R v Secretary of State for the Home Department

The denial of citizenship by descent affects a person’s social identity and therefore falls within the ambit of article 8, engaging article 14. A current liability to deportation may be a continuing consequence of discriminatory nationality legislation, even where citizenship was initially denied before the Human Rights Act 1998 came into force.

Birth outside marriage is a suspect status. A difference based upon that status requires very weighty justification. It is unjustifiable to make a person deportable, or subject eligibility for remedial registration to a good-character requirement, solely because the person’s British father was unmarried to the non-British mother.

The appellant was born in Jamaica in 1985 to a British father and Jamaican mother who were unmarried. The nationality legislation then in force prevented him from acquiring British citizenship through his father. After his conviction of serious offences, the Secretary of State decided that he was a foreign criminal subject to automatic deportation and certified his human-rights claim as clearly unfounded.

Dingemans J found unjustified discrimination contrary to articles 8 and 14 and quashed the certificate: [2014] EWHC 2386 (Admin). The Court of Appeal reversed that decision, holding that the denial of citizenship was a completed event predating the Human Rights Act: [2016] EWCA Civ 22.

The Supreme Court considered whether denial of citizenship was within article 8, whether its effects continued, whether the resulting distinction was justified, and whether the statutory good-character requirement was compatible with the Convention.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Kerr, Lord Reed, Lord Hughes and Lord Toulson agreed, held that the claim was not clearly unfounded. The Secretary of State’s certificate was quashed. The appellant’s statutory appeal was to proceed and was certain to succeed.

2. Denial of citizenship has an important effect upon social identity and therefore falls within the ambit of article 8. A state need not create citizenship by descent. Once it does so, however, it must secure that entitlement without discrimination contrary to article 14. The approach in Genovese v Malta was applied.

3. The discrimination had a present and direct effect. Although automatic citizenship was denied at birth, the appellant remained exposed to present state action through deportation. The case therefore concerned a continuing situation, rather than merely the consequences of a completed historical act.

4. Birth outside marriage is a status under article 14. Persons born to married and unmarried parents were in analogous positions, but the appellant would have been a citizen, and immune from deportation, if his parents had married at or after his birth. Discrimination on this suspect ground required very weighty reasons. No justification was advanced for the present distinction based solely upon parental marital status.

5. Exception 1 in sections 32 and 33 of the UK Borders Act 2007 depends upon whether removal would breach Convention rights. It does not require the Secretary of State’s decision itself to be unlawful under section 6 of the Human Rights Act 1998. Section 6(2)(a) was therefore irrelevant. If Exception 1 applies, automatic deportation under section 32(5) does not apply.

6. It was reasonable to require a person who had not acquired citizenship automatically to apply for registration. It was incompatible with articles 8 and 14, however, to impose a good-character requirement upon people who would automatically have been citizens but for their parents’ marital status. Paragraph 70 of Schedule 9 to the Immigration Act 2014, so far as it inserted references to sections 4F to 4I into section 41A of the British Nationality Act 1981, was declared incompatible.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, quashed the certificate and made a declaration of incompatibility: [2016] UKSC 56.
2. Court of Appeal: Allowed the Secretary of State’s appeal, holding that the denial of citizenship was a completed event predating the Human Rights Act and that the claim could be certified as clearly unfounded: [2016] EWCA Civ 22.
3. High Court, Administrative Court: Dingemans J held that the discrimination was unjustified and violated articles 8 and 14. He quashed the certificate but declined to read the legislation compatibly or make a declaration of incompatibility: [2014] EWHC 2386 (Admin).