Johnson, R (on the application of) v The Secretary of State for the Home Department

Current discriminatory consequences of historic nationality legislation may engage article 14 read with article 8, even where the original treatment occurred many years earlier. Where a person faces deportation because historic legislation denied citizenship on the ground of birth out of wedlock, the relevant discrimination may be assessed at the time of the deportation risk. Discrimination on that suspect ground requires very weighty reasons and cannot be justified merely by the availability of a later citizenship application or by legislative bright lines. The court may use section 3 of the Human Rights Act 1998 only so far as the interpretation remains consistent with the grain of the legislation. A human-rights claim cannot be certified as clearly unfounded where reasonable doubt exists about its success.

The claimant was born in Jamaica in 1985 to a British father and an unmarried mother. Because the statutory definition of father and child then applied only to legitimate children, he acquired Jamaican nationality rather than British citizenship. He later obtained indefinite leave to remain, but was convicted of manslaughter and other serious offences and became liable to automatic deportation as a foreign criminal.

The First-tier Tribunal found that deportation engaged article 8 and was proportionate, but remitted the discrimination issue. The Secretary of State maintained the deportation decision and certified the human-rights claim as clearly unfounded. The central issues were whether the claimant was currently discriminated against on grounds of illegitimacy or immigration status, whether the relevant legislation could be read compatibly with the Convention, whether the commencement order should be quashed, and whether the certification was lawful.

1. Article 14 and article 8. The claimant’s social identity and established private life brought the nationality issue within the ambit of article 8. Comparing him with a person having the same British father and other relevant attributes, but whose parents were married, demonstrated different treatment on the ground of birth out of wedlock.
2. The relevant discrimination was current. Although the original statutory distinction operated at birth, the claimant was presently exposed to deportation because he was not a British citizen. His illegitimacy, his failure to apply for citizenship before age 18, and his criminal offending were each causative of that position.
3. Discrimination on the ground of illegitimacy is a suspect form of discrimination. It requires very weighty reasons. The historic character of the legislation, the claimant’s possible earlier application for registration, and the Secretary of State’s decision to correct the position prospectively did not provide sufficient justification.
4. The alternative complaint based on immigration status added nothing independent to the illegitimacy complaint and did not establish a separate violation.
5. Section 3 of the Human Rights Act 1998 conferred wide interpretative powers, but it could not be used to read section 162(5) of the Nationality, Immigration and Asylum Act 2002 as authorising an optional scheme for persons in the claimant’s position. That interpretation would conflict with the legislative scheme, whose effect was to provide automatic citizenship.
6. Quashing the commencement order would not assist the claimant and risked leaving the amended statutory provisions without an operative commencement date, with adverse consequences for others.
7. The certification was unlawful. Applying the test in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, reasonable doubt about the claim’s possible success meant that it was not clearly unfounded. The certification was quashed. The parties were directed to seek agreement on appropriate relief, with a further hearing if necessary.

First-instance judicial review. The judgment records earlier First-tier Tribunal proceedings, including a finding that deportation was proportionate and lawful and a remission of the discrimination issue to the Secretary of State. No appellate decision of this court is stated.