The UK Supreme Court found the denial of British citizenship to the child of a British father and a non-British mother simply because they were not married at the time of the birth or any time thereafter violated Article 8 (Private and Family Life) of the European Convention of Human Rights (the Convention). In reaching this decision Lady Hale on behalf of the Supreme Court stated: ‘The child is not responsible for the marital status of his parents or the date of his birth, yet it is he who suffers the consequences’.
By way of background the appellant Mr Johnson was born in Jamaica in 1985 to a Jamaican mother and a British father, moved to the United Kingdom in 1991 to live with his father and has been living there ever since. The British Nationality Act, 1989 provided that someone born outside the UK after 1982 is entitled to UK citizenship provided one of his parents is British. Whilst changes in the Immigration, Asylum and Nationality Act 2006 entitled illegitimate children born to British fathers to automatic British Citizenship, no application was ever made. Children born prior to this date were required to lodge an application to the Home Office and certain criteria had to be met by the applicant. An applicant had to be of ‘sufficient good character” as set out in the Immigration Act, 1987. Mr Johnson had a criminal history and was serving a nine year sentence for manslaughter. As a result, in pursuant of the UK Borders Act 2007, Mr Johnson faced deportation as he was been regarded a "foreign criminal”.
Mr Johnson appealed the deportation on the grounds that his denial of British nationality was in breach of his right to family and private life provided for under the Convention and also that it would be unlawful discrimination. The Supreme Court held that Mr Johnson’s liability to deportation as a result of being an illegitimate child was unlawful discrimination in breach of his Convention rights. The Court found that the denial of citizenship was not a ‘one off’ event that happened at birth and which had no continuing effect capable of being a violation of the Convention. In this case the Supreme Court found the denial of citizenship had a current and direct effect on the appellant in the shape of deportation. The Court found the requirement to be of ‘good character’ contained in the legislation to be contrary to the Convention and a declaration of incompatibility with the Human Rights Act was issued in respect of section 41A of the 1981 Act.
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