R (Johnson) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Lindblom,Lord Justice Laws |
| Judgment Date | 26 January 2016 |
| Neutral Citation | [2016] EWCA Civ 22 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 2016 |
| Docket Number | Case No: C4/2014/2783 |
[2016] EWCA Civ 22
IN THE COURT OF APPEAL
(CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Dingemans
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lady Justice Arden
and
Lord Justice Lindblom
Case No: C4/2014/2783
Mr Tim Eicke QC and Mr Edward Brown (instructed by the Government Legal Department) for the Appellant
Mr Hugh Southey QC and Mr Paul Turner (instructed by Barnes, Harrild and Dyer) for the Respondent
Hearing date: 17 November 2015
ISSUE: EFFECT OF DISCRIMINATORY DENIAL OF BRITISH NATIONALITY BEFORE THE COMMENCEMENT OF THE HUMAN RIGHTS ACT 1998 ON A DEPORTATION ORDER AGAINST FOREIGN OFFENDER
The Secretary of State for the Home Department has made a deportation order against the respondent, Mr Eric Erron Johnson, who is a foreign convicted offender. Mr Johnson was born the illegitimate son of a British national father. Under the legislation then in force, he did not acquire British nationality at birth because only his father was a British national and not his mother. He would have acquired British nationality if his parents had been married, which they never were. Based on this discrimination, Mr Johnson successfully argued before Dingemans J that the refusal of the Secretary of State to revoke the deportation order made against him violated his rights guaranteed by Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) of the European Convention on Human Rights ("the Convention"). The UK was one of the original ten countries which ratified the Convention so that it came into force on 3 September 1953. However, Convention rights were not protected in domestic law until the commencement of the Human Rights Act 1998 ("the HRA"), which came into force on 2 October 2000, long after Mr Johnson's birth. By this appeal the Secretary of State seeks to set aside the Order of Dingemans J. She argues that the relevant act of discrimination occurred before 2 October 2000 and that there was no continuing violation, and that accordingly this court cannot give any relief or remedy based on it.
The full facts are set out in the judgment of Dingemans J. The essential facts are as follows. Mr Johnson was born on 18 March 1985 in Jamaica. His mother was a Jamaican national and his father was a British national. At the time of his birth, an illegitimate child could acquire British nationality at birth or by registration as a minor only if his mother was a British national (see British Nationality Act 1981 ("BNA"), sections 2(1) and 3(1) read with section 50(9), as originally enacted). Mr Johnson therefore could not acquire British nationality by descent either at birth or by registration as a minor. However, the Secretary of State had a policy ("the 1987 policy") in force from about 1987 which the judge found would have enabled him to apply to become a British citizen on proof of paternity, and (if over 16) on proof of good character (see Judgment, para. 47). This policy became statutory when section 50(9) of the BNA was amended by section 9 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") to enable an illegitimate child to be registered as a British national by virtue of his father's nationality if certain requirements as to proof of paternity and good character were met.
Mr Johnson came to live in the UK in 1991, but he has never applied for British nationality. While in the UK, he subsequently committed very serious criminal offences, including the offence of manslaughter. This meant that under section 32 of the Borders Act 2007 the Secretary of State was obliged to order Mr Johnson to be deported from the UK on completion of his sentence unless (among other matters) his Convention rights were violated (Borders Act 2007, section 33).
Mr Johnson resisted that order by claiming that his private family life was engaged by the deportation order and appealing to the First-tier Tribunal ("FTT"). Initially the FTT mistakenly thought that Mr Johnson was a British national. That mistake was corrected and the FTT went on to hold that Mr Johnson's Article 8 right was engaged but not violated. However, it did not decide whether Mr Johnson's Convention rights had been violated by the denial of British nationality at birth. The FTT remitted the case back to the Secretary of State to make a decision on that point. The Secretary of State responded by issuing removal directions, which she could lawfully do only if Mr Johnson was not a British national. Mr Johnson started these judicial review proceedings to challenge that decision. The Secretary of State made a new decision on 23 November 2012 confirming the deportation order. At the same time she exercised her power under section 94(2) of the 2002 Act to certify that Mr Johnson's claim was clearly unfounded. This meant that Mr Johnson could not bring an appeal in the UK from the decision to make a deportation order. Instead, the judicial review proceedings were amended to challenge that decision. Mr Johnson has been held in immigration detention pending the outcome of these proceedings.
