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

A discriminatory denial of nationality at birth must be assessed against Convention law as it stood at the time. A later Strasbourg interpretation does not, without more, establish that the earlier denial violated Articles 14 and 8. Even if a pre-commencement breach existed, the Human Rights Act 1998 provides a remedy only where a separate and independent Convention obligation continued after commencement. A past denial is a once-and-for-all event. Later consequences and “but for” causation do not create a continuing violation. Nationality changes may be prospective and subject to reasonable conditions. Historic injustice cannot support relief where there was no domestic violation or HRA remedy.

Mr Johnson was born in Jamaica in 1985 to a British father and Jamaican mother. Under the then applicable nationality provisions, an illegitimate child could not acquire British nationality through a British father alone. After Mr Johnson committed serious offences, the Secretary of State made a deportation order and refused to revoke it.

Dingemans J held that the denial of nationality was discriminatory under Article 14 read with Article 8 and constituted a continuing violation actionable under the HRA. The Secretary of State appealed from that decision. Mr Johnson cross-appealed against the refusal of further relief. The central issues were whether the original denial violated the Convention and whether the HRA could apply to a violation originating before its commencement.

The appeal was allowed and the cross-appeal dismissed. Arden LJ gave the leading judgment, with Laws LJ and Lindblom LJ agreeing with her reasons.

1. The denial of nationality at birth did not violate Article 14 read with Article 8 on the material available. The Convention is a living instrument, and Genovese v Malta represented a later Strasbourg interpretation. However, K & W v Netherlands had expressed the unqualified view that the Convention conferred no right to acquire a particular nationality. There was insufficient basis for concluding that Strasbourg would have found a violation in 1985. The original provisions of the British Nationality Act 1981 therefore did not establish the claimed historic injustice.
2. Even if there had been a violation, section 22(4) of the Human Rights Act 1998 prevented section 7(1) from applying to an act before commencement unless the violation continued after that date through a separate and independent Convention obligation. Later consequences of an earlier act did not themselves constitute a continuing violation. The judge’s reliance on “but for” causation was therefore insufficient. The immediate causes of deportation included Mr Johnson’s serious offending and his failure to apply for nationality under the available policy.
3. The denial of nationality was a once-and-for-all event. The Article 2 inquiry authorities, including McCaughey and Janowiec, did not create a continuing obligation in this case. The court declined to express a wider view on the possible effect of Keyu on Article 2 cases. The Court of Appeal was bound by Kay v Lambeth BC to follow the Supreme Court’s approach.
4. A prospective nationality route could include reasonable conditions, including good character. A person seeking nationality could not be compared with one who already possessed it. Historic injustice could not assist where there was no Convention violation or HRA remedy. The Secretary of State’s decision of 23 November 2012 stood, with no remittal to the FTT.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and dismissed Mr Johnson’s cross-appeal. The Secretary of State’s decision dated 23 November 2012 was left standing.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Dingemans J held that the denial of nationality violated Article 14 read with Article 8 and constituted a continuing violation actionable under the HRA: [2014] EWHC 2386 (Admin).