TRUST AS A CORE PRINCIPLE OF THE CONSTITUTION

Abstract

assumptions” (at [41]–[42]). One of such assumptions – derived from R. v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] EWCA Civ 1293, [1997] 1 W.L.R. 275 – was that “statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act” (at [34], [39], [41]–[42]). The court stressed that when the decision maker was empowered by the 2014 Act to set the level of the fee, there was no express “criterion of affordability”. Rather, she was allowed to set the fee in a way that (inter alia) “subsidised the wider immigration and nationality system” (at [45]– [46], [49]). The “appropriateness of imposing the [impugned] fee” was a “question of policy which is for political determination”, but not that for the court (at [51]). This reasoning seemed to have ignored the abovementioned assumption in statutory interpretation. The 2014 Act states that the impugned fee may go beyond the costs for processing the application, but the question of affordability does not seem to have been directly addressed. The 2014 Act does not expressly rule out the potential relevance of affordability, when (say) the decision maker examines the “fees charged by or on behalf of governments of other countries in respect of comparable functions”: see the 2014 Act, s. 68(9)(e). There are two ways to read this legislative silence: either the decision maker can impose any fee she wants, or she must impose it in a way that must not be entirely unaffordable, albeit exceeding the costs for processing the application. The absence of an express criterion of affordability (per Lord Hodge) is logically consistent with either reading. Critically, the abovementioned assumption would suggest that the latter reading should be taken, and this matter should not be reduced to purely one of political determination.