R(Eric Erron Johnson) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 17 July 2014 |
| Neutral Citation | [2014] EWHC 2386 (Admin) |
| Date | 17 July 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9792/2012 |
[2014] EWHC 2386 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Dingemans
Case No: CO/9792/2012
Hugh Southey QC and Paul Turner (instructed by Barnes Harrild & Dyer solicitors) for the Claimant
Tim Eicke QC (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 8 July 2014 and 9 July 2014
This case raises an issue about whether the Claimant's proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence, involves a violation of article 14 in conjunction with article 8 of the European Convention on Human Rights ("ECHR"), contrary to the Human Rights Act 1998 ("the Human Rights Act"). The discrimination is said to arise because the Claimant did not become a British citizen when he was born in Jamaica as the illegitimate child of a British citizen, whereas he would have been a British citizen if he had been a legitimate child, and a British citizen cannot be deported.
Background
The Claimant's father was born in London on 27 February 1962. At that time the Claimant's father was a citizen of the United Kingdom and the Colonies pursuant to the British Nationality Act 1948 ("the 1948 Act"). On 1 January 1983 the Claimant's father became a British citizen pursuant to the provisions of the British Nationality Act 1981 ("the 1981 Act").
The Claimant's father went to Jamaica and had a relationship with the Claimant's natural mother. They did not marry. The Claimant was born on 18 March 1985 in Jamaica. If the Claimant's father had been married to his mother, the Claimant would have become a British citizen. As it was he became a citizen of Jamaica.
On 3 March 1991 the Claimant, then aged 4 years and registered as a Jamaican national, came to the United Kingdom with his father. The Claimant was granted leave to enter for a period of 6 months. He lived with his father, and his father's new wife, and their children who are the Claimant's half brothers. On 13 March 1992 the Claimant was granted Indefinite Leave to Remain ("ILR"), and this was stamped in his passport.
The Claimant has lived in the United Kingdom ever since, and he is now aged 29 years. In 1994, when the Claimant was aged 9 years, he went to Jamaica on holiday and saw his mother. She was unable to provide him with a contact address or telephone number. This was the last contact that he had with her.
The Claimant left home in 2000 when he was aged 15 years. Neither the Claimant, nor his father, made an application for him to acquire British citizenship before he was aged 18 years. The documents before me show that the Claimant could have applied for registration as a British citizen up until the age of 18 years and that, under the applicable policies at that time, the Claimant would probably have been granted British citizenship.
The Claimant now has a very serious criminal record, and has been convicted of offences from 2003 (the year in which he became 18) until 2008. The Claimant was a supplier of class A drugs for commercial gain. The Claimant also killed a man by hitting him with a piece of wood, and then stabbing him. The Claimant was convicted of manslaughter after a trial in which he falsely claimed to have acted in self defence. On 11 August 2008 the Claimant was sentenced to 9 years' imprisonment for manslaughter.
On 22 March 2011 the Defendant served notice that the Claimant was subject to automatic deportation pursuant to the provisions of section 32 of the UK Borders Act 2007. This was because he was a foreign national, and had been sentenced to 9 years' imprisonment.
On 18 August 2011 the Defendant signed a deportation order for the Claimant, and on 8 September 2011 the Claimant appealed against the making of the order.
On 4 November 2011 the First Tier Tribunal (Immigration and Asylum Chamber) ("the First Tier Tribunal") allowed the Claimant's appeal on the basis that he was British. However on 14 November 2011 the First Tier Tribunal sent out a note stating that it had been mistaken in holding that the Claimant was a British citizen, and it appears that the original decision of the First Tier Tribunal was set aside.
There were then various adjourned hearings before a further hearing in the First Tier Tribunal took place on 27 July 2012. At that hearing the First Tier Tribunal found that the Claimant had a private life which engaged article 8 of the ECHR in the United Kingdom but that deportation was proportionate and lawful. However the First Tier Tribunal remitted the appeal to the Defendant for consideration of the issue of discrimination against the Claimant contrary to articles 8 and 14 of the ECHR. This was because the issue about the fact that the Claimant would not have been a foreign national if he had been legitimate had been raised.
