Deportation of a Foreign Criminal Born of Unmarried Parents is Discriminatory
November 10, 2016
Deportation of a Foreign Criminal Born of Unmarried Parents is Discriminatory
R (on the application of Johnson) v Secretary of State for Home Department
Supreme Court of the United Kingdom
 UKSC 56
Lady Hale DP, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson
October 19, 2016
Reported by Linda Awuor & Faith Wanjiku
International Law- law of treaty-European Convention on Human Rights-Prohibition of discrimination-national origin- whether it was compatible with article 14 on prohibition of discrimination of the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were unmarried at the time of his birth or at any time thereafter- European Convention on Human Rights, article 14
International Law- law of treaty-European Convention on Human Rights-Right to respect for private and family life-interference by a public authority-whether the deportation order against the Appellant violated his right to respect for private and family life under article 8 of the Convention thus being unlawfully discriminatory- European Convention on Human Rights, article 8
Immigration Law-Deportation-deportation of criminals-exceptions- whether the Appellant under section 33 (2) of the UKBA was owed a right to not be deported on the ground of being a foreign criminal born of unmarried parents-UK Borders Act, 2007, sections 32 (5), 33(2)
The Appellant was born in Jamaica in 1985 to a Jamaican mother and British father who were not married to one another. His father moved to the United Kingdom with him when he was four, and he lived there ever since. Under the law in force at his birth, the Appellant became a Jamaican citizen but not a British one. He could have been a British citizen had his mother and father been married to one another, or married subsequently, or had his mother been the parent with British citizenship. He could also have been granted British citizenship had he or his father applied while he was still a child and, if over 16, of good character. However, no application was made.
Between 2003 and 2008, the Appellant was convicted of a series of serious criminal offences, culminating in a conviction for manslaughter for which he was sentenced to nine years’ imprisonment. In 2011, the Secretary of State made a deportation order against him on the ground that he was liable to automatic deportation as a foreign criminal under section 32(5) UK Borders Act 2007 (UKBA). Removal directions were set. The Appellant appealed, arguing that deportation could have breached his right to family life protected by article 8 of the European Convention on Human Rights (Convention) and be unlawfully discriminatory under article 14, given that he could not have been liable to deportation had his parents been married to one another. After reconsideration the Secretary of State confirmed her decision and also certified that the Appellant’s claim was clearly unfounded, thereby removing his right of appeal against her decision in the country. The Appellant’s claim was amended to challenge both the deportation decision and the issue of the certificate.
The High Court held that discrimination against a child of unmarried parents at birth and thereafter violated the Appellant’s Convention rights, and thereafter quashed the certificate. The Court of Appeal allowed the Secretary of State’s appeal, holding that there had been no violation of the Appellant’s rights at the relevant time, namely his birth, which was long before the Human Rights Act 1998 (HRA) came into force. The Appellant then appealed to the Supreme Court.
i. Whether it was compatible with article 14 on prohibition of discrimination of the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were unmarried at the time of his birth or at any time thereafter.
ii. Whether the Appellant under section 33 (2) of the UKBA had a right to not be deported on the ground of being a foreign criminal born of unmarried parents.
iii. Whether the deportation order against the Appellant violated his right to respect for private and family life under article 8 of the Convention thus being unlawfully discriminatory.
iv. Whether the denial of automatic citizenship at birth was a one off act, which took place before the Human Rights Act came into force, or whether it had continuing consequences which could amount to a violation of article 14 of the Convention.
Relevant Provisions of the Law
European Convention on Human Rights
Article 8- Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14-Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
UK Borders Act, 2007
Section 32-Automatic Deportation
(1)In this section “foreign criminal” means a person—
(b) who is convicted in the United Kingdom of an offence,
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(4) For the purpose of section 3(5) (a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
Section 33 (2)-Exceptions
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person’s Convention rights, or
(b) the United Kingdom’s obligations under the Refugee Convention.
