Foreign criminal cannot be deported because of his right not to be discriminated against on grounds of illegitimacy

22 July 2014 by

aeroplane in sunsetJohnson, R (on the application of) the Secretary of State for the Home Department [2014] EWHC 2386 (Admin) 17 July 2014 – read judgment

The proposed deportation to Jamaica of a man convicted of drug smuggling and manslaughter would breach his rights under Article 8 and Article 14 because he had not obtained British citizenship on grounds of illegitimacy, the High Court has ruled.

The claimant challenged his proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence. He submitted that deportation would violate his right to private and family life under Article 8 combined with the prohibition on discrimination under Article 14. The discrimination was said to arise because the claimant did not become a British citizen when he was born in Jamaica as the illegitimate child of a British citizen, whereas he would have been a British citizen if he had been a legitimate child, and a British citizen cannot be deported.

Following his conviction for manslaughter the claimant was sentenced to 9 years’ imprisonment. The length of his sentence meant that he was subject to automatic deportation as a foreign criminal pursuant to Section 32 of the UK Borders Act 2007. On his appeal against the respondent’s notice, the issue of discrimination arose because of the fact that the claimant would not have been a foreign national had his British father been married to his Jamaican mother when he was born (in Jamaica).

The issue before the Court was whether there had been a violation of Article 14 in conjunction with Article 8 of the ECHR, either because the claimant was treated differently on the ground that he was illegitimate, or because he was treated differently on the ground that he had a different immigration status.

The judge upheld the application.

Reasoning behind the judgment 

Article 8

The right to acquire a particular nationality is not covered by Article 8 or any other provision of the Convention (Commission Decision K and W v Netherlands (1985) 43 D&R 216) although Strasbourg started moving away from this position when it ruled that an arbitrary denial of citizenship may engage the Convention (Karassev and family v Finland (1999) 28 EHRR CD132). Despite frequent assertions by the Court that entitlement to citizenship is not one of the Convention rights, Articles 8 and 14 frequently became the platform for successful applications in this regard. In Genovese v Malta (2014) 58 EHRR 25 the Court found that the Maltese government’s denial of citizenship to the applicant had violated Article 14 in conjunction with Article 8 regarding the difference of treatment based on birth out of wedlock:

While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise of a violation of article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article.

In these circumstances Dingemans J was satisfied that the claimant’s case within the ambit of Article 8.

This is because the claim involves the Claimant’s social identity, as a person entitled to stay in the United Kingdom, as the child of his British father

Article 14

It was clear from the wording of article 14 “… birth or other status”, and the decision of the European Court of Human Rights in Genovese that discrimination on the basis of birth is a prohibited ground for drawing differences between people.  “But for” his lack of British citizenship, which in turn was based on his lack of legitimacy, the claimant would not be facing deportation as a foreign criminal under the UK Borders Act.

Nor was there any justification for treating the claimant differently because he was illegitimate. As the Strasbourg Court explained in Genovese it is not permissible to treat children born out of wedlock as having no link with their parents.  For these reasons the judge found that there had been a violation of Article 14 in conjunction with Article 8, because the claimant was being treated differently on the ground that he was illegitimate, and such treatment was not justifiable.

Since it was not possible to interpret the provisions of the relevant statute to permit the Home Secretary to make good this breach of the Convention by allowing persons in the claimant’s position to “opt in” to British citizenship, the parties were advised to agree remedies to give effect tot his judgment, failing which a further hearing would be arranged.

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