Illegitimacy and Denial of Nationality at Birth: No Retrospective Application of Human Rights Act

R (Johnson) v The Secretary of State for the Home Department [2016] EWCA Civ 22 (26 January 2016)

In yet another a win for the home office, the Court of Appeal (Arden, Laws and Lindblom LJJ) found no violation of article 14 read with article 8 of the European Convention on Human Rights in relation to denial of British nationality at birth to Eric Erron Johnson, a convicted offender and Jamaican national subject to a deportation order who was the illegitimate child of a British father and a Jamaican mother. Delivering the judgment of the court, Arden LJ held that Dingemans J had erred in his conclusion as regards a continuing violation having occurred from Johnson’s birth in Jamaica on 18 March 1985 and that proceedings challenging the deportation order could be brought under the Human Rights Act 1998 – which did not apply retrospectively. The ruling is also interesting because of Johnson’s reliance on the recent decision in Keyu [2015] UKSC 69 and the court’s consideration of section 65 of the Immigration Act 2014, albeit neither had an effect on the outcome of the appeal. As is customary with her judgments, Arden LJ made it a point to summarise the issues and her overall conclusion at the outset.

Her Ladyship explained that the present case turned on the effect of discriminatory denial of British nationality before the commencement of the HRA on a deportation order against a foreign offender and she decided that even if Johnson’s Convention rights had been infringed, any violation was outside the HRA’s perimeter because it occurred before the Act entered into force. “If it could be considered to be a continuing violation, then it would not matter that the original violation had occurred before the HRA came into force, but in my judgment it was not a continuing violation for the purposes of Strasbourg jurisprudence,” is how Arden LJ put it as she set aside Dingemans J’s decision and dismissed Johnson’s cross-appeal. No order was made remitting the matter to the First-tier Tribunal as no historic injustice had taken place and the home office’s decision of November 2012 – to make a fresh deportation order against Johnson after the FtT found that deportation was proportionate and lawful but remitted the matter for reconsideration on issues of discrimination – was allowed to stand.

Context

In 1985, sections 2(1) and 3(1) the British Nationality Act 1981 read with section 50(9) provided that an illegitimate child like Johnson could acquire British nationality at birth or by registration as a minor only if his mother was a British national. Johnson entered the UK in 1991. He did not apply for British nationality. Johnson’s deportation was linked to him committing homicide and other serious offences because of which pursuant to section 32 of the UK Borders Act 2007 the home office had to deport him unless he could rely on one or more of the section 33 exceptions, in his case that his Convention rights had been violated.

He profited from commercially supplying class A drugs and was sentenced to 9 years’ imprisonment for being convicted of manslaughter after falsely asserting at trial that he acted in self-defence. Notice was served in 2011 that he was subject to automatic deportation and a deportation order was subsequently signed but was appealed. In tribunal proceedings, the FtT initially allowed Johnson’s appeal on the erroneous belief that he was British but it corrected itself afterwards. Several adjournments later, it found that he had a private life in the UK but that his deportation was not disproportionate. Upon the tribunal remitting the appeal to the home office for an assessment of discrimination contrary to articles 8 and 14 ECHR, the decision-maker responded by maintaining the deportation decision and also certified Johnson’s human rights claim as one which was clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002.

Johnson began judicial review proceedings to challenge the decision on the ground that the home office had failed to consider the violation of his rights under article 14 read with article 8 that arose because of the denial of British nationality on birth. At [2014] EWHC 2386 (Admin), Dingemans J found that the denial of British nationality at birth amounted to unjustified discrimination as claimed and that the violation had continued and was the cause of the deportation order. In contrast to others who were exactly in the same position but whose parents were married, the fact that Johnson was not British because of his illegitimacy and could be deported meant that his illegitimate birth was being used as a basis to treat him differently in an unjustifiable manner.

The Court of Appeal

The issues were (i) whether the denial of nationality at had caused a violation of article 14 read with article 8 ECHR (ii) if so, the nature of the state’s obligation arising on that violation and (iii) whether the HRA applied to a violation originating in a pre-HRA event. Having considered the competing arguments, Arden, Laws and Lindblom LJJ preferred those advanced by the appellant home office. The court found no violation of Johnson’s Convention rights on birth and said that the HRA did not apply retrospectively. Similarly, Johnson’s cross-appeal, that discriminatory denial of citizenship was an historic injustice which should in any event have been considered under article 8, was also dismissed.

Violation of Article 14 and Article 8 ECHR?

