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

The Supreme Court held that the denial of automatic British citizenship at birth to a child of a British father and a non-British mother because the parents were unmarried is within the ambit of article 8 of the European Convention on Human Rights and engages the prohibition of discrimination in article 14. The difference in treatment between those born to married parents and those born out of wedlock is based solely on birth status and, in the present circumstances, cannot be justified by the State.

Accordingly the Court quashed the Secretary of State's certificate that the appellant's in-country appeal was "clearly unfounded", permitting the appeal under the Nationality, Immigration and Asylum Act 2002 (as then in force) to proceed. The Court also indicated it would make a declaration of incompatibility in respect of paragraph 70 of Schedule 9 to the Immigration Act 2014, insofar as it subjects persons who would otherwise have acquired citizenship automatically to an additional "good character" registration requirement.

Background and facts. The appellant was born in Jamaica in 1985 to a British father and a Jamaican mother who were not married. He was brought to the United Kingdom as a child and was granted indefinite leave to remain in 1992. He has a serious criminal record and, in 2011, the Secretary of State treated him as a "foreign criminal" under section 32(5) of the UK Borders Act 2007 and issued a deportation order. The First-tier Tribunal found that his private and family life existed but remitted the question whether the deportation decision was unlawfully discriminatory because he would have been a British citizen if his parents had been married. The Secretary of State later certified the appellant's in-country human rights claim as "clearly unfounded" and refused to revoke the deportation decision.

Procedural history. Dingemans J (Administrative Court) found a violation of article 14 read with article 8 and quashed the certification but declined to read the nationality legislation differently or to make a declaration of incompatibility. The Court of Appeal allowed the Secretary of State's appeal, holding that any alleged discrimination was a "one-off" event at birth and could not found a present Convention violation. The appellant appealed to the Supreme Court.

Nature of the claim and issues. The immediate claim was a challenge to the Secretary of State's certificate under the 2002 Act that the appellant's in-country appeal was "clearly unfounded". The Court framed the issues as (i) whether the denial of citizenship by descent falls within the ambit of article 8 so as to enliven article 14; (ii) whether the discriminatory effect was a past "one-off" event or had continuing consequences (notably current liability to deportation); and (iii) whether any discrimination could be justified.

Reasoning and disposition. The Court held that denial of citizenship has a profound effect on social identity and therefore falls within the ambit of article 8. The Court rejected the characterization of the denial as merely a past one-off event: the continuing legal consequences (in particular present liability to deportation) meant there was a continuing situation capable of constituting a present violation. The discriminatory distinction drawn solely from birth outside wedlock required "very weighty reasons" to be justified and none were advanced sufficient to sustain it in the appellant's circumstances. Consequently the Secretary of State's certification was unlawful and quashed, permitting the in-country appeal to proceed. The Court further concluded that paragraph 70 of Schedule 9 to the Immigration Act 2014, insofar as it subjects persons in the appellant's position to the section 41A good-character requirement, is incompatible with Convention rights and the court would make a declaration of incompatibility.

Wider context. The Court noted that many others are in the same position (people born before 1 July 2006 to a British father and non-British mother who were not married) and that the decision has broader consequences (for example, the right to vote) beyond deportation cases.

Appeal allowed. The Court held that the denial of automatic citizenship to persons born out of wedlock to a British father and non-British mother is within the ambit of article 8 and engages article 14; the resulting present liability to deportation is a continuing effect and the difference in treatment could not be justified. The Secretary of State's certificate that the appellant's in-country appeal was "clearly unfounded" was quashed. The Court indicated it would make a declaration of incompatibility in respect of paragraph 70 of Schedule 9 to the Immigration Act 2014.

First instance: Administrative Court (Dingemans J) [2014] EWHC 2386 (Admin) (held violation of article 14 read with article 8; quashed certificate). Court of Appeal: allowed Secretary of State's appeal, [2016] EWCA Civ 22. Supreme Court: [2016] UKSC 56 (this appeal allowed).