if they have to pay the fee. Yet elsewhere the guidance stresses the importance of the child’s needs being met.