K (A Child) v The Secretary of State for the Home Department

For British nationality purposes, a statutory rule deeming a child’s father to be the mother’s husband at birth may provide certainty, but it cannot be justified if it denies a child the right to acquire her biological father’s nationality merely because her mother was married to another man. An application and satisfactory proof of paternity may properly be required. A wider discretionary power to grant nationality is insufficient where children in comparable circumstances otherwise have a right to nationality. Section 50(9A) of the British Nationality Act 1981 could not be read down under section 3 of the Human Rights Act 1998 without crossing the boundary between interpretation and amendment. The court therefore made a declaration of incompatibility under section 4 of the 1998 Act.

The claimant, a child born in the United Kingdom, was the biological daughter of a British man who was named on her birth certificate. Her mother was Pakistani and was married to another Pakistani man when the claimant was born. The Secretary of State revoked the claimant’s British passport, treating the husband as her father under section 50(9A)(a) of the British Nationality Act 1981.

The claimant sought judicial review, arguing that the provision should be read as a rebuttable presumption under section 3 of the Human Rights Act 1998, or declared incompatible with Articles 8 and 14 ECHR. The central issues were whether the statutory scheme discriminated against children born to mothers married to someone other than their biological fathers, and what remedy was available.

1. Discrimination. Acquisition of nationality through a parent falls within the ambit of Article 8 ECHR. A child born to a mother married to another man has an “other status” for Article 14 purposes. The statutory difference between that child and a child whose unmarried mother’s biological paternity is proved therefore required justification. The court also considered that “birth” could encompass unchosen circumstances of birth, although it was unnecessary to decide that point.
2. Justification. Legal certainty as to parenthood, and limiting birth parentage to two parents including the birth mother, were legitimate aims. The scheme was rationally connected to those aims. It was not, however, the least restrictive means and did not strike a fair balance because it denied an affected child a right to nationality and substituted only a discretionary application under section 3(1) of the British Nationality Act 1981. An application, proof of paternity and a process for displacing the statutory presumption were proportionate; an open-ended discretion taking account of character and other matters was not.
3. Section 3 HRA. Section 50(9A)(c) expressly gave priority to paragraphs (a) to (ba). Reading paragraph (a) as a rebuttable presumption would require the same treatment of the assisted-conception provisions in paragraphs (b) and (ba), contrary to the scheme of the Human Fertilisation and Embryology Act 1990 and the Human Fertilisation and Embryology Act 2008. That would cross the boundary between interpretation and amendment.
4. Outcome. HM Passport Office had correctly applied the statutory scheme and its decision did not breach section 6(1) HRA because primary legislation made a different act impossible. The claim did not therefore succeed on the passport decision. The court exercised its discretion under section 4(2) HRA and declared incompatible the provision preventing recognition of a biological father for nationality purposes where the mother was married to another man at the child’s birth, excluding licensed IVF cases.

This was a first-instance judicial review. Permission was granted on the papers by Jonathan Swift QC, sitting as a Deputy High Court Judge, on 26 October 2017. Other cases raising the same issue were stayed behind this lead case.