Background and history of the proceedings
The Home Secretary appealed a decision made by Dingemans J regarding a deportation order against the respondent, Eric Johnson. Dingemans J found that the refusal of the Home Secretary to revoke the deportation order violated Johnson’s rights under Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) of the ECHR. By this appeal the Home Secretary sought to set aside the decision of Dingemans J by arguing that the ECHR was not brought into domestic law until the HRA 1998 came into force in October 2000, long after the respondent’s birth.
The respondent was a convicted foreign offender. Eric Johnson was born an illegitimate son to a British father and a foreign mother in 1985. Under the law of the time he did not become a British national at birth because he was illegitimate and it was his father and not his mother who was British.
Johnson came to live in the UK in 1991 but did not apply for nationality. He subsequently committed serious offences, which meant that the Home Secretary was obliged to order him to be deported under s.32 Borders Act 2007.
There were two key questions considered by Arden LJ:
1. Was there a violation of Articles 14 and 8 by reason of the denial of nationality at birth?
Arden LJ considered the cases of Genovese v Malta (2014) and K & W v Netherlands (1985). The former of these decided that, even in the absence of a relevant family life, the withholding of citizenship engaged Art. 8 because citizenship had an impact on family life. Also where a state offered its nationality it could not do so on a discriminatory basis without justification. Here the respondent argued that the blanket denial of the acquisition of nationality by descent on illegitimate children was unjustified discrimination and against Art.14.
The latter case was decided by the European Commission on Human Rights. It was inconsistent with the conclusion of Genovese. It said that the ECHR does not confer any right to acquire any particular nationality.
2. Does the HRA apply to a violation originating in a pre-HRA event?
The key issue here was not a question of the retrospective effect of the HRA, but whether the violation (which would have occurred before the HRA came into effect) continued or occurred after the ECHR was brought into force. That is was the decision to refuse citizenship to the illegitimate child at birth a one off decision, or was it a continuing decision, which lasted as long as they did not grant citizenship?
The test for this comes from the case of Janowiec v Russia App in the Strasbourg Court. In this case it was held that there had to be some relevant act or omission after the crucial date and also that except in extraordinary cases the maximum period of time between the violation and the crucial date was ten years.
1. Arden LJ chose to go with the decision in K & W v Netherlands(1985), on the basis that she was trying to understand what decision Strasbourg would have made and although this was a decision from the European Commission on Human Rights she stated that ‘there is no material to suggest that the Strasbourg Court would have taken a different view from the Commission.
The respondent had also argued that a legitimate child would not lose citizenship after committing offences and so an illegitimate child should not do so either. However Arden LJ’s response on this was very clear, stating ‘I do not accept that it is appropriate to compare a person who already has nationality with a person who seeks to acquire particular nationality.’
2. Although the appeal had already been successful based upon her answer to (1) Arden LJ went on to consider (2). Again she found against the respondent, stating three main reasons why she did not follow the approach in Janowiec.
Firstly there was no separate and independent obligation arising out of the pre-Act violation as there is when Art.2 (right to life) imposes an obligation to hold an inquiry into a suspicious death.
Secondly the time period of ten years had been exceeded in this case.
Thirdly and perhaps most significantly Arden LJ decided that the denial of nationality is ‘by its nature, a once and for all event.’ The respondent never became a British national and so the violation began and ended upon his birth.