The Defendant reconsidered the Claimant's case on 23 November 2012. The Defendant maintained the decision to deport the Claimant to Jamaica, and certified his human rights claim as being clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").
On 14 May 2014 the Immigration Act 2014 ("the 2014 Act") received Royal Assent. Section 65 of the 2014 Act provides that a person in the Claimant's position will be entitled to be registered as a British national if provisions as to character are satisfied. Section 65 will, pursuant to section 75(3) of the 2014 Act, be brought into force "on such day as the Secretary of State may by order appoint". It has not yet been brought into force, and the Claimant will not be able to satisfy the character provisions when it comes into force.
The proceedings
The removal directions set for 16 September 2012 were challenged in pre-action correspondence and, after proceedings had been issued and an application for a stay had been made, on 14 September 2012 Nicol J. granted a stay of the removal directions. On 19 November 2012 the Defendant accepted that the proposed removal on 16 September 2012 was unlawful.
As noted above on 23 November 2012 the Defendant reconsidered the Claimant's case pursuant to the remission from the First Tier Tribunal and refused the application and certified that it was "clearly unfounded" pursuant to section 94(2) of the 2002 Act.
On 19 December 2012 the Claimant applied to amend his grounds to challenge the decision dated 23 November 2012, and permission to make the amendment was granted on 13 February 2013. Summary grounds of defence were served on 18 March 2013.
On 6 June 2013 Mostyn J. granted permission to apply for judicial review on the ground " whether articles 2 and 3 of the Nationality, Immigration and Asylum Act 2002 (Commencement Number 11) Order 2006 SI 2006 No. 1498 are compatible with article 14" of the ECHR.
Following correspondence sent to Mostyn J. following the grant of permission on 25 June 2013 Mostyn J. confirmed the grant of permission and the reasons for the grant of permission stating " Arguably, in choosing 2006 the [Defendant's] decision discriminates against the Claimant on the grounds of age and/or status (i.e. (il)legitimacy)"
On 23 July 2013 the Defendant filed detailed grounds of defence. On 19 June 2014 Hayden J. granted the Claimant permission to amend his grounds for judicial review.
The issues
I am grateful to Mr Southey QC and Mr Turner on behalf of the Claimant, and to Mr Eicke QC on behalf of the Defendant, for their submissions. Following refinements in the course of legal submissions it now appears that the following matters are in issue:
20.1 whether there has been a violation of article 14 in conjunction with article 8 of the ECHR, either because the Claimant was treated differently on the ground that he was illegitimate, or because he was treated differently on the ground that he had a different immigration status;
20.2 if so, whether: (a) the provisions of the 2002 Act can be interpreted to ensure conformity with the Human Rights Act; (b) the 2002 Act commencement order should be quashed; and (c) whether any other relief ought to be granted;
20.3 whether the decision certifying the Claimant's human rights claims as "clearly unfounded" should be quashed.
Relevant statutory provisions
The 1981 Act provides at section 2(1) that a person born outside the United Kingdom shall be a British citizen " if at the time of the birth his father or mother (a) is a British citizen otherwise than by descent…". Section 50(9) of the 1981 Act provided that " the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him". The effect of these two provisions meant that the Claimant was not a British citizen because he was not a legitimate child.
The Claimant could have, before he was aged 18 years, applied for registration as a British citizen under section 3(1) of the 1981 Act. The relevant policy then operated by the Defendant provided that if the Claimant was a child living in the United Kingdom, his father was a British citizen and the Defendant was satisfied about paternity and the child was, if 16 or over, of good character, he would be made a British citizen. Provision was made for both parents to consent to that process, but the provision for parental consent of both parents might be waived if there had been no contact for many years.
Section 9 of the 2002 Act was brought into...
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