– in the House of Lords at 6:27 pm on 6th July 2022.
Baroness Lister of Burtersett:
Moved by Baroness Lister of Burtersett
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.
Can the Minister explain the justification for using the asylum support system as a benchmark for assessing applicants’ expenditure when what is at issue is the citizenship rights of children who have been born or lived most of their lives in this country? Would not the Joseph Rowntree Foundation’s minimum income standards be more appropriate? This is a measure of what is needed for a basic standard of living in today’s society based on detailed discussions with members of the general public undertaken by the Centre for Research in Social Policy at Loughborough University—I declare an interest as an emeritus professor there.
The waiver can also be refused on a number of other grounds, including where reasonable steps have not been taken to ensure there are
“sufficient funds to pay a foreseeable fee”.
Yet where applicants have only just discovered the need to pay the fee, it would not have been foreseeable at all.
So much of this involves subjective judgments which busy caseworkers are going to be required to make on a case-by-case basis using complex and ambiguous guidance. I urge the Minister to take this back to the Home Office and ask that the guidance be reviewed, preferably in consultation with PRCBC and other interested organisations. Could she also say what steps will be taken to monitor the implementation of the waiver and to report back to Parliament? However, I fear that any monitoring will not pick up those who are put off applying in the first place.
Given all this, the level of the fee remains of the utmost importance. It is therefore deeply disappointing that it is being reintroduced at exactly the same rate as before: nearly £600 more than the estimated cost of processing the application. While of course I have to accept the Supreme Court’s judgment that the level is not ultra vires, it made clear that the question of its level is a matter for Parliament, subject to the need for Ministers to ensure proper regard to children’s best interests.
Can the Minister explain why a reduction in the fee was not considered as one of the policy options in the impact assessment so that Parliament could consider it as an option? It is not terribly helpful for the assessment to consider only the policy proposed and the option to “Do nothing”—an approach criticised more generally by Wendy Williams in her review of the Home Office—when there has been so much parliamentary pressure to reduce the fee for many years. Indeed, both the current and previous Home Secretaries —who knows who is in what role at present?—have commented on the level in the past.
The justification for such a high fee continues to be, in the words of the Written Ministerial Statement,
“the role fees play in funding the borders and migration system” with a policy aimed at
“those who benefit from the system” contributing
“to its effective operation and maintenance, while reducing reliance on taxpayer funding”.
But the registration of the citizenship right of children born or who have long lived in the country has nothing to do with the borders and migration system. They are not beneficiaries of it, so why should their fees have to contribute to its operation? Their parents will be taxpayers in some form or another.
Moreover, this confusion of citizenship with immigration matters occurs in the waiver guidance. Caseworkers are told to weigh up the impact of paying the fee on the child
“against the public interest of funding the broader functions of the immigration system”.
This really should be deleted as irrelevant and potentially damaging to the best interests of the child. Will the Minister consider doing this?
Finally, on the question of best interests, I was again disappointed by the Minister’s Written Answer that there are no plans to publish the children’s best interests review carried out in response to the Court of Appeal judgment, on the grounds that the summary in the Written Statement of
To conclude, I ask the Minister to think again about publication of the best interests review and to take back to the Home Office the need to review, as a matter of urgency, how the affordability waiver is implemented and the associated guidance. These regulations may represent progress, thanks to the Court of Appeal judgment, but I fear that we are still a long way from achieving the stated policy aim set out in the Written Statement; namely
“to ensure the fee does not serve as a significant practical barrier to the acquisition of British citizenship for children” who are entitled to register their right to that citizenship. Until we have achieved that aim, the terriers will continue to snap at the Home Office’s heels. I beg to move.
My Lords, I thank the noble Baroness for giving us the opportunity to hold this short debate. The matters she raises are serious and require urgent address.