Mr Johnson contends that the Secretary of State failed to consider the violation of his rights under Article 14 read with Article 8 arising from the denial of British nationality on birth.
Dingemans J: continuing violation of Mr Johnson's Convention rights from birth to deportation order
The judge agreed that the denial of British nationality at birth amounted to unjustified discrimination contrary to Article 14 of the Convention, read with Article 8. He considered that the violation had continued and was the cause of the deportation order. He therefore held that proceedings could be brought under the HRA even though the denial of nationality at birth had occurred long before the HRA had come into force. However he was not taken to all the relevant case law. On this appeal the Secretary of State particularly relies on the fact that the denial took place before the date on which the HRA came into force.
The judge declined to make a declaration of incompatibility of the relevant legislation with the Convention, or to release Mr Johnson from immigration detention. Mr Johnson cross-appeals from the judge's judgment on these points. He contends that all discriminatory treatment should be eliminated and that the historic injustice which he suffered is sufficient to meet any argument that his Convention right to private life under Article 8 is outweighed by the public interest in immigration control.
MY OVERALL CONCLUSION
In my judgment, for the detailed reasons given below, there was no violation of Mr Johnson's Convention rights under Article 14 read with Article 8 by the denial of British nationality at birth. Even if there had then been a violation of Mr Johnson's Convention rights, it was outside the HRA because it occurred before that Act came into force. If it could be considered to be a continuing violation, then it would not matter that the original violation had occurred before the HRA came into force, but in my judgment it was not a continuing violation for the purposes of Strasbourg jurisprudence.
Accordingly I would hold that the decision of the judge should be set aside. The cross-appeal should also be dismissed. No order should be made remitting the matter to the FTT as there is no historic injustice. The decision of the Secretary of State dated 23 November 2012 should therefore stand.
TWO QUESTIONS: (1) VIOLATION OF CONVENTION RIGHTS? AND (2) APPLICATION OF THE HRA?
To resolve the Secretary of State's appeal, it is necessary to answer the following questions:
(1) was there a violation of Article 14 read with Article 8 by reason of the denial of nationality at birth, and if so what was the state's obligation arising on that violation?
(2) does the HRA apply to a violation originating in a pre- HRA event?
I shall now take those Questions in order, and then turn to the outstanding issue on Mr Johnson's cross-appeal, that of historic injustice.
QUESTION (1): WAS THERE A VIOLATION OF ARTICLE 14 READ WITH ARTICLE 8 BECAUSE MR JOHNSON WAS DENIED BRITISH NATIONALITY AT BIRTH, AND IF SO WHAT WAS THE UK'S OBLIGATION ARISING ON THAT VIOLATION?
Did the UK violate the Convention when it denied Mr Johnson British nationality at birth in circumstances where a legitimate child would have acquired it? Mr Tim Eicke QC, for the Secretary of State, submits that, at the date of Mr Johnson's birth, Convention case law did not treat the discriminatory denial of nationality as a violation of the Convention. This was a later interpretation of the Convention by the Strasbourg Court: Genovese v Malta (2014) 58 EHRR 25, which was decided in 2011. This case decided that, even in the absence of a relevant family life, the withholding of citizenship engaged Article 8 because citizenship had an impact on the private life of an individual. Moreover, although the Convention did not confer a right to acquire a particular nationality, if a state offered its nationality it could not do so on a discriminatory basis without justification. Where it imposed a blanket denial of the acquisition of nationality by descent on illegitimate children of that state's national fathers, there was unjustified discrimination contrary to Article 14.
Mr Eicke submits that, by the time Genovese was decided, the 1987 policy of the Secretary of State was in place...
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