Recently in Bancoult (No 2)  UKSC 35, Lady Hale dissented and dissected the rivaling theories of liberal imperialism (concentrating on good governance) and utilitarian imperialism (concerned purely with befitting imperial power) and she concluded that full and fair disclosure by public authorities “is a proud feature” of judicial review in this jurisdiction. In this case, which Dingeman’s J heard as a judicial review application at first instance, she allowed a foreign criminal’s appeal but only because he was not really a foreigner. Speaking unanimously for the Supreme Court, her Ladyship overturned the Court of Appeal’s judgment by holding that Johnson could not be deported for being a Jamaican criminal. To ascribe such liability to him because of his accidental birth outside wedlock would breach his Convention rights and would be unlawfully discriminatory. It was unnecessary to do so but the court nevertheless made a declaration of incompatibility under section 4 of the Human Rights Act 1998 in connection to the good character requirement in paragraph 70 of Schedule 9 to the Immigration Act 2014 which would have allowed Johnson to acquire British citizenship but for his criminality. This judgment will inevitably send shock waves across the establishment for the humiliation inflicted upon its “flagship” legislation.
“The appellant’s problems would be over if his mother could be found and his father persuaded to marry her,” is how Lady Hale summed up Johnson’s predicament. Arden LJ had, of course, thought otherwise. As seen previously, Johnson’s parents – a British father and a Jamaican mother – were unmarried. He was born in 1985 in Jamaica. Aged four he came to live in the UK with his father. He would have been British had he been legitimately born, or his parents married after his birth, or simply if his mother had been British. He would have obtained British citizenship if he or his father had made an application while he was still a child and, if over 16, of good character. But they did not. The Court of Appeal’s vehemence in dismissing his appeal is indicative of its failure to acknowledge the full scale of the problem at hand.
Johnson’s criminality meant that he acquired numerous convictions including a conviction for manslaughter resulting in a sentence of nine years’ imprisonment. A deportation order on the basis of the automatic deportation regime for foreign criminals under section 32(5) of the UK Borders Act 2007 was made. He resisted removal directions mounting arguments that his deportation would not only breach article 8 of the ECHR but would also be unlawfully discriminatory under article 14 because no liability as to deportation would arise had his parents been married to one another.
Upon reconsideration the initial decision was confirmed and in addition his claim was certified as clearly unfounded with the result that he did not enjoy an in-country right of appeal. He amended his claim to challenge the deportation decision and the certification.
Finding that discrimination against a child of unmarried parents at birth and subsequently violated Johnson’s Convention rights, Dingeman’s J quashed the certificate. He found unjustifiable violations of article 8 and 14 but declined to make a declaration of incompatibility. The Court of Appeal reversed the judge’s decision by holding that there had been no violation of Johnson’s rights at the time his birth as it was long before the 1998 Act’s entry into force. It held that the denial of automatic citizenship was a “one off” event that occurred at birth and had no continuing effect capable of constituting a breach of Convention rights.
The Supreme Court
The basic issue in the present case was simple but its outcome impacted on the autonomous benefits conferred by British citizenship such as the right to vote, the right to live and to work, and the advantages that accompany those rights. As ever, Lady Hale’s focus was on alleviating the suffering of the faultless child. In that regard, Johnson was not to blame for the imperfections of his parents’ relationship. Foreign criminality meant that the issue arose in an invidious context. Yet this trait alone was incapable of overriding the rights of those born to unwed parents at the material time.
Against this it was observable that law reforms – for example, the Report on Illegitimacy  EWLC 118 and the Illegitimacy: Second Report  EWLC 157 – over the last half-century progressively removed discrimination against children of unmarried parents from the statute book by erasing the distinction between “legitimate” and “illegitimate”. Since 2006 the law entitled someone in Johnson’s predicament to automatic British citizenship at birth but this change was not retrospective.
The issue of certification and the breach of Convention rights upon deportation instigated questions regarding whether the rules denying him citizenship had a “one-off effect” at his birth or had continuing consequences within the reach of the 1998 Act, and whether the discrimination produced was justifiable. After reviewing Strasbourg cases such as Genovese v Malta (2014) 58 EHRR 25, Kuric v Slovenia (2013) 56 EHRR 20 and Menneson v France, Labassee v France  ECHR 664, Lady Hale held at para 27 that as such the Convention does not confer the right to a nationality but “the denial of citizenship, having such an important effect upon a person’s social identity, is sufficiently within the ambit of article 8 to trigger the application of the prohibition of discrimination in article 14.”
