The Supreme Court has unanimously allowed the appeal in a case that considered whether it was contrary to the European Convention on Human Rights (‘ the convention’ ) to deport the appellant on the ground that he was a ‘foreign criminal’. The appellant was the illegitimate child of a British man, born before the legal change which saw automatic citizenship granted to all children of British citizens.
The appellant was born in Jamaica, in 1985, and moved to the UK aged four. His father was a British citizen, but Mr Johnson did not acquire British citizen at birth because the nationality laws in place at the time did not bestow citizenship rights where a child’s parents were unmarried and the mother was not a British citizen.
Mr Johnson was granted indefinite leave to remain in the UK in 1992. While changes in nationality law, in 2006, entitled illegitimate children to British citizenship, this did not operate retrospectively. It had been possible for Mr Johnson to apply for citizenship where paternity could be proved and good character could be demonstrated, but no application was ever made.
It was held, unanimously, that the appellant’s liability to deportation as a result of his illegitimacy was unlawful discrimination in breach of the convention
Mr Johnson was convicted of manslaughter, in 2008, and sentenced to nine years’ imprisonment. The Home Secretary responded to this conviction by issuing a deportation order, in 2011, on the ground that he was liable to automatic deportation as a ‘foreign criminal’ under UK Border Act 2007 s32(5).
The appellant argued that his deportation would be contrary to his right to family life under article 8 of the convention and would amount to unlawful discrimination under article 14, as he would not have been liable to deportation if he had not been illegitimate. He also challenged the Home Secretary’s finding that his human rights claim was clearly unfounded, as this removed his right of appeal in the UK against her decision.
Lady Hale gave the only substantive judgment, with which the other justices agreed. It was held, unanimously, that the appellant’s liability to deportation as a result of his illegitimacy was unlawful discrimination in breach of the convention.
The Supreme Court quashed the Home Secretary’s certification that his claim was unfounded and made a declaration under Human Rights Act 1998 s4 that the ‘good character’ citizenship requirement was contrary to the convention. The court found that denial of citizenship could fall within the ambit of article 8, where it had an important effect on a person’s identity. This would trigger article 14. Birth outside wedlock was a ‘status’ for the purposes of article 14, and there was no justification for treating Mr Johnson differently due to the circumstances of his birth.