Deemed Paternity and Discrimination: Section 50(9A) of the British Nationality Act 1981 is Incompatible with the ECHR

K (A Child) v The Secretary of State for the Home Department [2018] EWHC 1834 (Admin) (18 July 2018)

Importantly, the Administrative Court has recently held that the scheme in section 50(9A) of the British Nationality Act 1981 which deemed a child’s father to be the man the mother was married to at the time of the birth rather than the child’s biological father for the purposes of establishing nationality is incompatible with article 14 of the ECHR read with article 8. The court held that even though it was reasonable for legislation to prescribe a child’s deemed paternity, the law did not strike a fair balance because it did not permit the child to acquire the biological father’s nationality as of right on proof of paternity as it only conferred a right to ask the Home Secretary to exercise a discretion to grant such nationality. K was born in London in May 2014 and showing her British father as SK and her Pakistani mother as MT, her birth was registered in June 2014. She is SK’s biological child and they have lived together since her birth. MT did not enjoy settled status in the UK when K was born so she was unable to claim British nationality through her. Notably, prior to entering into a committed relationship with SK, it was the case that MT had broken off ties with her Pakistani husband RS because of domestic violence. The situation was such that only SK, a British national who had always lived in the UK, was able to provide an avenue for K to attain British nationality.

An application for a British passport for K was made using her birth certificate and evidence that SK, her father, is British and a British passport valid from October 2014 to October 2019 was granted. In July 2016, K’s mother, MT, made an application for leave to remain, based on her family relationship with SK and K. The application stated that she had entered the UK with a son from her first marriage on 24 April 2013 and made an asylum application based on her fear of her then husband, RS. The application also relied on the fact that she had a British child. In July 2016, MT applied for leave to remain relying on her family relationship with SK and K. She said that she had a British child and that she entered the UK in April 2013 with a son from her first marriage and claimed asylum owing to fear of her then husband RS. In June 2017, Her Majesty’s Passport Office (HMPO) revoked K’s British passport because of “a change of circumstances”. Enquiries about MT’s application for leave to remain showed that at the time of K’s birth, she was married to RS, something previously unknown to HMPO.

For the purposes of establishing her nationality, K was deemed to be RS’s child by virtue of section 50(9A)(a) of the 1981 Act and not MT’s child as recorded on her birth certificate. Thus, her British passport was issued in error, in the mistaken belief that she was a British national which the decision-maker subsequently found that she was not. Judicial review proceedings were instituted as a result and permission was granted on the papers in October 2017. Since numerous other cases raised the same or similar points of law, K’s case became the lead case and the other claims were stayed behind the present matter. Clarification was provided by the law to children born as a result of In Vitro Fertilisation (IVF) and other forms of assisted conception licensed under the Human Fertilisation and Embryology Act 1990 and section 50(9A) was further amended in 2009 to take account of the Human Fertilisation and Embryology Act 2008.

The Administrative Court

Helen Mountfield QC held that the scheme in section 50(9A) of the 1981 Act – which for the purposes of establishing nationality deemed a child’s father to be the man the mother was married to at the time of the birth rather than the child’s biological father – was incompatible with article 14 read of the ECHR read with article 8. The court made a declaration of incompatibility using its powers under section 4 of the Human Rights Act 1998. It was reasonable for legislation to prescribe who was deemed to be a child’s father. However, the law did not achieve a fair balance because it stopped the child from acquiring the biological father’s nationality as of right on proof of paternity and it only conferred a right to ask the Home Secretary exercise a discretion to grant such nationality.

(i) British Nationality by Birth 

The court began its judgment with Lord Denning’s analysis of the law in Re M (An Infant) [1955] 2 QB 479 where he had opined that “the law of England has from time immemorial looked upon a bastard as the child of nobody, that is to say, the child of nobody except its mother”.

Changing social attitudes and scientific advancement led to statutory changes not to penalise a child for the accident of birth by way of section 1 of the Family Law Reform Act 1987 but the general rule of social policy did not extend to British nationality law because the 1987 Act was limited only to England and Wales. Prior to the enactment of section 50(9A) of the 1981 Act it was the case that although a person could acquire British nationality by descent from a parent was himself or herself a British citizen, a father who was not married to a child’s mother at the time of her birth did not count as a parent at common law and so could not pass on his British nationality to his natural child. In Crew [1982] Imm AR 94, the Court of Appeal followed Lord Denning’s approach (by which it was bound) and held that for the purposes of section 2 of the Immigration Act 1971, the father of an illegitimate child did not count as a child’s parent for the purposes of conferring nationality by descent.