In Genovese v Malta (2014) 58 EHRR 25, it was held that even in the absence of a relevant family life, withholding citizenship engaged article 8 because citizenship had an impact on an individual’s private life and despite the ECHR not conferring a right to acquire a particular nationality if a state offered its nationality it could not do so on a discriminatory basis without justification. Furthermore, unjustified discrimination contrary to article 14 occurred where a state imposed a blanket denial of the acquisition of nationality by descent on illegitimate children of fathers holding its nationality.

For the home office, under its skin Genovese produced rather different results than those contended by Johnson. Although at the time of Johnson’s birth an illegitimate child could acquire British nationality at birth or by registration as a minor only if his mother was a British national, as of 1987 the home office had a policy which Dingemans J found would have enabled him to apply to become a British citizen on proof of paternity, and (if over 16) on proof of good character. The policy came to be placed on a statutory footing when section 9 (legitimacy of child) of the 2002 Act amended section 50(9) of the BNA to enable an illegitimate child to be registered as a British national by virtue of his father’s nationality if certain requirements as to proof of paternity and good character were met.

The home office argued that the existence of the policy meant that prior to the judgment in Genovese the UK had removed the blanket ban on the illegitimate children of British national fathers obtaining British nationality at birth. Moreover, it was equally submitted that as a matter of Treaty obligation Genovese did not bind the UK because under article 46(1) of the Convention a state is only bound by decisions given against it. Demanding conformity with the principle of legal certainty, the home office said that any grant of nationality to a person subsequent to birth could only be prospective. It said the grant of British nationality from a past date had not been authorised by Parliament because of the legal difficulties associated with a retrospective status change.

Regardless of the provision in section 4F of the BNA, which was inserted by section 65 (persons unable to acquire citizenship: natural father not married to mother, effective from 6 April 2015) of the 2014 Act – enabling a person to apply for registration as a British citizen even if he was an illegitimate child and his father was a British citizen – Johnson was unable to utilise the provision because such an application was conditional on good character (section 41A, BNA). His convictions prevented him from applying for nationality under section 4F as the child of a British citizen.

Johnson attempted to rebut the home office’s position on Genovese by stressing that the denial of nationality violated the Convention and that the violation minimally persisted down to the making of the deportation order. For him, Genovese reflected the effect of the Convention at his birth. Despite the absence of a right to nationality under the Convention and irrespective of the fact that article 14 is not freestanding, relying on R (S) v Chief Constable of Yorkshire Police [2004] UKHL 39 he argued that article 14 is capable of giving rise to a violation if the claim falls within the scope of another article and that under Genovese the enjoyment of nationality falls within the scope of the private life limb of article 8. Thus, unless non-compliance with the Convention is justified, where a right to citizenship is voluntarily provided by a state the right must not be provided for in a manner infringing the Convention’s non-discrimination provisions.

It was also said that distinguishing between legitimate and illegitimate children was not justifiable and as held in Fabris v France (2013) EHRR 19 very weighty reasons were required prior to a state’s adoption of differential treatment on the basis of legitimacy. It was furthermore submitted that granting Johnson nationality with retrospective effect was the only way for the state to remedy his situation. The example of section 47 of the BNA – which prior to its repeal in 2006 granted to an illegitimate child, rendered legitimate by the subsequent marriage of his parents, British nationality as from the date of his parents’ marriage – demonstrated that in circumstances nationality could be granted retrospectively.

Arden LJ remained unpersuaded by such arguments and said that section 47 was the only example of the retrospective grant of nationality that the court had been shown and that the retrospective effect only applied from the date of the parents’ marriage. “No provision in any statute we have been shown makes any acquisition of nationality subsequent to birth retrospective with effect from birth,” is how her Ladyship summed up the situation and she found no violation of Johnson’s rights on birth because:

19. … He could only acquire nationality thereafter with effect from birth if he could invoke a statutory provision which had retrospective effect, and the UK was not bound to introduce such a provision.

20. As originally enacted the BNA, in common with other European legal systems, appears to have adopted the two rules said to be derived from Roman law – mater semper certa est (the mother is always certain) and pater semper incertus est (the father is never certain).

21. There is no reference in the Convention to the denial of nationality or the status of illegitimate children. It is well established, however, that the Convention is a living instrument and that its meaning can change over time. The question is whether this is what happened in the case of the right to nationality by descent of illegitimate children.

