R (K) v Secretary of State for the Home Department

The court considered whether section 50(9A) of the British Nationality Act 1981 should be read so that the statutory deeming of a mother’s husband as the child’s father operates only as a rebuttable presumption displaceable by proof of biological paternity, and whether any incompatibility with Articles 8 and 14 of the European Convention on Human Rights can be remedied by reading the Act under section 3 of the Human Rights Act 1998. The judge held that the statutory language of section 50(9A) gives a clear order of priority so that subsection (c) only applies where subsections (a)–(ba) do not, and that it is not possible to read down that language compatibly with the Convention rights without amending the statute. The court found that the statutory scheme did discriminate on grounds of status and therefore breached Article 14 read with Article 8, but because section 3 HRA could not be used to alter the statutory priority, the Secretary of State’s decision applying the statute (to treat the mother’s husband as the child’s father and to revoke the passport) was lawful under domestic law. The court therefore proposed to make a declaration of incompatibility under section 4 HRA in respect of the operation of section 50(9A) in non‑IVF cases.

Background and parties. The claimant was a United Kingdom‑born child whose biological father was a British citizen and who was named as father on the birth certificate. The child’s mother, at the time of the child’s birth, was married to another man who was not the biological father. HM Passport Office revoked the child’s British passport on the view that section 50(9A)(a) of the British Nationality Act 1981 deems the mother’s husband at the time of birth to be the child’s father for nationality purposes, thus excluding the biological father from conferring British citizenship.

Nature of the claim and relief sought. Judicial review of the decision to revoke the passport. The claimant sought either (i) a declaration and recognition that she is the child of her British biological father for nationality purposes, or (ii) that section 50(9A) be read down under section 3 HRA to permit displacement of the statutory deeming by proof of paternity, or (iii) in the alternative, a declaration of incompatibility under section 4 HRA.

Issues framed by the court.

• Whether the deeming provision in section 50(9A)(a) operates as a conclusive deeming, or as a rebuttable presumption displaceable by proof of paternity.
• Whether the statutory scheme engaged Articles 8 and 14 ECHR and, if so, whether any difference of treatment was justified.
• Whether a compatible reading under section 3 HRA was possible, and if not whether a declaration of incompatibility under section 4 HRA was appropriate.

Reasoning and conclusions. The court traced the historical and statutory development of nationality and parental deeming, emphasising the clear statutory priority in section 50(9A) that a mother’s husband (and persons treated as parents under the 1990 and 2008 Human Fertilisation and Embryology Acts) take precedence over those who can satisfy prescribed proof of paternity. The judge accepted that the scheme interfered with Convention rights and that Article 14 read with Article 8 was engaged because children born to mothers married to someone other than their biological father are treated differently to children whose mothers are unmarried. The court found the objective of legal certainty as to parentage to be legitimate and that the statutory scheme was rationally connected to that objective. However, the judge concluded the scheme was not proportionate in removing the right, in all non‑IVF cases, to acquire nationality from a biological father on proof of paternity, because it replaced a right with a mere discretion under section 3 BNA 1981 for children whose mothers were married to another man. The statutory wording was, however, unambiguous and could not be read down under section 3 HRA without effectively amending the statute; therefore the domestic decision revoking the passport was lawful but the court would make a declaration of incompatibility under section 4 HRA in respect of section 50(9A) as applied to non‑IVF cases.

First instance: The court held that the scheme in section 50(9A) BNA 1981 discriminates contrary to Article 14 read with Article 8 ECHR in cases like the claimant’s, but that the statute’s clear priority wording cannot be read down under section 3 HRA. As a result, HM Passport Office’s decision to treat the mother’s husband as the child’s father (and to revoke the passport) was lawful under domestic law, but the court will make a declaration of incompatibility under section 4 HRA in respect of the operation of section 50(9A) in non‑IVF cases, because the statutory scheme cannot be made Convention‑compatible by interpretation.