R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56

Mr Johnson, born in Jamaica to a British father and Jamaican mother who were unmarried, was denied automatic British citizenship and faced deportation as a foreign criminal. The Supreme Court held this discrimination based on birth status violated Articles 8 and 14 ECHR.

Facts

The appellant was born in Jamaica on 18 March 1985 to a Jamaican mother and a British father who were not married to one another. Under the British Nationality Act 1981, as it then stood, section 50(9) defined the father-child relationship as existing only between a man and his legitimate child, meaning the appellant could not acquire automatic British citizenship by descent through his father. Had his parents been married, or had his mother been British, he would have been a British citizen automatically.

His father brought him to the United Kingdom in 1989 aged four, and he was granted indefinite leave to remain in 1992. No application was ever made to register him as a British citizen during his minority. From 2003 onwards he accumulated a serious criminal record, culminating in a conviction for manslaughter in 2008 for which he received nine years’ imprisonment. In March 2011, the Secretary of State served notice of liability to automatic deportation as a ‘foreign criminal’ under section 32(5) of the UK Borders Act 2007. The Secretary of State subsequently certified his human rights claim as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002.

Dingemans J held that there had been a violation of Article 14 read with Article 8 ECHR and quashed the certificate. The Court of Appeal reversed, holding the denial of citizenship was a ‘one off’ event predating the Human Rights Act 1998.

Issues

The Supreme Court identified the central question as whether the Secretary of State’s certificate that the appeal was ‘clearly unfounded’ could stand. This depended on three sub-issues:

• Whether the denial of citizenship fell within the ambit of Article 8 so as to engage Article 14;
• Whether the discrimination had only a ‘one off’ effect at birth or had continuing consequences amounting to a present violation;
• Whether the discriminatory effect could be objectively justified.

Arguments

Appellant

Mr Hugh Southey QC argued that the appellant’s current liability to deportation, which would not exist had his parents been married, was a present consequence of unjustified discrimination based on birth status, contrary to Article 14 read with Article 8. He further submitted that the 2006 commencement of the amendments to section 50(9) of the 1981 Act ought to have operated retrospectively.

Respondent

Mr Tim Eicke QC argued that the original denial of citizenship was a ‘one off’ act preceding the Human Rights Act, that any remedial steps could legitimately operate only prospectively, and that citizenship should not be imposed on people without their consent. He further contended it is contrary to principle for legislation to have retrospective effect, particularly where it effects an automatic change of status.

Judgment

Lady Hale, giving the unanimous judgment, allowed the appeal and quashed the certificate.

Ambit of Article 8

Although the Convention does not guarantee a right to a particular nationality, the Court relied on Genovese v Malta (2014) 58 EHRR 25 and Karassev v Finland 28 EHRR CD132 to hold that the denial of citizenship has such an important impact on a person’s social identity that it falls within the ambit of Article 8, triggering Article 14.

Continuing effect

The Court rejected the Court of Appeal’s analysis. Citing Norris v Ireland (1991) 13 EHRR 186, Lady Hale held the denial of citizenship had a current and direct effect because the appellant was presently liable to deportation as a consequence.

Discrimination and justification

Birth outside wedlock is a recognised ‘status’ under Article 14 and falls within the category of ‘suspect’ grounds requiring ‘very weighty reasons’ to justify differential treatment (citing Inze v Austria (1988) 10 EHRR 394 and Fabris v France (2013) 57 EHRR 19). The Court identified that what required justification was the appellant’s present liability to deportation when, but for the accident of his parents’ marital status, he would not be so liable. No justification had been advanced for this present distinction. The claim could not be regarded as ‘clearly unfounded’.

Section 6(2)(a) Human Rights Act

Lady Hale held that section 6(2)(a) was a ‘red herring’ because Exception 1 in section 33 of the 2007 Act, and rule 397 of the Immigration Rules, prevent deportation where it would breach Convention rights, irrespective of section 6.

Declaration of incompatibility

The Court further made a declaration of incompatibility in respect of paragraph 70 of Schedule 9 to the Immigration Act 2014, which inserts into section 41A of the 1981 Act a requirement of ‘good character’ for persons registering under sections 4F to 4I. Imposing a good character test on persons who would, but for their parents’ marital status, automatically have acquired citizenship at birth produces an unjustifiable discriminatory result.

Implications

The decision confirms that the denial of citizenship, although not itself a Convention right, falls within the ambit of Article 8 because of its profound effect on social identity, and that discrimination based on birth outside wedlock requires ‘very weighty reasons’ to justify. Crucially, the Court held that the consequences of historic discrimination in nationality law can constitute a continuing violation where they presently expose an individual to state action such as deportation.

The decision matters to anyone born before 1 July 2006 to a British father and non-British mother who were unmarried, particularly in relation to deportation, voting rights, and other consequences of citizenship. The declaration of incompatibility regarding the good character requirement in section 41A signals that Parliament must reconsider the registration regime for those denied automatic citizenship purely because of their parents’ marital status.

The judgment is carefully confined: it does not require citizenship to be imposed retrospectively without application, accepting that requiring an application avoids inconvenient consequences such as unwanted dual nationality. The unjustified element is the imposition of an additional good character hurdle on those who would otherwise have been citizens automatically. The case is significant as a clear application of the principle, recognised since Marckx v Belgium, that children should not be disadvantaged by the accident of their parents’ marital status.

Verdict: Appeal allowed. The Secretary of State’s certificate that the appellant’s human rights claim was ‘clearly unfounded’ was quashed. The Court further made a declaration of incompatibility in respect of paragraph 70 of Schedule 9 to the Immigration Act 2014, insofar as it applies the good character requirement in section 41A of the British Nationality Act 1981 to applications under sections 4F to 4I.

Source: R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56