Marckx v Belgium (1979) 2 EHRR 330 left no doubt that illegitimate birth constitutes a “status” for the purpose article 14. In the context of article 14, it was a longstanding principle that differential treatment without objective and reasonable justification is discriminatory if (i) it fails to pursue a legitimate aim or (ii) there is an absence of a reasonable relationship of proportionality between the means employed and the aim sought to be realised. As early as Inze v Austria (1988) 10 EHRR 394, it had been held that birth outside wedlock falls within the class of “suspect” grounds, where “very weighty reasons” are required to justify discrimination. In the instant case, denial of citizenship produced a current and direct effect upon Johnson who was confronted with state action by way of imminent deportation. Following Norris v Ireland (1991) 13 EHRR 186, the very existence of legislation penalising homosexual acts “continuously and directly” affected the applicant’s private life. In that case, the applicant had neither been prosecuted nor threatened with prosecution.
Johnson’s parents’ marriage to one another would result in him automatically becoming a British citizen and preclude his liability as deportation “no matter how badly he had behaved.” There was a need to justify his current liability to deportation when he would not be so liable but for the accident of birth outside wedlock for which he was not responsible. Lady Hale found that:
34. … no justification has been suggested for it. It is impossible to say that his claim that Exception 1 applies, based on article 14 read with article 8, is “clearly unfounded”.
The certificate was thus quashed. The appeal was allowed to proceed and was bound to succeed for the same reasons. The court rejected the government’s argument that “citizenship should not be imposed upon people unless they have asked for it”. Lady Hale opined that a variety of consequences interlinked with the situation where persons were denied the automatic right to citizenship because of the fact that their British father was not married to their non-British mother at the time of their birth. For example, the right to vote is a Convention right under article 3 of the First Protocol; it is a characteristic of citizenship. Other people, who were not criminals, were bound to be in Johnson’s position.
Those born prior to 1 July 2006 must first register as citizens or they are denied that right. Successful registration entails passing pass the “good character” test laid down in section 41A of the British Nationality Act 1981. All this needs to be done because the parents of those in question were not married to one another at or at any time after their birth. Johnson submitted that the Nationality, Immigration and Asylum Act 2002 (Commencement No 11) Order 2006, giving effect to the 2002 amendments to section 50(9) of the 1981 Act, was incompatible with the Convention rights because it did not operate retrospectively with a view to granting automatic citizenship to everyone previously denied their citizenship rights because of their parents’ marital status.
Argument in the Court of Appeal had hinged on R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs  UKSC 69 and Re McCaughey  UKSC 20. But in view of the Supreme Court’s approach to the “continuing effect” principle it was unnecessary to unpick the jurisprudence relating to article 2 of the ECHR and the extent of the duty to investigate the unprovoked deaths 24 of unarmed civilians caused by a Scots Guards patrol in colonial Malaysia.
In any event, Adren LJ’s judgment was too much of a straitjacket and she seems to have lost sight of the real issues at stake, which she sacrificed to uphold the judicial crusade against foreign criminals. Equally, the Supreme Court’s own approach is also much more generous than its earlier judgment in Pham  UKSC 19, see here, where it adopted a relatively conservative stance on the subject of citizenship in comparison to Johnson.
Professor Alison Young’s analysis of Johnson stresses the importance of the nature and role of human rights adjudication because the Supreme Court made a declaration of incompatibility despite one being unnecessary for the disposal of the case. “Should courts merely provide remedies for those whose rights have been infringed, or should they also prompt action to remedy potential infringements of rights, or both?” she asks. For her adjudication pursuant to the 1998 Act needs to serve “both as a means of resolving individual disputes before the court and as a means of facilitating expository justice.” Characterising the circumstances in Johnson as “fairly discrete”, Professor Young concludes:
Courts are better placed to assess whether a breach of Convention rights has actually taken place. Nevertheless, as the arguments in Santos and M v Secretary of State for Exiting the European Union demonstrate, circumstances may also arise when declarations are needed before we can be certain as to how future events will proceed, as it may be too late to prevent potentially unlawful actions once they have occurred. How the court will negotiate its way through the competing aims of dispute resolution and expository justice in more complex scenarios than Johnson remains to be seen.