Throwing up blazing issues of historic injustice and denial of citizenship at birth, this jamming case is hot stuff. Earlier, the Court of Appeal overturned the judgment of Dingemans J and held that no violation of article 14 of the ECHR (read with article 8) occurred by denying British nationality to Eric Erron Johnson who was born out of wedlock to a British father and a Jamaican mother. Arden LJ held that the Human Rights Act 1998 did not apply retrospectively and found that the judge had been wrong to find a continuing violation of Convention rights since Johnson’s birth. For the Supreme Court, the first issue turns on the application of the HRA to causative events occurring before its commencement, but which arguably have continuing effect. Secondly, the justices will also decide whether it is possible and appropriate to make a declaration of incompatibility with the ECHR as to historic – repealed – legislation denying automatic British citizenship to illegitimate children because their mother was not British even though the father was. Now aged 31, Johnson moved to the UK at age four and the court will decide whether his claim that a deportation order removing him to Jamaica violates his rights to a family life and freedom from discrimination is “clearly unfounded”?
In 1985, sections 2(1) and 3(1) the BNA 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. Following the Roman rules of mater semper certa est (the mother is always certain) and pater semper incertus est (the father is never certain), the law thus precluded him from acquiring British citizenship at birth because he was an illegitimate child. He did not apply for citizenship after being granted settlement/ILR despite the availability of a scheme as of 1987 allowing him to do so on evidence of paternity. Dingemans J observed that he has “a very serious criminal record” and profited from commercially supplying class A drugs and was sentenced to 9 years’ imprisonment for being convicted of manslaughter in 2008 after falsely asserting at trial that he acted in self-defence.
All this resulted in his deportation to the country of his birth – i.e. Jamaica – being sought under the UK Borders Act 2007. “If he had been born legitimate he could not be deported,” is how Mr Southey QC put it to Lady Hale, Lord Kerr, Lord Reed, Lord Hughes and Lord Toulson at the outset of the hearing of this expedited appeal. Everyone in court seems to have shared a joke after Lady Hale’s judicial intervention that it was not so much a question of Johnson’s father not being “married” – rather the key question was more about being “married to his mother” in order to qualify for UK citizenship.
Her Ladyship was determined not to fall into the trap of approaching this case as one solely relating to a foreign criminal, attempting to bend the law to his advantage, who was already here in the UK. Much to Mr Southey’s delight, in her eyes the Supreme Court’s decision will have an impact on the entire class of individuals who were ousted from all the rights appertaining to citizenship because of the law’s refusal to recognise a British father’s relationship with his illegitimate child/children.
Dingemans J was of the view that Johnson “would probably have been granted British citizenship” but left home as a teenager and neither him nor his father applied for his registration (up until the age of 18) as a British citizen. He had last met his mother on a trip to Jamaica in 1994 when he was nine and had lost touch with her. The High Court declined to make a declaration of incompatibility of the concerned legislation with the Convention and the judge declined to order Johnson’s release from detention.
Arden LJ, to whom Johnson complained that his harsh predicament mandated that his right to a private life outweighed the public interest in immigration control, dashed his hopes further when her Ladyship reversed the judge’s other findings and dismissed the cross-appeal that discriminatory denial of citizenship was an historic injustice under Gurung  EWCA Civ 8. She preferred not to cover the troublesome concept of historic injustice and its consequences on the outcome of this case. Keeping the door firmly shut, she said 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.
The Convention is silent on the denial of nationality or the status of illegitimate children. Her Ladyship acknowledged the fluidity of the ECHR by recalling that it is a “living instrument”. 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.
As of 1987 the home office operated a policy atoning the approach in the BNA as originally enacted. It 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. 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.
As a matter of Treaty obligation Genovese arguably does 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 maintains that any grant of nationality to a person subsequent to birth could only be prospective. It stresses that 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.
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. K & W was only an admissibility decision by the Commission. 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.
Johnson’s convictions preclude him from relying on section 65 (persons unable to acquire citizenship: natural father not married to mother, effective from 6 April 2015) of the 2014 Act. He cannot avail the provision because an application remains conditional on good character (section 41A, BNA). For him distinguishing between legitimate and illegitimate children is not justifiable and as held in Fabris v France (2013) EHRR 19 very weighty reasons are required prior to a state’s adoption of differential treatment on the basis of legitimacy.
For him, granting nationality with retrospective effect is 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.
Interestingly, in Proportionality: the way ahead? Arden LJ expressly disapproved of the Supreme Court’s approach in the historic case of Quila  UKSC 45. She was unconvinced that the interference with article 8 rights was “colossal”. Judicial meddling with settled legal arrangements is a dangerous thing in her view and therefore it is easy to accuse her of using a sledgehammer to crack a nut in Johnson’s case.