The parties agreed that children who have a natural father who cannot be not recognised as their father by virtue of the provisions of section 50(9A) have no right to British citizenship, even upon providing satisfactory proof of paternity. However, under section 3 of the 1981 Act a person who has not acquired British nationality as of right by birth may apply to register for it at a later date and the Home Secretary “may if he thinks fit, cause him to be registered as such a citizen”.

(ii) Article 14 and Discrimination

Observably, the ECHR, pursuant to article 14, require contracting states to secure equal enjoyment of rights without discrimination on the grounds of “birth … or other status”. Marckx v Belgium (1979) 2 EHRR 330 clearly established that birth outside wedlock is a “status” for the purpose of article 14. But the government maintained that article 14 was not engaged because there was no discrimination as between children depending on whether their mother was married or unmarried. The government did not accept that being treated differently as the child of a woman who was married to a man other than one’s biological father at the time of one’s birth amounted to discrimination on grounds of “birth”.

Rejecting the submission, Helen Mountfield QC found it highly probable that when article 14 was drafted the principal meaning of discrimination on grounds of “birth” was discrimination between those born inside and outside marriage. Reminding us that “the Convention is a living instrument”, she said that:

66. … I see no reason of principle why, for the purposes of a provision intended to secure equal enjoyment of other Convention rights, and to require justification for unequal enjoyment, the characteristic of ‘birth’ should not be wide enough to include other unchosen circumstances of one’s birth (such as whether or not one is a child of IVF; being born to a mother not free to marry someone else). Treating a person differently, in the enjoyment of other Convention rights, by virtue of such a characteristic appears obviously to be a matter which calls for justification.

It was clear to the court that being born to a mother married to someone other than one’s biological father was an “other status” for the purposes of article 14 and as demonstrated by the case of Mathieson [2015] UKSC 47 courts took a broad approach to recognising “other status” as a reflection of each person’s fundamental equality in dignity and rights. Importantly, a child had no choice over whether or to whom their parent was married at the time of their birth. Some statuses may be chosen but a “core” status usually includes “personal characteristics which the complainant did not choose and either cannot or should not be expected to change”. Therefore, following Lady Hale’s approach in AL (Serbia) [2008] UKHL 42 the absence of choice was a significant factor in assessing if there was a “core” status in relation to which the right to equal enjoyment of Convention rights would be particularly strongly protected.

(iii) Article 14: Whether Engaged?

Key in the present context was the point of legal principle that the Equality Act 2010 implies that there must be a detriment in order for the domestic concept of discrimination to be engaged. By contrast, the issue under article 14 of the ECHR is only whether there has been a failure to “secure” equal treatment of people who are in otherwise analogous circumstances, either by failing to treat like cases alike or by failing to treat different cases differently. The Supreme Court confirmed in Steinfeld and Keidan [2018] UKSC 32 that only a difference in treatment needs to be established to engage article 14 and not “less favourable” treatment.

In these proceedings there was a contrast between the way the law treated a child whose mother is not married to anyone at the time of its birth, who is deemed to be the child of the biological father under section 50(9A)(c) of the 1981 Act (provided the fact of paternity is proved), and a child whose mother is married at the time of its birth, who is deemed to be the child of the husband, even if it is subsequently proved that the child is not his child. Therefore, the law did not secure equal enjoyment of the right to acquire one’s natural father’s citizenship to children whose mothers were married and unmarried at the time of their birth. Therefore, unless it was justified, there was a breach of article 14 and Helen Mountfield QC reasoned that:

74. In any event, in the present case, there is a clear detriment to K in not being able to acquire her birth father’s nationality as of right. It deprives her of a link to her father and his country, and it imposes specific practical difficulties upon her. Unless and until the Secretary of State exercises a discretion in her favour under section 3(1) of the 1981 Act, if she travels abroad – presumably on a Pakistani passport – she will be subject to immigration control on her return home.

Next, the court dealt with the issues of justification and the structured approach that is found in a line of Supreme Court authorities.

(vi) Justification

Following the approach in Quila [2011] UKSC 45, Lord Kerr reiterated at para 41 in Steinfeld the four-stage test designed to establish whether an interference with a qualified Convention right can be justified: (a) is the legislative objective – legitimate aim – sufficiently important to justify limiting a fundamental right, (b) are the measures which have been designed to meet it rationally connected to it, (c) are they no more than are necessary to accomplish it, and (d) do they strike a fair balance between the rights of the individual and the interests of the community?

