Decision in the case of R (Johnson) v the Secretary of State relating to British nationality law, 19/10/2016

The recent judgement by the Supreme Court on 19 October 2016 in the case of R (Johnson) v the Secretary of State, held that it is discriminatory to deny a child born out of wedlock not to be recognised as British. It is the most important legal decision concerning British nationality law for a long time.

The decision opens up the possibility of people being recognised as British who had a parent who was British and who fall into one of two camps, first those born prior to 1 July 2006 and secondly, those previously refused recognition as a British citizen on the grounds of the good character requirements.

It is important to appreciate that a British parent referred to above must either have been born in the UK or have been naturalised as one. 

If you fall into one of the above categories or simply seek advice or assistance with a British nationality application, please contact us and of our lawyers can provide advice pertaining to your circumstances. 

The facts

The applicant was born in Jamaica to a British father and a mother who was Jamaican. His parents were unmarried at the time of his birth and did not subsequently marry. The applicant did not apply to register to become British and, at eighteen years of age committed serious criminal offences. It should be noted that applicant had ‘settled’ status from the age of seven.

The law

Section 50 (9) of the British Nationality Act 1981 (BNA 1981) recognised that the child born to a mother whether legitimately or illegitimately as being British, but not to a child born to a father unless, born legitimately.

However, section 47 of the BNA 1981allowed for the child born out of wedlock to be legitimated if his parents later married, so long as the marriage itself was lawful according to the jurisdiction that it took place in – the legitimisation itself taking affect from the date of the subsequent marriage.

Section 50 (9) of the BNA 1981 was amended by the Immigration, Nationality and Asylum Act 2002 (2002 Act) allowed for a child to be recognised as British, if the father could prove ‘paternity’ and took affect from 1 July 2006. 

Section 3 (1) of the BNA 1981 allows for a person, whilst minor to apply for registration as a British national.

The Secretary of State in practice considers applications from minors who were born to a British father out of wedlock prior to 1 July 2006.

The legal issue

The UK laws allow for deportation of individuals, even though they are settled, if they have committed a criminal offence which results in a sentence being imposed of twelve months or more.

The applicant in this case would not be liable to deportation if:

 his parents were married at the time of his birth;

• his parents married after his birth;

• his mother had been British; or

• an application had been made to register him before he was British.

The challenge was brought on the grounds that the UK laws violated the Human Rights Act on grounds of discrimination.

The decision

Lady Hale giving judgement, considered various decisions under European law. She went to make the observation that:

“a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or there is not a reasonable relationship of proportionality between the means employed and the aim to be realised”

The Secretary of State had addressed an historic injustice through the 2002 Act, but that did not appear to adequately address the position of those born to a parent of a British citizen out of wedlock prior to 1 July 2006.

There it enables the Secretary of State to remove an individual from the UK as in the case of the applicant here. However, therein lies the ‘discrimination’ as it penalises a person who may or may not have become British if his parents had married or not. Therefore an applicant has no control over this ‘accident’ at birth, but the penalty of being born out of wedlock and thereby being denied the status of British citizenship cannot be justified. 

Conclusion

As mentioned above, this decision now opens up the possibility of many claims to British citizenship. British nationality or citizenship can be a complex area of law. The solicitors are RLegal have many years of experience and are accredited by the Law Society.

If you would require legal advice on British citizenship or nationality please contact us by completing the online form, or by sending an email to info@rlegal.com or by telephoning us on 020 7038 3980 and one of our lawyers will discuss your case in confidence.