Greater Manchester—the Minister knows and loves it as much as I do—is a very diverse city region. Many of those who contribute to its flourishing and growth are families whose origins lie elsewhere. The children of those families enrich the life of our schools, including the 190-plus Church schools that educate over 60,000 children every day, often in the poorest communities. While these children rejoice in the distinctive heritage of their ancestral culture, and offer its riches to us, they are being brought up to be as British as I am. They know no other home. They are not immigrants—as the noble Baroness has said, we must not confuse the asserting of citizenship with immigration—they are British. They simply need to clarify that legally.
Ideally, I would not put a price on citizenship; it is far too precious. However, if a charge has to be made, it seems invidious to pitch it at a level where over half of the revenue is pure profit. Indeed, the profit levels might set the mouths watering of some of those who notoriously have milked our public coffers through the charges they have exacted for substandard PPE equipment—but perhaps that is for another day.
For cultural and religious reasons, many of these children are being brought up in families where they have more sisters and brothers than the average. We need those larger families to provide the future workers who will sustain our economy in years to come, as our population—noble Lords are no exception—increasingly ages. Many of their parents are key workers in those vital sectors of the economy, such as health and transport, which kept this nation going during Covid lockdowns, and they are often employed in the least well-paid jobs. Charging over £1,000 per child, especially when there are four, five or more children in the family, acts as a major disincentive to citizenship applications, one that prevents those children, as they grow up, being able to access the full rights to which they should be entitled as our fellow citizens. I echo the noble Baroness’s remarks about the opacity of the waiver regime. There is no point having a regime if it is not clear, when families embark on that process, whether they will be eligible.
I urge the Government to reconsider these charges as a matter of urgency. Perhaps it is not for me to intrude into private grief but, on a day when the moral authority of the Government is up for question, this would be a small but significant assertion that Her Majesty’s Government recognise a compelling moral case when they see one.
My Lords, in welcoming these provisions, I apologise for missing the opening remarks of the noble Baroness, Lady Lister. However, we are still left with some anomalies, one of which follows the decision to reintroduce the fee charged to other children at £1,012 when the application—
I am sorry to interrupt my noble friend but if he missed the opening remarks of the noble Baroness—I did not see him come in—then he really should not speak at all.
My Lords, I thank the noble Earl for at least attempting to speak; it is always good to have some moral support from the Conservative Back Benches. I thank the noble Baroness, Lady Lister, for introducing this; as an honorary member of the terriers, I am very happy to be here. Most of my fellow terror of terriers, that being the collective noun for terriers, are otherwise engaged, and there seems to be quite enough terror around without inflicting any more of it on the governing party.
My own experience with a regret Motion—I think it was the only one I have done—had to do with the adoption fund. I tabled it, there was a debate and I said at the end that I did not intend to take it to a vote and would abstain if there was a vote, because I thought it was a non-party political issue. The two opposition parties decided, in their wisdom, to take it to a vote, and we won, slightly to my embarrassment. I will try not to repeat that: it is the law of unintended consequences.
The noble Baroness, Lady Lister, covered most of the key points. We genuinely welcome the waiver for children in care, but I ask the Minister to reflect on why we keep returning to this subject again and again. It is partly from a sense of gentle but persistent moral outrage. The barriers that are being put in the way of children who have an absolute and total right to UK nationality seem completely disproportionate and, frankly, morally wrong. To have a fee that is so far above the costs makes one ask oneself: where is the moral compass behind this approach to the way children are treated? When one looks at the highly detailed and, in my view, invasive process that families have to go through in order to demonstrate that their children are, first, eligible, and secondly, that they would have enormous difficulty in paying the fee, I think it is genuinely intrusive and really quite objectionable.
The noble Baroness, Lady Lister, mentioned the details that caseworkers have to go into:
“Caseworkers should normally expect to see information and evidence relating to the applicant’s and parent’s income—” remember, the applicant is a child—
“their accommodation, the type and adequacy of accommodation, the amount of the rent/mortgage, or of their contribution towards this, and outgoings in terms of spending on things like food and utility bills. This information should be supported by independent evidence, such as their pay slips, bank statements, tenancy agreements and utility bills.”
If any of us had to go through such a process, I wonder how easily we would have access to all that information. I suspect that it would be with a high degree of difficulty.
