Johnson, R (on the application of) v The Secretary of State for the Home Department

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was a British national (see British Nationality Act 1981 (“BNA”), sections 2(1) and 3(1) read with section 50(9), as originally enacted).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.

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.

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.

To resolve the Secretary of State’s appeal, it is necessary to answer the following questions:

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 so by that time the UK had already decided that it should not impose a blanket ban on the illegitimate children of British national fathers obtaining British nationality at birth. He further submits that as a matter of Treaty obligation the UK was not bound by Genovese because under Article 46(1) of the Convention a state is only bound by decisions given against it.

Moreover, submits Mr Eicke, in order to comply with the principle of legal certainty any grant of nationality to a person subsequent to birth could only be prospective. Parliament would not authorise the grant of British nationality from a past date because of the legal difficulties that result from the retrospective change of status.

Mr Eicke points out that there is now a provision which enables a person to apply for registration as a British citizen even if he was the illegitimate child and his father was a British citizen (see section 4F of the BNA, which was inserted into the Act by the Immigration Act 2014, section 65, with effect from 6 April 2015). But Mr Johnson cannot utilise this provision because good character is a condition of any such application (see the BNA, section 41A). His convictions would prevent him from applying for nationality under this provision as the child of a British citizen.

Mr Hugh Southey QC, for Mr Johnson, disagrees with Mr Eicke’s interpretation of Genovese. He contends that the denial of nationality violated the Convention and that the violation persisted down to the making of the deportation order at least.

He submits that Genovese reflects the effect of the Convention at Mr Johnson’s birth. In any event, even though the Convention does not provide a right to nationality and even though Article 14 has no independent existence, Article 14 may give rise to a violation if the claim falls within the “ambit” of another Article (see, generally, R(S) v Chief Constable of Yorkshire Police [2004] 1 WLR 2196 at [42]). The enjoyment of nationality falls within the ambit of Article 8 (the right to private life): see Genovese. So, if a state decides voluntarily to provide a right to citizenship, it must not provide that right in a manner which violates with the Convention’s provisions on non-discrimination (unless the non-compliance with the Convention is justified).

Mr Southey also submits that the distinction between legitimate and illegitimate children was not justifiable. The Strasbourg Court said in Fabris v France (2013) EHRR 19 at [59] very weighty reasons have to be advanced before a state can adopt differential treatment on the basis of legitimacy.

Furthermore, submits Mr Southey, the state could only remedy the violation in Mr Johnson’s situation by granting nationality with retrospective effect. Section 47 of the BNA, which granted (prior to its repeal in 2006) an illegitimate child, rendered legitimate by the subsequent marriage of his parents, British nationality as from the date of his parents’ marriage showed that there were circumstances in which nationality could, contrary to the submission of the Secretary of State, be granted retrospectively. I would point out that section 47 is the only example of the retrospective grant of nationality that we have been shown and that the retrospective effect is only from the date of the parents’ marriage. No provision in any statute we have been shown makes any acquisition of nationality subsequent to birth retrospective with effect from birth.

I turn to my conclusions. For the following reasons, I would hold that there was no violation of Mr Johnson’s Convention rights on birth. He could only acquire nationality thereafter with effect from birth if he could invoke a statutory provision which had retrospective effect, and the UK was not bound to introduce such a provision.

As originally enacted the BNA, in common with other European legal systems, appears to have adopted the two rules said to be derived from Roman law – mater semper certa est (the mother is always certain) and pater semper incertus est (the father is never certain).

There is no reference in the Convention to the denial of nationality or the status of illegitimate children. It is well established, however, that the Convention is a living instrument and that its meaning can change over time. The question is whether this is what happened in the case of the right to nationality by descent of illegitimate children.

At first sight it would appear that, even in 1985, when Mr Johnson was born, paternity could be established by DNA testing, and that once children could be born by IVF treatment it was no longer true that the mother of a child was always certain. Even without those developments in biotechnology there would have been cases where there was no difficulty in providing proof of paternity. Moreover, as the judge pointed out (Judgment, para. 46), the European Court of Human Rights (“the Strasbourg Court”) had already held in 1979 in Marckx v Belgium (1979-89) 2 EHRR 330 that Belgian law was discriminatory when it precluded illegitimate children from having a claim on the estate of their mother.

On the other hand, in 1985, shortly after Mr Johnson’s birth, the European Commission on Human Rights (“the Commission”) decided, as Dingemans J points out, in K & W v Netherlands (1985) 43 D&R 216, that the Convention does not confer any right to acquire any particular nationality. That decision does not anticipate the decision in Genovese, and indeed is inconsistent with it, as Mr Southey accepts. The view it expresses is unqualified. On the other hand, it is only an admissibility decision and it is a decision of the Commission and not the Strasbourg Court, but there is no material before us to suggest that the Strasbourg Court would have taken a different view from the Commission. It is therefore not possible to hold that by 1985 the discriminatory denial of nationality to an illegitimate child at birth violated the Convention.

