The Supreme Court has decided that the historic failure of British nationality law to confer automatic citizenship on a child born out of wedlock was discriminatory, it has continuing consequences which breached a person’s human rights in a discriminatory way and that denying such a person British citizenship now is unlawful should they request it. The fact of the person’s later criminal offending was not relevant because the injustice had occurred at birth.

The case is R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56.

The background facts are not unusual. In short, the appellant, Mr Johnson, would have automatically been born British but for the fact his parents were unmarried and it was his father rather than his mother who was British. Had it been his mother who was British, he would have been British from birth. This outdated discrimination between “legitimate” and “bastard” children was at long last ended for children born after 1 July 2006 but this did nothing to assist Mr Johnson. He could potentially have been registered as a British citizen while he was a child but his father had not taken this step on his behalf.

As Lady Hale, giving the judgment of the Court, points out:

The child is not responsible for the marital status of his parents or the date of his birth, yet it is he who suffers the consequences.

It would have been potentially possible for a person in the position of Mr Johnson to register as a British citizen as an adult. However, to do so required him to pass a “good character” test. Mr Johnson had, unfortunately, committed serious criminal offences, culminating in a conviction for manslaughter with an accompanying nine year prison sentence. He therefore could not be registered as British now.

Because of the seriousness of the offending, the Home Office decided to deport Mr Johnson to Jamaica, despite the fact he had lived in the UK since the age of 4 and despite the injustice of his not being granted British citizenship. Not only that, the Home Office also certified Mr Johnson’s claim as “clearly unfounded” meaning that he would be deported first and could only appeal later from abroad.
The judgment of Lady Hale includes an interesting potted history of the gradual removal of discrimination between the children of married and unmarried parents at paragraphs 14 to 17 and then of the human right to the possession of nationality at paragraphs 24 to 27. On the latter issue she concludes that:

It is clear, therefore, that 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.

Lady Hale gives the Court of Appeal’s conclusion that the denial of citizenship was a “one off” event with no continuing effect extremely short shrift (paragraph 28). Indeed, she barely expresses reasons for disagreeing at all, the point is considered so self evident.

The Article 14 issue also receives brisk if slightly wordier treatment. Birth outside wedlock is a “status” for the purposes of Article 14, there was a clear difference in treatment on the basis of this status, there would need to be “very weighty reasons” to provide justification and no reasons at all had been suggested. But, what action or inaction had to be justified? This had “bedevilled” the litigation but was actually straightforward (paragraph 33):

…in this case what needs to be justified is the current liability of the appellant, and others whose parents were not married to one another when they were born or at any time thereafter, to be deported when they would not be so liable had their parents been married to one another at any time after their birth. 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.

In conclusion, Lady Hale quashes the clearly unfounded certificate which was the subject of the case and finds that it was inevitable that the underlying immigration appeal would be allowed.

Counsel for the appellant, Hugh Southey QC, had argued that the provision ending discrimination only for children born after 1 July 2006 was incompatible with the Human Rights Act 1998 because it was not retrospective in effect. The Supreme Court was not willing to go so far as that but did declare as incompatible the insertion of the good character requirement into adult British citizenship registration applications for those affected by historic discrimination.

The effect of this declaration was not at first blush entirely clear to me, I confess, and I would be interested in reader comments. This is not a formal Declaration of Incompatibility under section 4 of the Human Rights Act 1998; the provision in question is a statutory instrument, also known as secondary legislation, so it can be declared unlawful and quashed, unlike Acts of Parliament. I had previously thought that it was not possible to quash only part of a statutory instrument: see Stanley Burton LJ in  EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630 at paragraph 83:

I do not think the Court should or can edit the Order by blue-pencilling the offences the inclusion of which is objectionable. To do so would be to assume and to exercise the legislative power that Parliament has conferred on the Secretary of State. It follows that in my judgment the 2004 Order is ultra vires and unlawful.

That was the Court of Appeal, though. The Supreme Court makes the law and while some editing of the secondary legislation is needed it is not of a kind of picking and choosing certain criminal offences as in the EN (Serbia) case. My take is that that effect of the declaration is exactly as it says, which is to disapply the good character test in all relevant applications.