The Supreme Court held that it was incompatible with the European Convention on Human Rights to treat the appellant as liable to automatic deportation because he lacked British citizenship solely on the ground that his British father and Jamaican mother had never married. He was not responsible for their marital status or for having been born before the law changed, yet those facts alone exposed him to removal as a foreign criminal. Lady Hale, with whom the rest of the court agreed, held that this present difference in treatment was unjustified.
Birth, citizenship and criminal convictions
Mr Johnson was born in Jamaica in 1985. His father was British and his mother was Jamaican. Because his parents were unmarried, he did not acquire his father’s British citizenship at birth under the law then in force.
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He had lived in the UK since childhood. A conviction for manslaughter and a nine-year sentence later triggered consideration of automatic deportation.
The deportation challenge
British citizens cannot be deported. Under the UK Borders Act 2007, a non-citizen sentenced in the United Kingdom to at least 12 months’ imprisonment is a foreign criminal. The deportation of a foreign criminal is deemed conducive to the public good, and section 32(5) requires the Secretary of State to make a deportation order. That duty does not apply where Exception 1 applies: removal would breach a person’s Convention rights. Even then, deportation remains deemed conducive to the public good, but it would be contrary to those rights actually to deport the person. Rule 397 of the Immigration Rules also says that a deportation order will not be made if removal would be contrary to the United Kingdom’s obligations under the Human Rights Convention.
In March 2011 the Secretary of State notified the appellant that he was liable to automatic deportation. A deportation order was made that August. The First-tier Tribunal found that he had both a private and a family life here, but that deportation was a proportionate and lawful interference with those rights. It remitted the separate question whether deportation was unlawfully discriminatory, since he would not have been liable had his parents been married.
On 23 November 2012 the Secretary of State decided that the decision was not unlawfully discriminatory, refused to revoke it, and certified the claim as clearly unfounded. The certificate prevented an appeal within the United Kingdom. Dingemans J held that the discrimination was unjustified and that article 14, read with article 8, had been violated. He quashed the certificate, but declined to interpret the legislation as conferring citizenship or to make a declaration of incompatibility. The Court of Appeal allowed the Secretary of State’s appeal. It treated the denial of citizenship as a one-off act at birth in 1985, before the Human Rights Act 1998, and held that the claim could therefore be certified as clearly unfounded.
Why marriage controlled citizenship
Section 2(1)(a) of the British Nationality Act 1981 makes a person born outside the United Kingdom a British citizen if, at birth, his father or mother is a British citizen otherwise than by descent. Until 1 July 2006, however, a man counted as a father under the Act only in relation to a legitimate child. A later marriage could legitimate a child, and he would then be treated as if born legitimate. The 2006 change, allowing prescribed proof of paternity to establish fatherhood, applied only to children born on or after that date. Separate registration routes were later created for people prevented from acquiring citizenship automatically because their parents were unmarried, but section 41A still prevents registration unless the applicant is of good character.
What the Supreme Court had to decide
The appeal concerned the certificate that an appeal was clearly unfounded. The Secretary of State argued that primary legislation required her to treat the appellant as a foreign criminal, so section 6(2)(a) of the Human Rights Act meant that her act was not unlawful even if incompatible with Convention rights. Lady Hale held that this was a red herring. Exception 1 requires a breach of the Convention rights, not a breach of section 6. If it applies, section 32(5) does not, and a deportation order cannot lawfully be made under that provision. The available grounds of appeal also included that the decision was not in accordance with the Immigration Rules or otherwise not in accordance with the law.
The certificate therefore stood only if a claim that deportation now would breach the Convention was clearly unfounded. That depended on whether denial of citizenship fell within article 8, so that article 14 applied; whether the discrimination was spent at birth or had continuing consequences; and whether its effect could be justified. The relevant comparisons were with someone who would not be liable to deportation if his parents had married at or after his birth, if his mother had been the British parent, or if he had been registered before 18.
A present and unjustified difference
The Convention does not guarantee a right to a particular nationality. Strasbourg decisions had nevertheless accepted that denial of citizenship may affect private life through its impact on social identity, including recognition of biological relationships. In Genovese v Malta, denial of citizenship to the child of unmarried parents was within the ambit of article 8. Once a state recognises citizenship by descent, it must do so without discrimination. Lady Hale held that the denial here, because of its important effect on social identity, engaged article 14.
She rejected the Court of Appeal’s conclusion that the denial was a one-off event at birth. A continuing situation is a state of affairs maintained by the state’s continuing conduct, and legislation may continuously affect private life even without a prosecution. The appellant is currently liable to state action, in the form of deportation, because citizenship was denied.
Birth outside wedlock is a status for article 14. It is a suspect ground, so very weighty reasons are required to justify different treatment. The argument had been bedevilled by disagreement over what required justification: the denial in 1985, the continued denial of citizenship, the distinction between citizens and non-citizens, or the rules governing foreign criminals. Lady Hale held that the matter requiring justification was the current liability to deportation of people whose parents never married, when they would not be liable if their parents had married at any time after their birth. That distinction rests solely on an accident of birth for which the appellant is not responsible, and no justification had been suggested. His claim that Exception 1 applied could not be called clearly unfounded.
The good character requirement
Quashing the certificate followed from the deportation provisions, but Lady Hale also considered others denied automatic citizenship for the same reason. One current consequence is the right to vote. People born before 1 July 2006 must be registered and pass the good character test, whereas marriage of their parents would have given them citizenship without that hurdle. The same cannot be said of everyone legitimated by a later marriage, yet they too acquire citizenship automatically. The distinction depends solely on birth status and cannot be justified.
The appellant argued that the 2006 commencement of the amended definition of father should have operated retrospectively. The Secretary of State replied that citizenship should not be imposed retrospectively on people who have not asked for it. Lady Hale accepted that, where citizenship is not acquired automatically at birth, it is reasonable to require an application, for clarity and to avoid inconvenient results. It is not reasonable to add a good character test for people who would have acquired citizenship automatically but for their parents’ marital status. The incompatible provision is paragraph 70 of Schedule 9 to the Immigration Act 2014, which applies section 41A to sections 4F, 4G, 4H and 4I of the 1981 Act. A declaration would be made, although it was not necessary to dispose of the appeal.
Verdict: The Court unanimously allowed the appeal and quashed the certificate. Mr Johnson’s appeal against deportation could proceed and, the Court said, was certain to succeed. It also declared the good-character requirement incompatible as applied to registration in the circumstances addressed. The judgment did not itself grant citizenship.
Source: R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56