The 1987 policy suggests that opinion in Europe on the obligations of Convention states under Article 14 taken with Article 8 may have been changing within a short period after 1985, but Mr Johnson has not suggested that that is why the policy was adopted or how widespread this change was.

Taking account of these factors, in my judgment, I am not satisfied that if the Strasbourg Court had, at the date of Mr Johnson’s birth, been required to consider sections 2, 3 and 50(9) (as originally enacted) of the BNA, it would have held that Article 14 read with Article 8 was violated by the discriminatory denial of nationality at birth to illegitimate children.

I now turn to some subsidiary points.

The first point relates to the question whether, if the Convention required the position to be remedied and nationality to be granted to Mr Johnson, the UK was bound to confer it with retrospective effect. I do not consider that, when it became clear that it was a violation of the Convention to deny nationality by descent at birth to illegitimate children of British national fathers, the UK was obliged to grant nationality to Mr Johnson retrospectively. In Marckx v Belgium, the Strasbourg Court ruled that its judgment on the rights of illegitimate children should not have retrospective effect (see Judgment, paragraph 58). This is a strong signal that changes in status resulting from the interpretation of the Convention in the light of current day conditions should not necessarily lead to a conclusion that the change has to be retrospective or imposed on those affected. I accept Mr Eicke's submission that, if a state had to bring its law on nationality into line with Strasbourg's changing approach, it would be open to a state to make that change prospective only and available only on application.

In the face of that conclusion, Mr Johnson seeks to meet the problem that he cannot meet the good character requirement in another way. Mr Southey submits that the good character requirement cannot be raised against Mr Johnson because he was not treated in the same way at birth as a legitimate child. But I do not consider that that means that Mr Johnson is entitled to an option to become a British citizen on proof of paternity exercisable at any time in his life. I am prepared to proceed on the basis that, if the denial to him of British nationality at birth had amounted to a violation, it would have been sufficient for him to have the right to acquire nationality without conditions (save as to proof of paternity) during his minority and say for 5 years thereafter. But there is no evidence that he would ever have applied for British nationality. Once that period for special treatment has gone, in my judgment Mr Johnson can have no claim to be treated differently from other people now applying for British nationality. In attaching conditions to the grant of nationality subsequent to birth, the state has a wide margin of appreciation because such conditions constitute a measure of economic or social strategy (Stec v UK (2006) 43 EHRR 1017).

Mr Southey argues that a legitimate child would not lose citizenship because of non-compliance with the good character requirement and so an illegitimate child should not do so either. 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. Very different considerations apply to the former situation particularly when it may lead to statelessness.

does the HRA apply to a violation originating in a pre-HRA event?

If (contrary to the conclusion reached above) there was a violation of the Convention, it consisted of the denial of a right to British nationality on birth. The judge’s reasoning was that this was a violation of the Convention which would apply whenever Mr Johnson’s lack of British nationality gave rise to prejudice, as when the Secretary of State ordered him to be deported. The judge relied on Ratcliffe v Secretary of State for the Home Department [2009] EWCA Civ 39. This was not, however, a decision based on the commencement provisions of the HRA. The judge also referred to the decision of the UN Committee on the Elimination of Discrimination against Women in Salgado v UK (Communication No. 11/2006), but this likewise does not assist as it is not addressed to the commencement provisions of the HRA.

It is well established in Convention case law that the mere fact that a violation has consequences after it occurs does not mean that there was a continuing violation of the Convention from the date of the triggering event: see, for example, Posti & Rahko v Finland App No 27824/95 at [39]-[40]. In that case, the applicants complained that a fishing restriction imposed and maintained by governmental decree had violated their right to peaceful enjoyment of their right to fish certain waters, and that they had no effective access to court for a remedy. The applicants argued that there was a continuing violation so that the six-month rule on applications was met but the Strasbourg Court held the fact that an event had significant consequences over time did not mean that the event has produced a continuing violation.

That leads to the question whether Mr. Johnson can show a continuing violation in his case. It is clear that the HRA does not apply retrospectively. Section 22(4) of the HRA states that (with an immaterial exception where a public authority commences proceedings) section 7(1) of the HRA (which authorises proceedings to enforce Convention rights) does not apply to an act taking place before the coming into force of that section. This provision would appear to apply in the present case and it would be circumvented if Mr Johnson could rely on a pre-HRA violation which did not continue after the commencement of the HRA.

