Post by Jo Moore: “A legitimate question: Deportation, discrimination and citizenship rights for children born out of wedlock.”
3 November 2016
R (o.t.a. Johnson) v. Secretary of State for the Home Department  UKSC 56
19 October 2016 – read judgment
In Jamaica in 1985, a baby was born to British father and a Jamaican mother. The child’s parents never married, and at the age of four he moved to the UK with his father. Under the law in force at the time, as an ‘illegitimate’ child, he did not automatically acquire British citizenship. If his mother had been the British parent, if his parents had ever married each other, or if an application had been made while he was a child, he would have become a British citizen. But he did not.
Two decades pass and the Secretary of State attempts to deport that individual, Mr Johnson, following a string of very serious offences. He appeals on the ground that deportation would be unlawful discrimination. If only his parents had been married, he would be a citizen and not be liable for removal.
The Supreme Court agreed. It held that there was no justification for someone in his position being liable to deportation simply through being born out of wedlock, which was an accident of birth over which a child has no control.
The Court also declared that a “good character” requirement for acquiring citizenship which applied only to illegitimate children was unlawfully discriminatory and incompatible with the Convention.
This judgment represents a further step towards equal rights for children born out of wedlock.
From nobody’s child to equal recognition
As any history enthusiast (or Game of Thrones fan) will know, children born out of wedlock have long been treated less favourably than their legitimate counterparts. At common law, babies born out of wedlock were considered filius nullius, or “nobody’s child”, with no property or other succession rights. Gradually the law recognised the relationship between a child and their mother, but the paternal relationship was of little consequence until the Family Law Reform Act 1969 which recognised the status of illegitimate children for the purposes of passing down property.
Illegitimate children remained on unequal footing as far as nationality was concerned, though. The British Nationality Act 1981 gave citizenship to a child born out of the country whose father or mother was a British citizen, but provided that “the relationship of a father and child shall be taken to exist only between a man and any legitimate child born to him”.
The Family Law Reform Act 1987 aimed to remove discrimination between children born in and out of wedlock, but did not apply to the 1981 Act. Equality in citizenship status was finally enshrined in law by the Nationality, Immigration and Asylum Act 2002 which amended the 1981 Act, so that “father” meant a person who could prove paternity, with no question of marital status. But that amendment only applied to children born on or after 1 July 2006.
From 1987, the Secretary of State had adopted a policy of granting citizenship to minors whose unmarried fathers were British citizens as long as they applied, and – if the child was over 16 – as long as they were of good character. The Immigration Act 2014 now puts that policy into law, and entitles children with a British citizen father to acquire citizenship on application. But the good character requirement remains.
Foreign criminals and deportation
A British citizen cannot be deported. Non-citizens like Mr Johnson who have been imprisoned for 12 months or over are “foreign criminals” whose deportation is deemed to be conductive to the public good (section 32(4) UK Borders Act 2007). The Secretary of State must make a deportation order in respect of foreign criminals. However, deportation must not be effected if an exception applies. Mr Johnson relied on s.33(2):
“Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach (a) a person’s Convention rights…”
In August 2008, Mr Johnson was sentenced to nine years in prison for manslaughter. The Secretary of State subsequently served notice that he was liable for automatic deportation as a foreign criminal. He appealed, and the First Tier Tribunal found that while he enjoyed a private and family life in the UK, his deportation was nonetheless proportionate and lawful. However, it remitted to the Secretary of State the question of whether deportation was unlawfully discriminatory, given that the Claimant would not have been a foreign national if he had not been born out of wedlock.
The Secretary of State decided that the order was not unlawfully discriminatory, and refused to revoke it. She also certified his claim as “clearly unfounded”, meaning that Mr Johnson had no right to appeal the decision within the UK (per s.94 of the 2012 Act). The High Court proceedings which led to this judgment were concerned with those two decisions.
Mr Johnson’s challenge
The changes to citizenship law discussed above were of no help to Mr Johnson. He was born before 1 July 2006, and his father had never applied for citizenship on his behalf, even though it would have almost certainly been granted under the policy at the time. While it is open to him to apply as an adult, he is obviously no longer of good character, so his application would be refused. He cannot become a British citizen.
Mr Johnson instead fought the deportation decision by relying on his right to a private and family life (Article 8 of the Convention) and to protection from discrimination in his enjoyment of that right (Article 14).