Having looked at the guidance for caseworkers, I very much hope—and I would like to be reassured, given the complexity of the caseworker guidance—that there is an initiative for specialist training to be given to the caseworkers who will be carrying this out, to ensure that they are completely confident in their ability, and that the Home Office is completely confident in their ability, to conduct these assessments to the professional level required. If not, one will be inviting a process whereby there will be a greater number of appeals against some of the decisions than there needs to be, with all the costs involved and the discomfort for the people involved. That is something that I hope will be the case. Indeed, if the child and the family are refused and the application is denied, they will then have the pleasure of paying an additional £372 for an internal review, which seems to be adding insult to injury.
One thing that the Home Office has undoubtedly been accruing over the last few years is really quite significant legal costs, as it is, again and again, going either to the High Court or to the Supreme Court to answer challenges that are being made about some of these policies and the decisions that are being taken. I would be very grateful, if the Home Office is able to do the sums, to know how much, year on year over the last five years, the Home Office has had to expend on legal fees in specific pursuit of these types of cases. I have a horrible feeling that a not insignificant proportion of the so-called profit—the difference between the cost of the application and the actual fee being charged—is expended on legal fees. That does not seem a very good way of justifying the high level of fees.
In looking at the impact assessment—and I would recommend reading it if any of your Lordships are having trouble sleeping—there is something rather peculiar in it. It mentions, as the Government have often mentioned, that one of the rationales for the very high level of fee, apart from it providing extra income for the system, is that it reflects,
“the benefits that accrue to an individual as a result of a successful application”.
That is in paragraph 16 of the impact assessment. But if you then fast forward to paragraph 79, there is a list of 14 bullet points which are the purported benefits that accrue to an individual or a child if they are successful in getting UK citizenship. That is fine, but you then go to paragraph 80, and what it says about the 14 benefits is,
“These benefits are largely intangible and not able to be monetised, and the Home Office do not have data on the proportions of applicants who would receive different benefits”.
On the one hand, they are saying that one of the justifications for the high level of fee are the benefits that accrue to an individual who is successful in applying. On the other hand, they are saying those benefits are intangible and unable to be monetised. So, please discuss and provide answers on the back of an envelope because I do not follow that. It does worry me, and I would like to have an explanation, if not this evening, then certainly in writing.
I think that since so much of what we are discussing and will continue to discuss—I hope not for the next few years—is to do with the judgment that is being made by the Home Office on what the children’s best interests are, and that comes up repeatedly when the Home Office’s rationale is tested in the High Court or the Supreme Court. It would seem eminently sensible to publish how the Home Office assesses the children’s best interests, partly in the interests of the Home Office so nobody worries or wonders anymore if it has something to hide, but also to help those organisations which are there to try to help those individuals, who have a right to citizenship, to go through the application process with much greater clarity about how the Home Office actually measures and assesses one’s best interests. That seems self-evident, so as the noble Baroness, Lady Lister, said, we would appreciate a proper, reasoned explanation for why the Government have currently no plans to publish this. Perhaps they would be prepared to meet us to discuss this, or at least to say that they have this under review and, at some point in the future, may take a decision to publish.
My Lords, I thank the noble Baroness, Lady Lister, for moving this Motion of Regret, and for her introduction. I thank the noble Lord, Lord Russell, for his contribution also. I support all the points they have made, so I will not elaborate on them further. But I want to underline and reinforce the points they made because we are talking about children who have a statutory right to citizenship, and to put so many obstacles in their way seems to me to be totally disproportionate and, as we said, cannot be morally justified.
Picking up on the point made by the noble Lord, Lord Russell, I think it would be very helpful if the Home Office published the assessment of what are the children’s best interests, because it would be helpful to know what they are. It would be helpful also if it can provide confirmation, and a more detailed explanation, of the steps being taken to ensure the citizenship rights of all looked-after children are being secured by their local authority.