Helen Mountfield QC accepted that ensuring that there were only two parents from whom one could obtain nationality was a reasonable aim of social policy, and the legislature was entitled to create provisions to ensure certainty as to who those people were. She therefore found it reasonable and proportionate for legislation to dictate who was deemed to be a child’s father. She further accepted that it is also a legitimate aim of social policy that there should be reasonable legal certainty and clarity as to whom the law treats as parents. The provisions of section 50(9) and 50(9A) were rationally connected to those goals. Yet they were not the least restrictive means of achieving them. The big problem was that they prevented certain children (but not all) from the benefit of being able to acquire their biological father’s nationality simply because of an unchosen characteristic, i.e. having been born to a mother who was, at the time of their birth, married to a man other than their biological father. On the other hand, those children whose mothers were married to their biological fathers at the time of their birth, or who were not married at all, did not suffer this problem.

The court made some telling points in its analysis. Upon provision of satisfactory proof of paternity to have her natural father recognised as such of right, a child whose mother was not married to another man at the time of her birth would have the right to citizenship. It made no sense to the court why a child whose mother applies, on her behalf, on the basis of the same proof of paternity, should not have the same right to have that man recognised as her father; merely on the basis that as a matter of fact her mother was married to someone else at the relevant time (something over which the child had no control, and which may mean nothing to her).

The child whose mother was married to someone other than her biological father at the time of her birth has no right to her father’s nationality and she must instead rely on the executive’s discretion to decide whether to confer it upon her. Various circumstances arise whereby a person may wish to displace the presumption that a mother’s husband is a child’s father.

Significantly, in Mizzi v Malta [2008] 46 EHRR 27 a woman’s husband sought to expunge his name from official registers as being the father of a child who was not, in reality, his biological child. Both parties invoked Mizzi in aid of their case.

In the claimant’s view, Mizzi demonstrated that to comply with article 8, the requirement that a legal presumption or designation should be capable of being displaced by proof. The approach was said to support the submission that the provisions as to who is deemed to be a father by section 50(9A)(a) of the 1981 Act should be capable of being displaced, as of right, by proof that another man is actually the child’s father. In the executive’s view, it was not possible to directly read across between the facts of Mizzi and the facts of the present case. Thus the government claimed that along with other cases Mizzi showed that all that was required under article 8 was a procedure by which a legal presumption of this type could be rebutted in an appropriate case, and the provisions of section 3(1) of the 1981 Act provided such a procedure. Helen Mountfield QC held:

87. In my judgment, however, the current procedure in section 3 of the 1981 Act is insufficient to fill this gap, because it does not permit a child who can prove that the presumed fact of paternity in section 50(9A)(a) of the Act is false to displace it as of right: it confers only a right to ask the Secretary of State to exercise a discretion to grant such nationality. In my judgment, in this respect, the current law does not achieve a fair balance between the interests of the child wishing to acquire his or her father’s nationality and the Defendant’s identified social policy goals.

88. A child whose mother is not married to someone else at the time of their birth, and who is not a child of an IVF arrangement governed by sections 50(9A) (b) or (ba) of the 1981 Act, may acquire their British father’s nationality through that father as of right; whatever the child’s character, or the father’s character or associations may be, and however committed – or otherwise – the relationship which resulted in the child’s conception. Nothing other than proof of the fact of paternity is relevant.

89. By contrast, a child whose mother is married to someone else at the time of their birth may only apply to the Defendant to exercise a discretion to confer British nationality on them, which discretion can take into account any other considerations the Secretary of State rationally considers to be relevant. If the Secretary of State considers either biological father or child, or indeed associates of such persons, to be of bad character, she could – on application under section 3(1) of the 1981 Act – refuse to grant the child British citizenship, even if satisfactory proof of paternity has been provided.