The Supreme Court’s decision
The question before the Supreme Court was simple enough: was Mr Johnson’s appeal against deportation “clearly unfounded”, as the Secretary of State had decided? The Secretary of State argued that she had no option but to treat Mr Johnson as a “foreign criminal”, and therefore to order his deportation. Her decision could not be unlawful under the Human Rights Act 1998, she argued, because the UK Borders Act 2007 required her to make the order. Section 6(2) of the 1998 Act provides that an action taken to give effect to primary legislation is not unlawful under the Act. However, the 2002 Act, as we have seen, prevents deportation where removal would breach a person’s Convention rights, which is what Mr Johnson relied upon. It mattered not what the Human Rights Act said, and the s.6(2)(a) argument was “a red herring”.
The Court set out its task at paragraph 23:
“The issue, therefore, is whether an appeal against the decision that section 32(5) of the 2007 Act 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. That depends upon (1) whether it is sufficiently within the ambit of article 8 of the Convention to bring into play the prohibition of discrimination in the enjoyment of the Convention rights in article 14; (2) whether the discrimination had a “one off effect” at birth or whether it has continuing consequences which may amount to a present violation of the Convention rights; and (3) whether such discriminatory effect can be justified.”
Baroness Hale delivered the single judgment.
The Court considered a series of Strasbourg decisions on Article 8 and citizenship and noted that private life has been held to include social identity and biological relationships. A denial of citizenship has an important effect on these matters, and so falls sufficiently within the ambit of Article 8 to trigger the application of Article 14.
Mr Johnson had failed before the Court of Appeal ( EWCA Civ 22), who held that denial of citizenship at the time of his birth was not a violation of the Convention. Further, the Court of Appeal considered that denial had been a “one off” event which occurred at birth with no continuing effect. The Supreme Court disagreed; the denial currently and directly affected Mr Johnson, notably by rendering him liable for deportation.
On the issue of discrimination, it was well-established by Strasbourg case law that birth outside of wedlock is a “status” for the purposes of Article 14 (see Marckx v Belgium (1979) 2 EHRR 330). Moreover, it is one of the “suspect grounds”, where “very weighty reasons” are required before discrimination on that basis can be lawful.
The final question was justification. Could the Secretary of State justify deporting those whose parents never married, where people in the same situation with married parents would not be liable for deportation? The Supreme Court answered in the negative:
“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.”
Deportation in this situation would be unlawfully discriminatory. As such, Mr Johnson’s claim was not “clearly unfounded”, and the Secretary of State’s certification was quashed. His appeal against deportation will inevitably succeed.
The good character requirement
Baroness Hale then considered the issue of citizenship applications.
Individuals born before July 2006 to an unmarried British father can now apply for British citizenship. Section 65 of the 2014 Act gives them a right to be registered as citizens when they do so. However, if they are a “young person or adult”, there is an additional hurdle at Schedule 9, section 70: the applicant must be of good character.
The difference in treatment is obvious. Those born to married parents, parents who later marry or a British citizen mother are automatically and unconditionally entitled to citizenship. Due to a lack of justification, as identified above, that discrimination must be unlawful. So what should be done?
Counsel for Mr Johnson argued that the 2002 Act should have retrospective effect, automatically turning the illegitimate children of British fathers into British citizens. This would do away with any question of applying for citizenship and proving character.
The Supreme Court disagreed. It was reasonable for an individual born out of wedlock to have to apply for citizenship if he wanted it. But to require him to pass a “good character test” to be registered sets him apart from children born to married parents and that discrimination is unjustified. Accordingly, and although it was not necessary to determine Mr Johnson’s appeal, the Supreme Court made a declaration that s. 70 of Schedule 9 to the 2014 Act was incompatible with the Convention.
The effect of the above is to preclude the deportation of Mr Johnson and others in his position. They may not be British citizens, but they cannot be deported as “foreign criminals” either. If and when Parliament takes remedial action to amend the incompatible provision of the 2014 Act, it will be open to Mr Johnson and others like him to apply for and obtain British citizenship.
The Supreme Court recognised that the case didn’t naturally tug at the heartstrings (as borne out by a number of indignant headlines when the judgment was published). But, as the Supreme Court reminded us:
“… the unsympathetic context in which the issue arises should not distract us from the importance of the issue to anyone who was born to unmarried parents at the relevant time.”