Of course, we need to review the application form and guidance to decision-makers on the fee waiver to ensure that the waiver is accessible, because we have heard how complicated it really is. I think the Government need to end the charging of citizenship registration fees at above the administrative cost and the subsidising of the immigration system from statutory citizenship rights. As I said, I do not understand why this should be subsidised through this particular source. They also need to remove the review fee for looked-after children and children for whom a waiver of the registration fee has been granted. These are a few things which it would be helpful if we could actually argue.
I have not been part of the terrier group so far, but when I saw the regret Motion and had a conversation with the noble Baroness, Lady Lister, I was moved to stay on and add my support to this regret Motion. I very much hope that we will get some confirmation and some concessions from the Home Office.
My Lords, I am very grateful to the noble Baroness, Lady Lister of Burtersett, for bringing this regret Motion and for so comprehensively setting out the grounds for it.
Time after time in this House and in Grand Committee, other noble Lords and I have questioned the policy that border and immigration systems have to be self-funding. The argument that those using the system should pay for it could just as easily be made for other systems such as the education system or the National Health Service. To say that only those who apply for a passport or visa or for UK nationality use or benefit from border and immigration services is clearly false. Everyone in the UK benefits from border control and control over who receives temporary or permanent leave to remain in the UK, and from the granting of UK citizenship. For example, in terms of counterterrorism, it has been shown that those people who acquire British citizenship are far more likely to show loyalty to the country than those who do not.
The premise is also false in that citizens from EU, EEA and 10 other countries benefit from visa-free entry to the UK and use Border Force services to enter the UK—none of whom at this time pays a penny towards the cost of border control or immigration services. Not only are those who apply for a UK passport, a visa to enter the UK or UK citizenship subsidising border and immigration services that benefit all UK citizens; they are also subsidising hundreds of thousands of foreign visitors who enter the UK every year without the need for a visa.
When asked why the Home Office is unique in being required to make border and immigration services self-funding, the only answer is, “Because this is government policy.” Can the Minister tell the House why it is government policy, and why, for example, the NHS is not required to be self-funding? The safety and security of the people is supposed to be the Government’s primary responsibility, yet a major part of ensuring that—ensuring that foreign criminals and others not conducive to the public good do not enter the UK, for example—has to be self-funding. Why?
On the other aspect of the regret Motion, whether it is in the best interests of children to charge them for securing their right to UK citizenship, let alone £596 over the cost of processing an application, the answer is clearly no. Let us imagine the case of a young person who has come to the UK as a young child, whose parent or parents are legally in the UK, who perhaps finds the transition to life in the UK difficult and does not receive the love and support any child should reasonably expect from his parent or parents, and who goes off the rails, makes mistakes as a teenager and ends up with a custodial sentence of 12 months or more. Is this young person likely to know about and understand the consequences of not claiming the UK nationality he is entitled to before he is deported by the Home Office as a foreign national criminal? Is this person likely to live with a family who can afford over £1,000 to claim the right to UK nationality they are entitled to?
It is not just that. To qualify for the discretionary waiver on the grounds of affordability, as the noble Baroness has said, a long and complex process of means-testing must be gone through, in which even the guidance to Home Office caseworkers is complicated. Every penny of income and expenditure must be accounted for; money spent on “luxuries” or non-essential items such as a holiday would disqualify the family from the fee waiver. What do the Government mean by “luxuries”? Anything more than 43p per person per week spent on laundry and toilet paper, anything more than 69p per person spent on toiletries, and anything more than £3.01 spent on clothing and footwear is considered non-essential. How many of us could say how much we spent on toilet paper a week over the last six months?
It gets worse. I shall give an actual example from the guidance. If the child has sports lessons after school and it can be shown that not having those lessons would have a detrimental impact on them, they are allowed. If it cannot be shown that depriving the child of those lessons would have a detrimental impact, they are non-essential. How on earth is any parent supposed to be able to prove or disprove that?
What is the average cost of processing an application for a fee waiver on the grounds of affordability, bearing in mind, as the noble Baroness said, that there is a total of 86 pages if done by post? The guidance says that rarely will a caseworker be able to grant an application in the face of a lack of information, so the caseworker must go back to the family and ask for further information if it is not initially included. If the caseworker is not sure whether they can use their discretion, they must refer the case to a senior caseworker.