The court rejected the proposition that the outcome was “a good thing” where for instance if the child of a married mother was conceived because of a rape and real distress or difficulty were caused by treating the biological father as the father under the law and maintaining a discretion to refuse to confer the natural father’s nationality on the child of the rape was sensible. The point was wholly unpersuasive and instead Helen Mountfield QC held that an application for an exercise of discretion, and consideration of wider social factors by the executive in contemplating how that discretion should be exercised is necessarily a more complex, and costly, process than the mere process of considering whether satisfactory proof of paternity has been provided. Overall, concluding on the discrimination issue she held that:

93. In my judgment, this distinction between two different classes of children discriminates between them on grounds of status, because it fails to secure them equal enjoyment of their right to acquire their biological father’s nationality, irrespective of whether their mother was married to a man other than their biological father at the relevant time. This distinction is not rationally explained or proportionately justified in the case of a biological child who was not born through licensed assisted conception under the 1990 or 2008 Acts.

The court found that the scheme of section 50(9A) as it was currently read and applied breached K’s right under article 14 read with article 8 of the ECHR to enjoy equal access to the ability to acquire her biological father SK’s nationality which she would enjoy if her mother MT had not been married to a man other than her biological father at the time of her birth.

(v) Remedy

The natural reading of statute – and indeed the only reading – was to deny K British citizenship. The court rejected the proposition that section 3 of the 1998 Act allowed it to “read down” the terms of section 50(9A) in order to ensure compliance and compatibility with article 14 of the ECHR read with article 8.

The language of section 50(9A)(c) created a clear order of priority whereby a biological father could only be treated as a father under that provision “where none of the paragraphs (a) to (ba) applies”. As held in Re S (A Care Plan) [2002] UKHL 10, ignoring those statutory words would “cross the boundary between interpretation and amendment” and it was not possible to erase them without doing violence to the 1981 Act’s structure and the legislature’s intention.

The operation of statute had therefore precluded HMPO from treating the claimant as her natural father’s daughter. A declaration of incompatibility was appropriate and the court exercised its discretion under section 4(2) of the 1998 Act and made a declaration that the provision preventing a child, except a child born under a licensed IVF arrangement mentioned in sections 50(9A)(b) or (ba), as being recognised as the child of his or her real biological father for the purposes of acquiring his nationality (if the child’s mother was married to another man at the time of the child’s birth) was incompatible with article 14 of the ECHR read with article 8.

(vi) Totally Without Merit

The court had been invited to refuse permission for judicial review and certify the case as totally without merit. Permission had been granted on the papers and the case was a lead case. The totally without merit provisions worked as a filter to save court time in connection to cases which were obviously hopeless or abusive. Helen Mountfield QC added in clarification that it was an abuse of process to assert that a case was totally without merit where it was apparent that a point was arguable and she stated that the government should not as a matter of routine invite judges to certify cases as being totally without merit. Pleading the point as a matter of course devalued the concept. Hopefully the Home Office and their lawyers in the Government Legal Department will take these helpful points on board and stop behaving unreasonably in judicial review proceedings.

Comment

Declarations of incompatibility are an integral part of UK constitutional law and in the present case, the court made a declaration of incompatibility despite being asked to do so. Memorably, in Johnson [2016] UKSC 56, whereby the conferral of citizenship falls within the ambit of article 8 of the ECHR, the Supreme Court had done the same in relation to paragraph 70 of Schedule 9 to the Immigration Act 2014 although it was not necessary to do so.

Of course, in McLaughlin (Northern Ireland) [2018] UKSC 48 the court has very recently made a declaration that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with article 14 of the ECHR read with article 8. A declaration of incompatibility merely expresses the court’s conclusion regarding whether a particular piece of legislation, as enacted, cannot be considered compatible with a Convention right. Indeed, Lord Kerr explained in Nicklinson [2014] UKSC 38 that the mechanism of a declaration of incompatibility allows the judiciary to inform Parliament “in other words … ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Moreover, in Steinfeld Lord Kerr found no reason why the courts should feel remotely reticent about the making of a declaration of incompatibility. As his Lordship held, the courts clearly possess the power to do so and therefore in an appropriate case “it would be wrong not to have recourse to that power.” With that in mind, it is not all surprising that Helen Mountfield QC did not hesitate to hold that section 50(9A) of the 1981 Act is incompatible with article 14 of the ECHR read with article 8.

The Home Office has recently revoked the passport and denied travel to the UK to six-year old Mohamed Barrak Diallo Bangoura following a holiday in Belgium whose case is yet another grim reminder of the terrible way in which children are treated by the authorities. He was born in the UK and lived here all his life but he is presently separated from his mother. Ultimately, an estimated 120,000 children are suffering as a consequence of the hostile environment policies unleashed by Theresa May and campaigners are urging the government to revise its heinous child citizenship and fees policies which put profit before everything else and trample on children’s rights.