According to the court, at first sight, even in 1985, paternity could be established by DNA testing. Arden LJ explained that and once children could be born by IVF treatment it was no longer true that the mother of a child was always certain. She said even without those developments in biotechnology, there would have been cases where there was no difficulty in proving paternity. Dingemans J had noted that in Marckx v Belgium (1979-89) 2 EHRR 330, Belgian law was held to be discriminatory because of precluding illegitimate children from having a claim on the estate of their mother.

Soon after Johnson’s birth, in K & W v Netherlands (1985) 43 D&R 216, the European Commission on Human Rights decided that no right to acquire any particular nationality was conferred by the Convention. Johnson’s advocate accepted that K & W did not anticipate Genovese and was at variance with it and expressed an unqualified view. K & W was only an admissibility decision by the Commission, not the court. However, since there was nothing to suggest that the court would have taken a different view, Arden LJ did not find it possible to conclude that, by 1985, the discriminatory denial of nationality to an illegitimate child at birth violated the Convention: see para 23.

Overall, Arden LJ was not satisfied that the Strasbourg Court would have found violations of article 14 read with article 8 by the discriminatory denial of nationality at birth to illegitimate children if it had been required to rule, at the date of Johnson’s birth, on sections 2, 3 and 50(9) of the BNA as originally enacted.

Nature of the State’s Obligation

The court said at para 27 that the UK was not obliged to grant nationality to Johnson retrospectively when it became clear that it was a violation of the Convention to deny nationality at birth to illegitimate children of British national fathers. The Marckx ruling was clear at para 58 that its effects on the rights of illegitimate children should not have retrospective effect; this strongly indicated that changes in status arising out of the interpreting the Convention in light of present day conditions should not necessarily compel that conclusion that the change has to be retrospective or imposed on those affected. Arden LJ accepted the submission that “if a state had to bring its law on nationality into line with Strasbourg’s changing approach, it would be open to a state to make that change prospective only and available only on application.”

The court rejected the argument that the good character requirement could not be raised against Johnson because he was not treated in the same way at birth as a legitimate child. To Arden LJ’s mind the difference in treatment did not mean he was entitled to an option to become a British citizen on proof of paternity exercisable at any time in his life and her Ladyship was prepared to proceed on the basis that, if the denial of British nationality to Johnson at birth had amounted to a violation, it would have been sufficient for him to have the right to acquire nationality without conditions (save as to proof of paternity) during his minority and for 5 years thereafter. She found no evidence that he would ever have applied for British nationality and said that once that period for special treatment had expired, Johnson was no longer able to claim differential treatment from other people presently applying for British nationality. She mentioned Stec v UK (2006) 43 EHRR 1017 and pointed out that in imposing conditions on the grant of nationality subsequent to birth, the state enjoys a wide margin of appreciation because such conditions are a part of economic or social strategy. (In Stec, Strasbourg held that discrimination will be justified unless it is “manifestly without reasonable foundation”.)

The court also rejected the argument that a legitimate child would not lose citizenship because of falling foul of the good character requirement and therefore an illegitimate child should not do so either. There was a clear difference between someone who already has nationality and someone who seeks to acquire a particular nationality. It was also clear that “very different considerations apply to the former situation particularly when it may lead to statelessness.”

Does the HRA Apply Retrospectively?

If a violation of the ECHR had occurred despite the above conclusions it was composed of the denial of a right to British nationality on birth. Dingemans J had fallen into the trap of thinking that this was a violation of the ECHR that would apply whenever Johnson’s lack of British nationality gave rise to prejudice, as when the home office ordered his deportation. However, he had been wrong to place reliance in Ratcliffe v Secretary of State for the Home Department [2009] EWCA Civ 39 and the decision of the UN Committee on the Elimination of Discrimination against Women in Salgado v UK (Communication No 11/2006) because neither decision was addressed to the commencement provisions of the HRA.

Mentioning Posti & Rahko v Finland App No 27824/95, Arden LJ said at para 31 that it was well-established that the mere fact that a violation had consequences was not synonymous with there being a continuing violation from the date of the triggering event. Posti & Rahko concerned a fishing restriction that caused a violation of the right to peaceful enjoyment of the right to fish certain waters and Strasbourg found that the fact that an event had significant consequences over time did not mean that the event has produced a continuing violation.