Even in the light of the Court of Appeal judgment against the Government, they are clinging desperately to the policy that border and immigration services must be self-funding and that even children have to pay for this—even for an application for UK nationality, which has nothing to do with borders and immigration. Children are having to subsidise foreign tourists coming into the UK—children who may end up being deported because they did not claim the UK nationality they were entitled to but could not afford, or whose parents were unable or unwilling to have their finances trawled through or unable to put forward a convincing enough case that their child would end up being criminally exploited in a gang if they did not pay for them to go to football practice after school.
This Government and Home Secretary care more about maintaining a dogmatic and unjustified policy that immigration and border services must be self-funding than the best interests of children. While welcoming the waiver for looked-after children, we strongly support this regret Motion.
My Lords, I too thank my noble friend for moving this regret Motion. She has done so comprehensively. Many of the questions she asked are more detailed than the ones I have written down here. I look forward to the Minister’s answers. I also pay tribute to the “terriers united” club and its aspirant members—I nominate the noble Earl, Lord Dundee, as he tried to speak in this debate but unfortunately was unable to.
An interesting aspect of this debate is the other debates we are having in this House about our relationship with international treaties. The changes we are talking about have been brought about by our court system, which considered the policy in detail and found that it did not meet our obligations in the best interests of the child—namely, Article 3 of the UN Convention on the Rights of the Child, which has been in force for about 20 years.
In this instance, the Secretary of State has been guided into action by the courts to protect the rights of British children—and they are British children. They are entitled to British citizenship. We are talking about a registration, not an application. Of course we welcome the exemption for children who are being looked after by local authorities. This is a key change which has been campaigned for over many years. This and the introduction of the fee waiver in certain discretionary cases are significant changes and improvements.
I will be interested in what the Minister says about how many children who are entitled to British citizenship register that citizenship each year. What is the scale of this issue? Also, we have heard questions about the decision to continue charging the majority of children extremely high fees, but how will the waiver operate in practice? What is the expected timeframe for an application for the waiver to be considered? The published guidance sheds no light on this. It simply says:
“No specific service standards apply to the assessment of whether the applicant qualifies for a fee waiver. However, caseworkers must make reasonable efforts to decide such requests promptly”.
This leads me to the question of what training caseworkers will have. We have heard about the complexity of the guidance. The noble Lord, Lord Russell, asked whether there might be any specialist training. My noble friend Lady Lister asked whether the complexity of this process might be reviewed.
I want to dwell for a second on the point made by the noble Lord, Lord Paddick, about young people who find themselves in the court system—whether, if they get a sentence of 12 months or more, they could be deported, and whether that could be exacerbated if they have not registered for British citizenship. I occasionally see this situation in youth courts. I do not know how the cases are resolved but it is not that unusual to have young people in court who have citizenship issues and modern slavery issues as well as the offences which the court is dealing with. They have extremely complex lives, and they are often accompanied by a number of professional advisers to try to resolve their issues. I will be interested in what the Minister says about the possibility of deporting young people who have an entitlement to British citizenship but have not registered, if they receive a court sentence of 12 months or more.
I conclude on the central question, which has been asked by all noble Lords who have spoken in this debate: whether the Home Office will commit to publishing its assessment of children’s best interests and how this policy fulfils our obligations under international law.
My Lords, I thank all noble Lords who have spoken in this debate, particularly the noble Baroness, Lady Lister of Burtersett, whose club of the terriers is growing. There is now a waiting list for applications. I do not know what the criteria is for joining but I wish her well. I can only admire her persistence. She speaks powerfully on this matter, and the Government recognise the continued strength of feeling on it.