Mr Southey submits that there could have been no deportation order against Mr Johnson but for the original violation, as the judge held. Put another way, the denial of citizenship puts him at risk of being removed from the society where he has lived for most of his life. Mr Southey submits that there is a continuing violation so long as Mr Johnson is treated differently from legitimate children of British nationals. He submits that there is no reason why a victim cannot suffer from a violation a long time after the relevant wrongful act of the state (see Fabris v France at [68]).

This submission raises the question whether the judge was right to decide whether there was a continuing violation on the basis that the test of “but for” causation was met. I do not think that he was. The test of “but for” causation does not reflect Convention case law. In any event, as a matter of common sense, the immediate cause of the deportation order would, with respect to the judge, appear to be the conviction for serious offences: the denial of citizenship was only one of the background factors. Likewise Mr Johnson’s failure to protect his own interests by making an application under the 1987 policy is one of the causative factors. At no point in time has Mr Johnson sought British nationality prior to the start of the proceedings. (As explained, any application now would founder because he could not meet the good character requirement.)

There has been a considerable amount of case law at the highest level on the question whether an obligation under Article 2 of the Convention (the right to life) to hold an inquiry into a suspicious death is a continuing obligation which may give rise to a violation after the commencement date of the HRA even though the death occurred before that date. This obligation forms a potential parallel with the issue of continuing obligation in this case since the UK has not taken steps to place Mr Johnson in the same position as a legitimate child of a British national father.

Initially in Re McKerr [2004] 1 WLR 807 the House of Lords took the view that, if the death occurred before the commencement date of the HRA, there was no obligation to hold an inquiry under Article 2 because the HRA did not apply retrospectively. That view was modified in re McCaughey [2012] 1 AC 725 in the light of developments in Convention case law showing that the obligation to hold an Article 2 inquiry was a separate and independent obligation. Article 2 could therefore apply notwithstanding the HRA provided that a decision was taken about the conduct of such an inquiry after the commencement date of the HRA. If no step was taken, Article 2 did not apply.

Mr Southey questions whether, in the light of recent case law, McCaughey would still be good law if this matter went to the Supreme Court. He accepts that in the light of Kay v Lambeth BC [2006] 2 AC 465) it is not open to this court to depart from McCaughey even if it were satisfied that that case no longer mirrored Convention case law. In the discussion which follows, I analyse Mr Southey’s submission as to what might follow from the recent case law.  However, the question before us is as to the effect of the HRA, and it has been held by the Supreme Court in McCaughey that for the HRA to apply to a pre-HRA violation there must be a separate and independent obligation under the Convention which persists after the commencement date of the HRA, which is not present in this case.  In the discussion which follows, I am not expressing any view as to whether the HRA has any wider effect.  Nor do I express any view as to what the Supreme Court might in the future decide.  I am simply analysing what I understand to be Mr Southey’s submission.

The basis for Mr Southey’s submission is the recent decision of the Supreme Court in R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] 2 WLR 1665. This was decided only after the hearing of this appeal but we have had some short written submissions from counsel on it.

Keyu concerned the question whether the UK should investigate the killing of civilians in Malaysia in 1948, the Supreme Court applied the test adopted by the Strasbourg Court in Janowiec v Russia App nos. 55508/ 07 and 29520/09. In that case the Strasbourg Court held that there was no obligation to investigate deaths which had occurred in the Katyn massacre in 1940 because there was no genuine link between the entry into force of the Convention in relation to Russia (1998) (“the crucial date”) and the deaths in question. (The date on which the Convention came into force in relation to Russia also happened to be the date on which it granted the right of individual petition to the Strasbourg Court, and the latter event may be the relevant event for the purposes of Janowiec for reasons which need not detain me in this case). The Grand Chamber took the view that there had to be some relevant act or omission after the crucial date, and that, save in the case of the most exceptionally serious violations, the maximum period of time between the event giving rise to the violation and the crucial date was ten years before the failure to hold an inquiry into the event could constitute a violation of the Convention. Even if the crucial date fell within the maximum ten year period, there were further conditions that had to be fulfilled under Convention case law. In particular, a significant step had to be taken after the crucial date.

The significance of Keyu for present purposes is that it concerned the question whether there was a continuing obligation after the Convention came into force to hold an inquiry that had never been begun, and not, as in McCaughey, whether there was a continuing obligation after the HRA came into effect to complete an inquiry which it had already been decided should be held. The Supreme Court had to apply Convention case law to this question in Keyu. In so doing, the Court raised the question whether the same test should also now apply to the question whether after the HRA there was a continuing obligation to hold an inquiry into a pre-HRA death when no decision to hold one had been taken before the HRA came into force. Lord Neuberger expressly left open the question whether the reasoning in Janowiec could apply to allegations of a violation of Article 2 which originated prior to the HRA (Judgment, [97]).