Arden LJ held that the HRA did not apply retrospectively and she explained that section 22(4) stated that section 7(1), authorising proceedings to enforce Convention rights, did not apply to an act taking place before the coming into force of that section. The provision applied in Johnson’s case and would be vitiated if he could rely on a pre-HRA violation which did not continue after the HRA’s commencement. Johnson submitted that a continuing violation was ongoing so long as he was treated differently from legitimate children of British nationals. But Arden LJ found that Dingemans J had been wrong in thinking that there was a continuing violation for reason that the “but for” test for causation was met. In reality, the test was not reflective of Convention jurisprudence. The denial of citizenship was just one of the background factors and at para 34 her Ladyship thought it was “a matter of common sense” that Johnson’s convictions for serious offences were the immediate cause of the deportation order. Johnson’s failure to safeguard his own interests by making an application pursuant to the 1987 policy was one of the causative factors and he had never sought British nationality prior to the start of the proceedings (which would now inevitably fail for character related shortcomings).

Keyu v SSFCA

Noting that recent jurisprudence on article 2 – concerning whether the obligation to hold an inquiry into a suspicious death is a continuing obligation which may give rise to a violation after the commencement date of the HRA even though the death occurred before that date – formed a potential parallel with the issue of continuing obligation, Adren LJ analysed the difference in approach between Re McKerr [2004] UKHL 12 and Re McCaughey [2011] UKSC 20. Her Ladyship said that in Re McKerr, the House of Lords found that if the death occurred before the commencement of the HRA, no obligation to hold an inquiry under article 2 arose because the HRA did not apply retrospectively. Subsequently, in Re McCaughey, evolving Convention case law demonstrated that the obligation to hold an article 2 inquiry was a separate and independent obligation and that the provision could apply irrespective of the HRA on the condition that a decision was taken about such an inquiry’s conduct after the commencement of the HRA. If no step was taken, article 2 did not apply.

Johnson’s advocate accepted that because of Kay v Lambeth BC [2006] UKHL 10 the Court of Appeal could not depart from Re McCaughey even if it were satisfied that that case no longer rightly reflected Convention jurisprudence. Arden LJ did not express any view about (i) what the Supreme Court might decide in the future and (ii) whether the HRA has any wider effect. As she said, she was merely interpreting the submissions aired in the Court of Appeal.

The mammoth Supreme Court ruling in Keyu & Ors v Secretary of State for Foreign and Commonwealth Affairs & Anor [2015] UKSC 69 came into play in these proceedings because Johnson relied on it to mount the submission that Re McCaughey would no longer be good law if his case went to the Supreme Court. Last year’s 92-page judgment in Keyu – which is as much an historical document as it is a legal ruling – turned on whether or not the UK should hold a public inquiry or equivalent investigation regarding the killing of 24 unarmed civilians by a Scots Guards patrol in Batang Kali, Selangor, Malaysia in 1948.

In Keyu, the Supreme Court applied Janowiec v Russia (2014) 58 EHRR 30 where the Grand Chamber held that owing to the fact there was no genuine link between the entry into force of the Convention in relation to Russia (1998, “the crucial date”) and the deaths in question, no obligation existed in relation to investigating the deaths that took place in the Katyn massacre in 1940. The Grand Chamber said some relevant act or omission needed to follow the crucial date and except in the most exceptionally serious violations, the maximum time limit between the event giving rise to the violation and the crucial date was ten years before the failure to hold an inquiry into the event could result in a violation of the Convention. Even where the crucial date fell within the time limit, other conditions needed to be met and a significant step had to be taken after the crucial date.

Keyu was important to Johnson’s case as it threw up the issue whether a continuing obligation arose to hold an inquiry that had never been begun after the Convention came into force. Unlike McCaughey, Keyu did not concern whether a continuing obligation arose subsequent to the HRA’s commencement to complete an inquiry which it had already been decided should be held. Applying Convention jurisprudence to this issue, the Supreme Court questioned whether the same test needed to be applied to provide an answer to the issue whether after the arrival of the HRA a continuing obligation arose to hold an inquiry into a pre-HRA death when no decision to hold one had been taken prior to the HRA’s entry into force. In that regard, at para 97 of Keyu, Lord Neuberger of Abbotsbury (President) explicitly left open the question whether the Janowiec rationale could apply to allegations of article 2 violations originating before the HRA.

Arden LJ rejected the government’s submission that, rather than the operation of the HRA, the Keyu case concerned the application of the Convention to acts before the UK became a party to it. When pressed that the principle that the HRA has no retrospective effect remained as before, she said retrospective effect was not the issue in Janowiec and the point considered was whether the violation continued or occurred after the Convention came into force. The court also rejected Johnson’s submission that the impact of the case law considered in Keyu on McCaughey affected his case and Arden LJ espoused a tripartite rationale for finding that the approach in Janowiec did not apply in his case.