As noble Lords have heard, the Government laid legislation on
I am glad that the noble Baroness welcomed the changes introduced by the regulations, which, as my honourable friend the Parliamentary Under-Secretary of State for Safe and Legal Migration outlined in his Statement of
In engaging on these changes, we have initially focused on reaching out to local authorities to increase awareness of the fee exception for children in care through several channels, including the local government bulletin, the Government Communication Service’s local network and the Local Government Association. We are also engaging directly with local authorities through established channels, as we did for the EU settlement scheme. More broadly, we are reaching out to organisations that work with children through the department’s established stakeholder networks to raise awareness and answer questions on the new provisions. We continue to explore further opportunities for engagement, so I am grateful for the points made.
Engagement will be informed by ongoing monitoring of the take-up of the waiver, which is very important, and the fee exception against forecast, including the rate of applications and grants. We will look at whether there are gaps in the spread of applications across local authority areas, to see where further direct engagement on the fee exception in particular would be beneficial. There are currently no specific plans to report to Parliament on these points, but we are open to providing further updates and will consider the best mechanism for doing this.
The noble Baroness raised concerns about the detail of the policy and supporting process. The paper application form has been developed to align with the online form to ensure consistency in the evidence required from individuals across different application routes. Where possible, we encourage applicants to apply online as it offers a more intuitive and customer-friendly experience, but the paper option is there for those who need it. I take the point made by the noble Lord, Lord Russell of Liverpool, about making it shorter and we are open to feedback.
Caseworking guidance has been developed to support a robust assessment of an individual’s financial circumstances. This ensures that waivers are granted only to those who genuinely need them, thus helping to protect the department’s finances and ensure that publicly funded resources are allocated effectively. It also aligns with the guidance published for other affordability-based waivers offered by the department, ensuring consistency in the test applied across different customer groups. Where it is clear that applicants face issues of affordability—for example, where the individual might face destitution—I assure noble Lords that there will not be an onerous focus on the evidence required.
Regarding the specific question raised about asylum support allowance, it is important to note that this is included as a guide for caseworkers in assessing essential living costs. It is only one part of an assessment to consider whether paying the fee would result in a child’s need not being met.
On the very important question of training, caseworkers undergo specialist training before considering cases, and complex cases can be escalated to caseworking conferences or to senior caseworkers to ensure that consistent and fair decisions are made.
We are, as I said, open to feedback on the guidance and application process, and to considering where appropriate improvements could be made. I hope that the initial figures around the take-up of the waiver will provide some reassurance that it is reaching its intended beneficiaries.
I also recognise the regret that the noble Baroness expressed about the Home Secretary’s decision to maintain the fee at the existing level of £1,012, and the specific questions that she raised regarding the best interests of children and the link to the funding of the borders and migration system, and I will now address those points.
First, on the questions on the best interests of children, the noble Baroness is aware that these changes were made following a review of the fee, which was informed by a special assessment against the Home Secretary’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to have due regard to the need to safeguard and promote the welfare of children in the UK when exercising immigration and nationality functions. That assessment looked at questions including the degree to which obtaining British citizenship could be said to be in the best interests of children, as well as the fee level. The conclusion of that assessment was that it was clearly in children’s best interests to apply for citizenship if they were eligible and willing to do so, given the specific legal, practical and intangible benefits that accrue to a child as a result of obtaining that status, and for the fee not to pose a practical barrier to such an application. While we do not have any plans to publish the assessment itself, as is usual practice for policy advice of this nature, I hope the noble Baroness is assured by my clear recognition of those points, which are reflected by the steps the department has taken to improve children’s access to citizenship through the introduction of the waiver and exception.
It is important to be clear about the other relevant factors the Home Secretary may take into account in relation to fees, and the balance of considerations that she must make in determining her policy. Those factors are set out in Section 68(9) of the Immigration Act 2014, and include the costs of exercising the function, the benefits that are likely to accrue as a result of a successful application, and the wider costs of exercising other immigration and nationality functions.
As the High Court made clear in its judgment of December 2019, while Section 55 requires that the best interests of children are treated as a primary consideration in the Secretary of State’s decision-making, this is capable of being outweighed by the combined force of other countervailing considerations. It is therefore incumbent on the Secretary of State to consider the relative weight to be given to the different factors involved in determining her fees policy and for her to decide where the balance of those considerations rightly lies.
