In a judgment published on 19 October 2016, Johnson, R (on the application of) v Secretary of State for the Home Department  UKSC 56, the United Kingdom Supreme Court has unanimously allowed an appeal in a case that considered whether it was contrary to the European Convention on Human Rights to deport the appellant on the grounds that he was a ‘foreign criminal’.
The appellant was the illegitimate child of a British man, born prior to the legal change which saw automatic citizenship granted to all children of British citizens.
The appellant was born in Jamaica in 1985 and moved to the UK at the age of four. His father was a British citizen, but Mr Johnson did not acquire British citizen at birth because the nationality laws in place at the time did not bestow citizenship rights where a child’s parents were unmarried and the mother was not a British citizen.
Mr Johnson was granted indefinite leave to remain in the UK in 1992. While changes in nationality law in 2006 entitled illegitimate children to British citizenship, this did not operate retrospectively. It had been possible for Mr Johnson to apply for citizenship where paternity could be proved and good character could be demonstrated, but no application was ever made.
Mr Johnson was convicted of manslaughter in 2008, and sentenced to nine years’ imprisonment. The Home Secretary responded to this conviction by issuing a deportation order in 2011 on the grounds that he was liable to automatic deportation as a ‘foreign criminal’ under the UK Border Act 2007, s 32(5).
The appellant argued that his deportation would be contrary to his right to family life under article 8 of the ECHR, and would amount to unlawful discrimination under article 14, as he would not have been liable to deportation if he had not been illegitimate. He also challenged the Secretary of State’s finding that his human rights claim was clearly unfounded, as this removed his right of appeal in the UK against her decision.
Lady Hale gave the only substantive judgment, with which the other Supreme Court justices agreed.
The Court held, unanimously, that the appellant’s liability to deportation as a result of his illegitimacy was unlawful discrimination in breach of the ECHR.
The Supreme Court quashed the Secretary of State’s certification that his claim was unfounded and made a declaration under section 4 of the Human Rights Act 1998 that the ‘good character’ citizenship requirement was contrary to the ECHR.
The court found that denial of citizenship could fall within the ambit of article 8, where it had an important effect on a person’s identity. This would trigger article 14.
Birth outside wedlock was a ‘status’ for the purposes of article 14, and there was no justification for treating Mr Johnson differently due to the circumstances of his birth.