Human Rights Act, 1998
Section 6-Acts of Public Authorities
(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2)Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
- Exception 1 under section 33 of the UKBA did not require that there be a breach of section 6 of the HRA but merely that the deportation be a breach of the Convention rights. If Exception 1 applied, then section 32(5) of the UKBA did not apply and a deportation order could not lawfully be made under that provision. To similar effect was rule 397 of the Immigration Rules, which provided that a deportation order could not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Convention. The grounds of appeal under section 84(1) of the Nationality, Immigration and Asylum Act, 2002, as it stood at the relevant time, included, not only, at (a), that the decision be not in accordance with the Immigration Rules, but also, at (e), that it was not in accordance with the law. It mattered not that ground (c) was limited to decisions that were contrary to section 6 of the Human Rights Act, provided that there was a breach of the Convention rights. Section 6(2) (a) of the HRA was a red herring.
- Although article 15.1 of the Universal Declaration of Human Rights stated that everyone had the right to a nationality, the Convention said nothing about the right to a nationality. In K and W v the Netherlands, the European Commission on Human Rights (Commission) declared inadmissible a complaint about Dutch citizenship law: a woman married to a Dutch man could obtain citizenship simply by writing to the local mayor; a man married to a Dutch woman could not. The Commission found that the right to acquire a particular nationality was not covered by, or sufficiently related to article 8 or any other provision of the Convention, for article 14 to come into play. In Karassev v Finland, the Commission repeated that the Convention did not guarantee the right to acquire a particular nationality. Nevertheless, it did not exclude that an arbitrary denial of citizenship might in certain circumstances have raised an issue under article 8 of the Convention because of the impact of such a denial on the private life of the individual.
- In Kuric v Slovenia, the discriminatory erasure of the Applicants’ residence rights was held to be a breach of article 14 read with article 8 even though their residence had not in fact been affected. It was well established that a person’s social identity was an important component of his private life, which was entitled to respect under article 8. That included the recognition of his biological relationships, even if the refusal of recognition had no noticeable impact upon his family life. Thus, for example, in Menneson v France, Labassee v France, it was a violation of the right to respect for private life for French law to deny the existence of the relationship between the biological father and the children born as a result of surrogacy arrangements in the United States. It was clear that the denial of citizenship, having such an important effect upon a person’s social identity, was sufficiently within the ambit of article 8 to trigger the application of the prohibition of discrimination in article 14.
- Under article 14 of the Convention, a difference in treatment was discriminatory if it had no objective and reasonable justification, that is, if it did not pursue a legitimate aim or if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realized. It was also clear that birth outside wedlock fell within the class of suspect grounds, where very weighty reasons were required to justify discrimination. That was held as long ago as Inze v Austria, where children born in wedlock were given priority over children born outside wedlock in the inheritance of a family farm.
- The case had been bedevilled by arguments about precisely what had to be justified. If it was the initial denial of automatic citizenship in 1985, the Secretary of State could have argued that it was not even recognised as within the ambit of article 8 at the time and so did not need justification. If it was the continued denial of citizenship in 2012, the Secretary of State could have argued that steps had now been taken to put right the historic injustice, but that it was justifiable for those steps only to operate prospectively; it was reasonable to have a citizenship law which assigned citizenship to certain people automatically at birth and granted it later only on application. Citizenship could not be imposed upon people unless they had asked for it; it could bring disadvantages if they were also citizens of a state which did notrecognise dual nationality. The problem with that argument was that citizenship was imposed automatically at birth upon certain people, whether they wanted it or not and whether or not it gave rise to dual nationality problems. Furthermore it was also imposed automatically if a person was legitimated by the subsequent marriage of his parents. The Appellant’s problems could be over if his mother could be found and his father persuaded to marry her.
- If what needed to be justified was the liability of non-citizens to deportation while citizens could not be deported, the Secretary of State could have had a comparatively simple task. It had always been justifiable to distinguish between citizens and aliens in matters relating to entering, remaining in and removal from the country. The right to live in one’s own country was the principal right of citizenship. Further, if what needed to be justified was the liability of foreign criminals to be deported when other foreigners were not similarly liable (although their presence there could have been controlled in other ways), again the Secretary of State could have had a comparatively easy task.