So, if that point was considered in the Supreme Court now, the Supreme Court might conclude that the decision in Janowiec meant that it was no longer open to the UK courts to hold that there was no obligation to hold an inquiry into a pre-HRA death simply because no decision had been made to hold an inquiry after the entry into force of the HRA. The question whether Convention case law applied in this situation had been developed especially in the period since McKerr and McCaughey were decided.

Mr Eicke submits that Keyu concerned the application of the Convention to acts before the UK became a party to the Convention rather than the operation of the HRA. I do not accept that submission. For the reasons explained in the preceding paragraph, reconsideration of McCaughey by the Supreme Court may lead to the conclusion that a violation of Article 2 can occur after the commencement date of the HRA even if the death occurred before that date.

Mr Eicke emphasised that the principle that the HRA has no retrospective effect remained as before. However, the issue in Janowiec was not retrospective effect, but whether the violation continued or occurred after the Convention came into force.

Although the impact of the Convention jurisprudence considered in Keyu on McCaughey is an important point for the Supreme Court to consider in another case, I do not accept Mr Southey’s submission that it affects this case. As I see it, the approach in Janowiec cannot apply in this case for three reasons.

First, there is no separate and independent obligation in this case arising out of a pre-Act violation of Convention rights as there is where a violation of Article 2 rights has occurred or an obligation under that Article to hold an enquiry has arisen. There is as yet no indication in the Convention case law that UK must change its legislation so as to put the victims of a violation by reason of the denial of British nationality into the same position as they would have been if the violation had never occurred. Mr Southey seeks to counter this point by arguing that it is sufficient that the judge found that the deportation order would not have been made “but for” the denial of British nationality at birth. As explained in paragraph 34 above, I do not accept this point. There were plainly other factors which contributed to this result, such as Mr Johnson’s criminal behaviour and his failure to make an application for nationality under the 1987 policy.

Second, the Strasbourg Court has made it clear that, save in exceptional circumstances (not applying here), the maximum time between the death and the crucial date was ten years. That period of time has been exceeded in this case.

Third, the denial of nationality is by its nature is a once and for all event. Mr Southey disputes this and relies on Loizidou v Turkey (1996) 23 EHRR 513 where the Strasbourg Court found a continuing violation by Turkey in relation to the misappropriation of property in Northern Cyprus. However, in that case the Strasbourg Court found that the applicant remained owner of the land in question (see Judgment, [47]). Therefore he continued to be affected by interference with his property rights after the original misappropriation took place. That is quite unlike the present case. The violation occurred once and for all on Mr Johnson’s birth. He never became a British national and so the violation began and ended upon his birth.

Mr Southey’s alternative way of putting the point is that the UK should subsequently have provided the right to acquire nationality by registration at any time. But that could only assist Mr Johnson if the UK could only do so on terms which replicated without additional requirements the right given to illegitimate children of British national mothers at birth. As explained in the context of Question (1) in paragraph 28 above, I do not consider that Parliament was precluded from inserting the good character requirement, either immediately or from some date such as five years after an illegitimate child obtained his majority. In my judgment, it was open to Parliament to take the view that the right, not being one which (for the reason given in answer to the first Question considered in this judgment) it was originally obliged to confer, could have requirements attached to it which it reasonably considered appropriate. No grounds have been put forward for saying a good character condition was inappropriate apart from the fact that it was not required for the acquisition of nationality at birth. A good character condition could not sensibly have been imposed in that case. Furthermore, a good character requirement had already been imposed for the 1987 policy. In conclusion, Mr Southey’s alternative approach cannot help Mr Johnson either.

Mr Southey submits on the basis of his cross-appeal that, where historic injustice has occurred, as it had done by reason of the original violation as at Mr Johnson’s birth, this factor should carry considerable weight in any balancing exercise under Article 8: see R(Gurung) v Secretary of State [2013] I WLR 2546 at [41].

Mr Eicke submits that an appeal against the decision of the Secretary of State’s deportation order could not succeed on human rights grounds because of the public interest considerations required to be taken into account under section 117C of the 2002 Act (as amended).

In my judgment, I do not need to expand on the concept of historic injustice and its implications in this case. Historic injustice cannot apply where in the eyes of domestic law there was no violation or where there was no wrong for which the domestic courts could have given remedy under the HRA.

Mr Johnson has failed to show either a violation of a Convention right or a violation within the jurisdiction of the court under the HRA. I would therefore allow this appeal and dismiss the cross-appeal and direct that the decision of the Secretary of State dated 23 November 2012 should stand.

Without expressing any concluded view on the wider implications of the Supreme Court's decision in Keyu, I agree that the Secretary of State's appeal should be allowed for the reasons given by Arden LJ.

I agree that this appeal should be allowed for the reasons given by Arden LJ. I would prefer to express no opinion on the impact of Keyu [2015] 2 WLR 465, which (as Arden LJ observes: paragraph 44) does not affect the outcome in the present case.