R K, A Child, by her litigation friend MT v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Helen Mountfield |
| Judgment Date | 18 July 2018 |
| Neutral Citation | [2018] EWHC 1834 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3900/2017 |
| Date | 18 July 2018 |
[2018] EWHC 1834 (Admin)
Helen Mountfield QC
(Sitting as a Deputy High Court Judge)
Case No: CO/3900/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alex Burrett (instructed by Law Lane Solicitors) for the Claimant
Mr Robin Tam QC and Mr John-Paul Waite (instructed by the Government Legal Department) for the Defendant
Hearing date: 22 nd March 2018
Judgment Approved
Helen Mountfield QC:
Introduction
It is said to be a wise child who knows his own father. It might be thought, having read the facts of this case, that it is an even wiser child who knows who is deemed to be her father for the purposes of the British Nationality Act 1981 as amended (“the BNA 1981”). But, as the facts of this case also show, this can be an important question, in particular, for a child who seeks to establish their entitlement to British nationality through her father, by virtue of section 1 of that Act.
Section 1(1) of the BNA 1981 provided at the relevant time that a person born in the United Kingdom or a qualifying territory was automatically a British citizen at birth if, at the time of the birth, his father or mother was a British citizen or settled in the United Kingdom or in that territory.
However, it is only if the Secretary of State for the Home Department is satisfied that the person deemed to be a child's father for the purposes of the 1981 Act is British that a child can claim British nationality through him. The issue in this case is whether, for the purposes of the BNA 1981, the Claimant, a four year old girl born in Britain, can be treated as the child of her (British) biological father, who is also the man named on her birth certificate as her father, or whether the legislation deems a different man, who is Pakistani, and to whom the Claimant's mother was married at the time of her birth, to be her father. The issue arose when Her Majesty's Passport Office (“HMPO”) wrote to the Claimant on 12 June 2017 revoking her British passport on the basis that it had been issued on the mistaken basis that she was a British citizen. That is the decision under review in this case.
The Claimant submits that even though her non-British mother (who did not, at the time of her birth, have settled status in the UK) was married to another non-British national at the time of the Claimant's birth, she can and should be treated as being able to obtain British nationality through the British man who is her actual biological father. The Secretary of State submits that the only and obvious reading of the legislation is that a child in the Claimant's situation the non-British husband of her non-British mother is deemed, by operation of law, to be the Claimant's father. This turns on the correct construction of section 50(9A) of the 1981 Act which provided, at the relevant time:
“For the purposes of this Act, a child's father is –
(a) the husband, at the time of the child's birth, of the woman who gives birth to the child;” or
(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or
(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or
(c) where none of the paragraphs (a) to (ba) applies, a person who satisfies prescribed requirements as to paternity.”
The prescribed requirements as to proving paternity are set out in the British Nationality (Proof of Paternity) Regulations 2006. The regulations stated, at the relevant time, that proof of paternity could be provided by the person being named as the father of the child in a birth certificate issued within one year of the child's birth (which – in the case of a child born to a woman who is not married to the father, requires the mother's consent), or by other proof which satisfies the Secretary of State including, but not limited to, a DNA test or a court order.
In the present case, the Claimant's biological father is named on her birth certificate, and so – if there were no other person to whom subsections 50(9A)(a) or (b) applied – he would be deemed to be her father by virtue of section 50(9A)(c). However, because the Claimant's mother was married to someone else at the time of her birth, section 50(9A)(a) applies to deem her mother's husband at the time of her birth to be the Claimant's father, unless the words “where none of the paragraphs (a) to (ba) apply” can in some way be ignored, or read-down, or interpreted as a mere rebuttable presumption as to paternity, which can be displaced by evidence that there is another ‘real’ father.
Mr Burrett argues on behalf of the Claimant that the legislation can and should be read so that the provisions of section 50(9A)(a) which deem a mother's husband to be the father is treated as no more than a rebuttable presumption, which can be displaced by proof that someone else who satisfies the requirements of paternity is the father. He submits that any other reading breaches the Claimant's rights under Articles 8 and/or 14 of the European Convention on Human Rights (“the ECHR”), to be recognised as her true father's daughter, and to acquire his nationality. He submits that section 50(9A) of the BNA 1981 can be read down in the way he suggests, using section 3 of the Human Rights Act 1998 (“the HRA”), to avoid this result. Alternatively, he says that if I do not consider section 3 HRA can be used in this way, the Court should declare that section 50(9A) of the BNA 1981 is incompatible with the ECHR, using its powers under section 4 HRA.
The Defendant's case is that the Claimant's reading of the legislation is neither necessary nor possible.
As to why the Claimant's reading is unnecessary, the Defendant says that his reading of section 50(9A) of the 1981 Act does not breach Article 14 ECHR read with Article 8, because he does not accept that Article 14 is engaged at all, and if it is, the law as it stands is justified.
In any event, the Defendant submits, the words of section 50(9A)(a) cannot be read, as the Claimant proposes, as a rebuttable presumption without undermining the policy of the Act that for the purposes of conferring nationality by birth, the people who are a child's parents should be certain. His case is that, on a proper reading of the clear words of section 50(9A), subsection (c) only arises if subsection (a) does not apply, because the words “where none of the paragraphs (a) to (ba) apply” cannot be read other than as giving priority to the definition of paternity in section 50(9A)(a) and (b) over the fall-back definition in section 50(9A)(c). He also emphasises the importance, in a context where there may be more than one person with a social claim to fatherhood, of the law providing one clear route to identifying no more than one person who is the child's father for the purposes of passing on nationality. Thus, the Claimant's father must be deemed to be the Pakistani man to whom her mother was married at the time of her birth (29 May 2014), and accordingly, notwithstanding the existence of satisfactory proof that another man is her biological father, the Claimant is not entitled to British citizenship.
If the Defendant's submission is right, the Claimant in this case does not have a right to British nationality under section 1 of the BNA 1981 as the child of a British national as of right, because she is deemed not to be the child of the man who is her biological father and named on her birth certificate. She may apply to the Secretary of State to grant her British nationality as a matter of discretion, under the terms of section 3 of the 1981 Act, but – as Mr Tam QC (who ably represented the Secretary of State in this case) accepts – that is a wide discretion. Other matters, such as the character or contacts of parent or child, might feed into that exercise of discretion. So the existence of the right to be considered for a discretionary grant of citizenship under s3 of the 1981 Act is not a complete answer to the absence of a right to citizenship upon proof that one's actual father is a British national which arises in this case.
This case has been treated as a lead case on an issue, which I am told has arisen in a number of other cases, some of which have been settled individually and others of which have been stayed behind this case.
The facts
The facts can be shortly stated. The Claimant in this case, K, was born in Lambeth on 29 May 2014. The birth was registered on 20 June 2014, showing her father as SK and her mother as MT. It is not in dispute that SK is indeed K's biological father. SK and MT lived together when K was born, as they continue to do.
SK is a British citizen and has lived in Britain at all material times. K's mother and litigation friend, MT, is a Pakistani national, who entered the UK as a visitor on 24 April 2013. At the time of K's birth, MT did not have settled status in the United Kingdom, and so K could not claim British nationality through her.
Although MT was and is in a committed relationship with SK, at the time of K's birth, she remained married to RS, to whom she had been married in Pakistan. RS is also a Pakistani national, so K cannot claim British nationality through him. MT left RS because she said he had been violent towards her.
In due course, K's parents made an application on her behalf for a British passport, accompanied by K's birth certificate and evidence that her father, SK, is British. She was granted a British passport valid from 9...
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