- What needed to be justified was the current liability of the Appellant, and others whose parents were not married to one another when they were born or at any time thereafter, to be deported when they could not be so liable had their parents been married to one another at any time after their birth. That was a present distinction which was based solely on the accident of birth outside wedlock, for which the Appellant was not responsible, and no justification had been suggested for it. It was impossible to have said that his claim that Exception 1 applied, based on article 14 read with article 8, was clearly unfounded.
- Allowing the Appeal was the consequence of the particular provisions relating to deportation which were relevant. However, there were bound to be other people in the Appellant’s situation, that is, who were denied the automatic right to citizenship by reason of the fact that their British father was not married to their non-British mother at the time of their birth. There were all sorts of current consequences which might have flowed from that situation. An example was the right to vote, which was an aspect of citizenship and also a Convention right under article 3 of the First Protocol. People born before July1, 2006 were denied that right unless they were first registered as citizens. In order to do that they had to pass the good character test in section 41A of the British Nationality Act, 1981. Had their parents been married to one another at or at any time after their birth they would not have to do that. While of course all babies arrived in the world with a good character, the same could not be said of those legitimated by the subsequent marriage of their parents. The distinction was based solely on birth status and for the reasons given earlier could not be justified.
- There were many people who were entitled at birth to the citizenship of more than one country whether they liked it or not: they could have been born in a country, such as the United States of America, which still recognised the ius soli, the right to citizenship of all persons born within the territory; and they could be entitled to citizenship by descent from either or both of their parents, as was the case under the British Nationality Act. But where a person had not automatically acquired citizenship at birth, it was reasonable to expect him to apply for it, even if he was entitled to be registered if he did so. That avoided the risk of inconvenient results and provided everyone with clarity and certainty. But it was not reasonable to impose the additional hurdle of a good character test upon persons who could, but for their parents’ marital status, have automatically acquired citizenship at birth, as that produced the discriminatory result that a person could be deprived of citizenship status because of an accident of birth which was no fault of his.
- The incompatible provision, therefore, was paragraph 70 of Schedule 9 to the Immigration Act 2014, which inserted into section 41A of the British Nationality Act (the requirement to be of good character) a reference to sections 4F, 4G, 4H and 4I, which related to various categories of people who could automatically have become UK citizens had their parents been married to one another at their birth. The Court would make a declaration to that effect,that the statutory requirement that a person in the Appellant’s position had to be of good character in order to be granted British citizenship was incompatible with Convention rights, pursuant to section 4 of the HRA. It was however not necessary to do so in order to have disposed of the case.
Relevance to the Kenyan Situation
The Kenyan legal regime recognizes both, citizenship by birth and registration. The Constitution of Kenya, 2010 provides in article 14 (1) that a person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.
There is also the Kenya Citizenship and Immigration Act, Chapter 172 Laws of Kenya which provides for citizenship, issuance of travel documents and immigration. Sections 6 and 7 of the Act provide the same as article 14 of the Constitution. The Act in section 2 defines deportation as the action or procedure aimed at causing an illegal foreign national to leave the country either voluntarily or compulsorily, or under detention in terms of the Act.
Deportation in the same Act is only applicable to foreign nationals and permanent residents as provided in section 49. Having acquired citizenship by birth regardless of whether one’s parents were married at the time or not or whether one was born in or outside Kenya, a Kenyan citizen cannot be deported.
Under section 22 of the above Act, there are various rights that accrue to a Kenyan citizen which would be unlawful to infringe. These include:
(a) right to enter, exit, remain in and reside anywhere in Kenya;
(b) rightto be registered as a voter without unlawful restriction;
(c) right to participate in free, fair and regular elections based on universal suffrage and subject to the Constitution, to vote and vie for—
(i) any elective body or office established under the Constitution;
(ii) any office of any political party of which the citizen is a member;
(iii) vote in any referendum;
(d) right to own land and other property in any part of the country, in accordance with the law;
(e) right to be appointed to a public office subject to the Constitution and other relevant laws.
The above UK case is important for comparative analysis as it brings out the aspect on how different countries recognize citizenship, specifically by birth, and the consequences emanating from it.