This brings us on to the second question raised by the noble Baroness, regarding the justification that the level of the fee is necessary to protect the funding of the borders and migration system. As the House knows, it has been government policy over at least the last decade to increase the role that fees play in providing the funding necessary to support the continued effective running of that system, with the ultimate aim of reducing the burden on the UK taxpayer. This has informed the increases that have been applied to various fees over recent years, including those for nationality, in line with the principles set out in the 2014 Act.
Consequently, any decision to reduce specific fees must be considered in terms of its impact on that overall approach, with any resulting reduction in income needing to be met through either increases to other fees to replace that lost revenue or increased reliance on the taxpayer. The department’s assessment is that a reduction in the fee for child citizenship to the cost of processing an application, which is currently estimated at £416—to answer the question of the noble Lord, Lord Paddick—and which many in this House, including the noble Baroness, have argued for, would lead to a reduction in income in the region of about £25 million. If this income were to be met through other fees instead, it would likely require significant increases to other fees, including those for economic routes that support the UK’s prosperity.
The alternative is a reduction in the funding available to the department. That may in turn have an impact on its key activities, which include ensuring that the UK’s borders are secure from threats and illegal activity, and the effective operation of resettlement schemes to support those in greatest need.
The noble Baroness asked why the option of a fee reduction was not included in the published impact assessment. Final-stage regulatory impact assessments, such as the one laid alongside the regulations, support the appraisal of new primary or secondary legislation by considering the Government’s preferred option against the alternative of not enacting the provisions contained in the legislation. In advance of the final-stage impact assessment, a wider options appraisal is conducted internally to identify and define the options and to support advice to Ministers on prioritisation and choice. I hope I have provided some assurance that the option of a fee reduction was considered as part of that wider appraisal process.
The noble Lord, Lord Paddick, asked about the cost of processing a fee waiver application. The published impact assessment set out that the estimated unit cost for such an application is £177, although I should make it clear that that estimate is just that.
Oh! I do have the figure for the number of children who apply for citizenship each year. The figure I have is 41,071 grants made between April 2019 and March 2020.
I acknowledge the argument that the noble Baroness and others in the House have made on several occasions, that it is inappropriate for nationality to be included in the department’s system of fees and funding. However, it is important to note that the statutory scheme that underpins the setting of fees, which includes both the 2014 Act and the 2016 fees order, which sets a maximum chargeable amount of £1,500 for an application for citizenship registration, was debated and voted on by Parliament, and that the £1,012 fee for child citizenship set in fee regulations in 2018 was therefore in line with Parliament’s intent in establishing that scheme. I know my answer will not satisfy the noble Baroness, who has long registered her objections to this element of the department’s fees framework, but I hope it is recognised that, as the Supreme Court recently reaffirmed, the fees are lawfully set and that our difference amounts to one of politics rather than policy.
In answer to the right reverend Prelate the Bishop of Manchester on how much income is generated through fees, £1.01 billion was generated from visas, immigration and nationality income and passport fees in 2020-21, which contributed to the cost of running the migration and borders system. That does not include income from the immigration health surcharge.
The right reverend Prelate talked about profit. We do not make a profit from application fees as the income is used to fund other vital areas of the migration and borders system, in line with the principles outlined in the 2014 Act. The full operating expenditure costs of the migration and borders system was £3.4 billion in 2020-21. That includes HM Passport Office, Immigration Enforcement, the international and immigration policy group, Border Force and UKVI.
Notwithstanding that point of disagreement, I hope noble Lords will recognise my argument regarding the complex balance of considerations to be made in determining the department’s fees policy and how this exercise has informed the changes that we are discussing. I suspect the noble Baroness will vote to regret but, in any event, I hope I have laid out clearly the Government’s policy.
I think the noble Lord, Lord Ponsonby, asked me one other question, which I am searching for and cannot find.