First of all, she reasoned that in the present case no separate and independent obligation arose out of a pre-HRA violation of Convention rights in comparison to instances where a violation of article 2 rights has occurred or an obligation under that provision to hold an enquiry has arisen. Thus far, the Convention case law did not indicate that the UK must change its legislation in order to put the victims of a violation by reason of the denial of British nationality into the same position as they would have been if the violation had never occurred. Arden LJ again rejected the argument that it was enough that Dingemans J thought that the deportation order would not have been made “but for” denying Johnson British nationality at birth. Secondly, it was too late in this case because it had been made clear by the Strasbourg Court that in the absence of exceptional circumstances the maximum time between the death and the crucial date was ten years.

Finally, by its nature, the denial of nationality “is a once and for all event” whose finality could not be impeached on the basis of Loizidou v Turkey (1996) 23 EHRR 513 – a case where a continuing violation by Turkey in relation to the misappropriation of property in Northern Cyprus had been the found. Strasbourg held that the applicant had remained owner of the land in question and suffered a continuing interference with his property rights after the original misappropriation took place. Remarking that in Loizidou things were “quite unlike the present case”, Arden LJ held that on the present facts:

47. … The violation occurred once and for all on Mr Johnson’s birth. He never became a British national and so the violation began and ended upon his birth.

The court rejected the argument that the UK should subsequently have provided the right to acquire nationality by registration at any time. The approach could only help Johnson if the UK could only do so on terms which replicated without additional requirements the right given to illegitimate children of British national mothers at birth. Parliament was not precluded from inserting the good character requirement, either immediately or from some date such as five years after an illegitimate child obtained his majority. Indeed, it was possible for Parliament to formulate the view that the right could be subjected to conditions which were considered reasonably appropriate.

Johnson failed to put forward grounds for opposing the propriety of the good character condition. It was not enough to say that good character was not a condition for the acquisition of nationality at birth because it was not sensible to impose a good character condition in that scenario.

Historic Injustice

Relying on R (Gurung) v Secretary of State for the Home Department [2013] EWCA Civ 8, Johnson mounted the argument that where historic injustice has occurred, as it had done because of the original violation as at his birth, the point must carry considerable weight in any article 8 balancing exercise. The government responded by arguing that Johnson’s appeal against the decision to make the deportation order was bound to fail on human rights grounds because of section 117C of the 2002 Act (as amended) and the public interest considerations laid down therein. However, Arden LJ did not find it necessary to cover the troublesome concept of historic injustice and its consequences on the outcome of this case. As her Ladyship saw it, historic injustice was inapplicable where no violation in domestic law was made out or where no wrong had occurred which the domestic courts could have remedied pursuant to the HRA.

Laws and Lindblom LJJ

Their Lordships concurred with Arden LJ’s reasoning that the home office’s appeal should be allowed. However, neither of them expressed a view on Keyu but nonetheless agreed with her point that the Supreme Court’s ruling did not affect the outcome in the instant case.

Comment

This case is a clear reminder that, unlike some of her colleagues, Arden LJ is not an expansionist of human rights law. But because of the fact that a very large number of immigration and public law cases are entering the Supreme Court these days, only time will tell whether Arden LJ, Laws and Lindblom LJJ are right and whether Dingemans J was wrong?

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 14, Article 2, Article 8, Automatic Deportation, Children, Citizenship and Nationality, Court of Appeal, Human Rights Act, Illegitimacy, Immigration Act 2014, Neuberger PSC and tagged , , , , , . Bookmark the permalink.

One Response to Illegitimacy and Denial of Nationality at Birth: No Retrospective Application of Human Rights Act

  1. Andy Grossman says:

    Thanks for this. I always enjoy reading the blog.

    “Legitimacy” has been abolished by most, perhaps all, U.S. states (even the word, replaced with “nonmarital”) but U.S. nationality law remains discriminatory: http://www.afsa.org/citizenship-and-unwed-border-moms-misfortune-geography

    As it happens, many American parents giving birth in Britain — so long as their offspring qualify for British or another EU/EEA/Swiss nationality — often are happy that their infants escape the FATCA and PFIC (US tax and investment law) curses. (The cost of a US tax preparer dealing with a Child ISA, for example, can easily exceed the value of the investment. And of course it’s taxable there to the US citizen child and attributed to the parent as income.)

    Legitimacy remains a criterion for nationality of many Arab and Muslim countries, and no doubt many others as well, as you doubtless know.

    Kind regards, Andrew Grossman Retired U.S. Foreign Service Officer Member, NY Bar LLB (Columbia), Dr en droit (Louvain) London & Montreux

    >

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