21 Mar 2017, 33 mins ago

In R (on the application of Johnson) v Secretary of State for the Home Department [2016] EWCA Civ 22 (22 January 2016), the Court of Appeal (‘the Court’) rejected Mr Johnson’s submission that his denial of British nationality at birth due to the rules in place at the time amounted to a breach of his Article 14 and Article 8 rights under the European Convention on Human Rights (‘Convention Rights’). Article 14 prohibits discrimination in the enjoyment of Convention rights and Article 8 establishes the right to respect for family and private life. Mr Johnson argued that he had been discriminated against because at the time of his birth British nationality could only be passed on to an illegitimate child by a mother, not by a father.  His claim had succeeded in the High Court.

The Court held that the High Court was wrong to accept that the Secretary of State’s refusal to revoke a deportation order made against Mr Johnson violated his Convention rights. The Court found that Mr Johnson’s Convention rights were not protected in domestic law until the Human Rights Act 1998 came into force on 2 October 2000, long after his birth.

The facts

Mr Johnson was born in Jamaica on 18 March 1985. His mother was a Jamaican national and his father was a British national. His parents were not married and at the time of his birth, an illegitimate child could only gain British nationality at birth or by registration as a minor if his mother was a British national (see sections 2(1) and 3(1) of the British Nationality Act 1981 (‘BNA’) read with section 50(9)). Under the BNA, Mr Johnson could not therefore acquire British nationality by descent either at birth or by registration as a minor.

From 1987, the Secretary of State introduced a policy that allowed illegitimate children to be registered as British nationals by virtue of their father’s nationality when certain conditions were met including proof of paternity and good character (‘the 1987 policy’). The 1987 policy became statutory when section 50(9) of the BNA was amended by section 9 of the Nationality, Immigration and Asylum Act (‘the 2002 Act’).

In 1991, Mr Johnson came to live in the UK but never applied for British nationality under the 1987 policy. He was subsequently convicted of committing serious criminal offences, including manslaughter. As he was not a British national, his conviction meant that he was subject to automatic deportation from the UK on completion of his sentence, unless he could show that his Convention Rights were violated.

The proceedings

Mr Johnson commenced proceedings upon the Secretary of State refusing to revoke the deportation order on the grounds that his denial of British nationality at birth meant that his Convention Rights had been violated. Mr Johnson argued that (1) denial of British nationality at birth violated his Convention Rights and (2) that this violation persisted to the making of the deportation order.

The Court stated that the case raised two questions:

1. Whether the denial of British nationality to Mr Johnson at birth gave rise to a violation of his Convention Rights

2. Whether the Human Rights Act applies to violations originating before its coming into force

Whether the denial of British nationality to Mr Johnson’s at birth gave rise to a violation of his Convention Rights.

The Court held that there was no violation of his Convention Rights at birth as he could only acquire nationality thereafter with effect from birth if he could invoke a statutory provision which had a retrospective effect, something the UK was not bound to introduce. Furthermore, after considering the Strasbourg Court’s jurisprudence, the Court held that it was not possible to hold that in 1985 the discriminatory denial of nationality to an illegitimate child at birth violated Mr Johnson’s Convention Rights. The Court highlighted that Mr Johnson could have acquired British nationality under the 1987 policy and that his failure to do so at the time meant that he could not now claim preferential treatment above everyone else applying for British nationality.

Whether the Human Rights Act applies to violations originating before its coming into force.

The Court emphasised that the HRA does not apply retrospectively (see section 22(4) of the HRA). The Court rejected Mr Johnson’s argument that there would not have been a deportation order ‘but for’ the denial of British nationality at birth. In this regard, the Court held that the ‘but for’ test of causation does not reflect Convention case law. The Court highlighted that the cause of the deportation order against Mr Johnson was primarily to do with his conviction. The denial of British nationality at birth was a secondary issue.

The Court of Appeal therefore came to completely the opposite conclusion to the judge at first instance, who had found that the denial of British citizenship at birth was unjustified discrimination contrary to Article 14 read in conjunction with Article 8, and that this was a continuing breach. In contrast to the Court of Appeal, he found that Mr Johnson could only be deported because of this breach, ie because of the continuing effect of the discriminatory denial of British citizenship at birth. As noted, the Court of Appeal preferred to focus upon the reason why the deportation order had been made, rather than the reason why Mr Johnson was liable to deportation in the first place.

The Court of Appeal’s judgment raises difficult questions regarding the retrospective effect of the Human Rights Act and what constitutes a continuing violation of the Convention. It appears from the arguments made before the Court that Mr Johnson’s representatives were contemplating seeking permission to appeal to the Supreme Court should the Court of Appeal reject their arguments, so this decision may not be the last word on this matter.