Yes, the noble Lord, Lord Paddick, also asked about that. I suspect it depends on the case in question.
I asked a specific question. Can the Minister come back, if not today then in writing, about the amount that the Home Office is expending in legal fees in some of the challenges? I think she mentioned that the difference between the cost of the child applications and the amount being charged is about £23 million or £25 million a year. I would be very interested to know how the legal fees per annum compare with that, if possible over the last five years.
I apologise to the noble Lord that I do not have those figures to hand. I also beg to ask the question the other way: I assume the amount that litigants are spending on legal fees is quite significant as well.
My Lords, I thank all noble Lords who have spoken. I think they have amplified the case I have made very well indeed. I was struck in particular by the number of noble Lords who pointed out that this is about the morality of what is happening here. I will come on to what the Minister said, but I do not think her response really addressed the fundamental moral question that underlies so many of what may be practical technical points. That is at the heart and why we keep coming back to this issue.
I am very pleased to have a new member of the terriers. There is no waiting list and no fee, I can assure noble Lords. I am also very grateful to the noble Earl, Lord Dundee, who was not able to speak. It was a shame because I think there was confusion about when we were starting. I am pretty sure he was going to speak in support of the Motion—he is nodding—so we can take that as further evidence of cross-party support.
I thought the noble Lord, Lord Russell of Liverpool, made a very good point about training. The Minister said there is training, but how can you train people to work with, as I said, the deep ambiguity at the heart of this guidance? They are being pointed to meeting the fees and making sure that children’s needs are being met, yet at the same time they are being guided—all right it is guidance, but if they do not follow it, what do they follow in terms of assessing people’s expenditure and so forth? We heard from the noble Lord, Lord Paddick, just how minimal that is. This is not what we expect people to be able to spend as members of our society. They are our fellow citizens. The Minister talked about destitution. This is not about destitution. You should not have to be destitute to have help with the fees.
I very much appreciate the detailed response from the Minister. I think there are a few chinks of light in it. She said that the Home Office is open to comments on the guidance and the forms and so forth. I have asked that the PRCBC should be able to sit down with officials and go through the form—because it has so much expertise in putting in these applications—just to see whether we can make it less forbidding. I take heart from the fact that there have already been a number of applications. This shows the latent demand is there, with people who have been waiting because they cannot afford to pay the fee, but I suspect there are many more who would be put off.
Like the noble Lord, Lord Russell of Liverpool, I would find it incredibly difficult to fill in that form and provide that kind of information about my expenditure—I quail at the thought of having to do it over six months, on average—so I hope that one practical thing that emerges from this debate is that the form will be looked at again, together with the people who really know what this is all about and have so much experience of applying.
Although the Minister said that there were no plans to report back to Parliament, she seemed open to thinking about how that could be done. It would be helpful. As I said, we are not going away and we want to know how it is working and whether it is working well. Although I will still regularly question the level of the fee, it is not such an issue if we are happy with the affordability waiver.
At the end, the Minister said something about the complex balance of considerations. It is one thing for Ministers to talk about it, but caseworkers are being asked to consider that complex balance of considerations. That is unfair on individual caseworkers. However much training they get, it is unreasonable. The Government did not answer my plea that they delete from the form the reference to weighing up the implications for the border system. An individual caseworker should not have to weigh that up against the needs of the child, so I ask the Minister specifically to look again at that sentence. It is one thing for us to debate it here in Parliament but another for caseworkers to have to take that into account.
I am very disappointed that the Minister resisted what a number of noble Lords asked: that the best interests review be published. Although she said a bit about it, we need to see exactly what went on and the thinking behind the assessment that came out of it. Obviously, I will want to read what she said.
I will not seek the opinion of the House at this point, because what we wanted to do was to lay out the issues and give warning that we are not going away and will seek other opportunities. As I said before, the terriers will yap at the heels of the Home Office until they are satisfied that children’s best interests are genuinely being met. For the time being, and unless any noble Lord thinks I have left out something crucial, I beg leave to withdraw the Motion.
House adjourned at 7.34 pm.