This judgment concerns continuing discrimination arising from the denial of automatic British citizenship at birth to a person born outside wedlock. The Supreme Court held (unanimously) that it is a violation of ECHR, art 8, read with art 14, to deport a "foreign criminal" who would have had British citizenship – rendering him illegible for deportation – but for the marital status of his parents at birth.
Background
Born in Jamaica in 1985 to a British father and Jamaican mother, Mr Johnson did not automatically acquire citizenship under the British Nationality Act 1981, ss 2(1)(a) and 50(9) (as it applied at the time) as his parents were unmarried and because his father not his mother was the British citizen. Johnson's father brought him to the UK in 1989 and he was granted indefinite leave to remain in 1992. Neither he nor his father applied for him to be registered as a British citizen, which could be done on proof of good character.
In 2003 Johnson was convicted of manslaughter and sentenced to nine years' in prison. As a foreign criminal sentenced to at least 12 months' imprisonment, the Borders Act 2007, s 32(5) required his deportation unless this would have breached his Convention rights. The Secretary of State made such an order in March 2011.
Johnson appealed to the First-Tier Tribunal, which held that deportation was a proportionate and lawful interference with his ECHR, art 8 rights. It remitted the question of discrimination arising from the denial of British nationality at birth to the Secretary of State, who issued removal directions in August 2012. She reconsidered her decision in November 2012, following the commencement of judicial review proceedings, and determined that deportation would not be discriminatory. The Secretary of State certified Johnson's claim as 'clearly unfounded' per the Nationality, Immigration and Asylum Act 2002, s 82.
High Court
Mr Justice Dingemans held that the Secretary of State's decision violated the claimant's rights under ECHR, arts 14 and 8 as his deportation could not happen but for his being an illegitimate child. There was no justification for this. The judge quashed the Secretary of State's certificate but declined to make a declaration of incompatibility under the HRA s 4. Johnson remained in immigration detention.
Court of Appeal
The Court of Appeal allowed the Secretary of State's appeal. Giving the judgment of the court, Arden LJ held that there was no violation of ECHR, art 14 (read with art 8). Because in 1985 the denial of citizenship to an illegitimate child at birth did not violate the Convention, there was no violation of Johnson's rights on birth. When this position altered, the UK was not obliged to grant nationality retrospectively. Even if Johnson's Convention rights had been violated, this occurred prior to the HRA's entry into force and was therefore outside its ambit. There was no continuing violation for the purposes of the Convention. Re McCaughey [2011] UKSC 20 provides that HRA application to a pre-HRA violation requires a persisting separate and independent obligation; this was not present in this case. Nor did Janowiec v Russia (2013) (App Nos. 55508/07 and 29520/09) assist the claimant.
Judgment of the Supreme Court
In a judgment delivered by Lady Hale, a bench of five JSCs allowed Mr Johnson's appeal, framing the issue as:
"[W]hether an appeal against the decision that section 32(5) of the 2007 Act [which requires the Secretary of State to deport foreign criminals] applies to the appellant, on the basis that to deport the appellant now would be a breach of the UK's obligations under the Human Rights Convention, is clearly unfounded."
Determination of this issue required consideration of the following matters:
i. whether the decision is sufficiently within the ambit of ECHR, art 8 to bring into play art 14;
ii. whether the discrimination (his being liable for deportation when he would not have been had he been born legitimate, his parents married after his birth or he registered for citizenship before he was 18) had a "one off effect" at birth or had continuing consequences which may amount to a present violation of the Convention rights; and
iii. whether such discriminatory effect can be justified.
Applying the recent ECHR cases of Genovese v Malta (2012) (App No. 53124/09) and Kuric v Slovenia (2012) (App no. 26828/06), Lady Hale held that ECHR, art 8 is engaged because the denial of citizenship significantly affects a person's social identity. This was not a one-off event; it continues to engage Johnson's Convention rights because it has a "current and direct effect on the appellant who is currently liable to action by the state […] as a result."
Birth outside of wedlock is a 'status' and that as there was clearly a difference in treatment between the claimant and those in analogous positions save for that status, the discussion of ECHR, art 14 focussed on justification. Lady Hale held that:
"[W]hat needs to be justified is the current liability of the appellant, and others whose parents were not married to one another when they were born or at any time thereafter, to be deported when they would not be so liable had their parents been married to one another at any time after their birth. That is a present distinction which is based solely on the accident of birth outside wedlock, for which the appellant is not responsible, and no justification has been suggested for it" [emphasis added].
On this basis, the Supreme Court concluded that it was impossible to say that Johnson's complaint that his removal from the UK would breach his Convention rights was clearly unfounded. The Court quashed the Secretary of State's certificate with the effect that Johnson's immigration appeal must be allowed to proceed and is "certain to succeed."
Though unnecessary for the appeal disposal, the Court made an HRA s 4 declaration of incompatibility against the Immigration Act 2014 Sch 9, para 70, which imports into the British Nationality Act 1981 a good character requirement for those applying for British citizenship who would have acquired it at birth had their parents been married. This flowed from the Court's conclusions that: (i) requiring such people to apply for citizenship (rather than its being conferred automatically) is appropriate, and (ii) a good character test should not be imposed due to its discriminatory results.
Comment
This judgment reconfirms that questions of citizenship may engage ECHR, art 8 and the decision may have important ramifications for the enjoyment of rights and protections conferred by citizenship, including for the right to vote and residency.
The Supreme Court has endorsed what might be labelled the 'continuing effect doctrine.' No question of retrospectivity arises where an act predating the entry into force of the HRA has a 'current and direct effect' on an individual's Convention rights.
In view of the decision on continuing effect, the court did not see it necessary to engage with the jurisprudence on ECHR, art 2 procedural/investigative obligations regarding certain deaths predating the entry into force of the HRA (see e.g., R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; Re McCaughey [2011] UKSC 20), which had been discussed at length by the Court of Appeal. There is an analogy between a potential ongoing obligation (the status of which was not decided in Keyu) to investigate certain deaths predating the HRA and continuing effect as discussed in Johnson. Whether the decision in Johnson influences the development of the case law on the procedural limb of ECHR, art 2 remains to be seen.
In the courts below there was considerable discussion of the correct approach to causation in the context of ECHR, art 14 discrimination, particularly where several causes are in play. At first instance Mr Justice Dingemans applied a 'but for' test. The Court of Appeal rejected this on the basis that it does not reflect Convention case law, although Arden LJ did not identify such jurisprudence or set out the applicable test. While the Supreme Court's judgment does not address this issue directly, it is implicit that a 'but for the article 14 characteristic/status' approach to causation was adopted.
Finally, it is notable that the Supreme Court made a declaration of incompatibility despite concluding it was not necessary for the determination of the case. This was done with a view to safeguarding the rights of other people in Mr Johnson's position, which might give rise to "all sorts of current consequences."