Kate Beaumont interviews Darren Stevenson of McGill & Co about the Supreme Court's judgement in Johnson v Secretary of State for the Home Department  UKSC 56,  All ER (D) 116 (Oct)
This article was first published on Lexis®PSL, Immigration analysis on 2 November 2016. Click for a free trial of Lexis®PSL.
Immigration analysis: Discussing the Supreme Court’s examination of British nationality law in Johnson v Secretary of State for the Home Department, Darren Stevenson, a principal at McGill & Co Solicitors, says there is scope for the judgment to impact upon other aspects of British nationality law, which potentially involve historical discrimination.
Johnson v Secretary of State for the Home Department  UKSC 56,  All ER (D) 116 (Oct)
The Supreme Court allowed the appellant’s appeal against the decision of the Court of Appeal, Civil Division, to allow him to be deported as a ‘foreign criminal’. The applicant, who was born in Jamaica and whose parents had never married, had been convicted of manslaughter. The Supreme Court held that it was not compatible with 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 had not been married to one another at the time of the child’s birth or at any time afterwards.
What is the significance of the judgment for those who are not British because their parents were not married at the time of their birth?
The Supreme Court in Johnson examined British nationality law and determined that the requirement to be of ‘good character’ before certain types of applications for registration as a British citizen are granted is incompatible with the European Convention on Human Rights.
The Immigration Act 2014 introduced, through amendments to the British Nationality Act 1981 (BNA 1981), a specific right to be registered for people who were unable to acquire citizenship automatically because their father was not married to their mother, attempting to rectify historical discrimination on the basis of a child’s ‘illegitimacy’.
However, applications for registration are subject to the proviso, under BNA 1981, s 41A, that an application ‘must not be granted unless the Secretary of State is satisfied that the adult or young person is of good character’.
While not the only matter before the court in Johnson, this provision was nonetheless found to be objectionable. In the words of Lady Hale, who gave judgment, at para :
‘...it is not reasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents’ marital status, have automatically acquired citizenship at birth, as this produces the discriminatory result that a person will be deprived of citizenship status because of an accident of birth which is no fault of his.’
Thus a declaration of incompatibility was issued, under section 4 of the Human Rights Act 1998 (HRA 1998).
On its face this judgment will serve to assist individuals who are not British because their parents were not married at the time of their birth, but only in cases where an applicant may not be able to satisfy the ‘good character’ provision. However it is important to recognise that while the facts in Johnson disclosed a history of serious criminality, there is no definition of
the term ‘good character’ within BNA 1981. Current Home Office policy on the definition of ‘good character’ is relatively stringent, and could bar applications based on an applicant’s bankruptcy or multiple fixed penalty notices for driving offences.
The judgment is of little practical benefit to applicants who would have no difficulty in satisfying the Secretary of State that they are of good character, and it is really only those who would be unable to do so that stand to benefit.
What are the steps that practitioners should now consider where they have a client whose parents were not married but who is not of good character?
If practitioners have a client who would succeed under the new provisions of BNA 1981, namely sections 4E–4I, but for the ‘good character’ test then clearly they can now consider an application. However, for the reasons given below, it may be prudent to wait.
Could this decision affect other categories, such as those who were not British by descent at birth because at the time mothers could not pass on citizenship?
The court’s decision clearly recognises that while the right to a nationality is not as such a Convention right (under the European Convention on Human Rights) nevertheless a denial of citizenship, when it has important effects on a person’s identity, falls within the ambit of art 8 and so triggers the application of the prohibition of discrimination in art 14. In order to challenge other categories of claims on British citizenship, it would be necessary to demonstrate discriminatory treatment. Lady Hale at para  of the judgment reiterated that established test:
‘For the purpose of article 14, 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 if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’
Thus potentially, where the above could be demonstrated, there is scope for the judgment of the Supreme Court to impact upon other aspects of British nationality law, which potentially involve historical discrimination.
What is the significance of the declaration of incompatibility?
This is an important point. HRA 1998, s 4(6) states:
‘(6) A declaration under this section (“a declaration of incompatibility”)—
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made’
Therefore it may be readily seen that despite the declaration, the law remains as it stands for now. As a result it would likely be advisable to wait before making an application on the basis of the decision in Johnson to determine the government’s response.
Relatively few declarations of incompatibility are made by UK courts. Unlike for judgments of the European Court of Human Rights, there is no legal obligation on the government to take remedial action following a declaration of incompatibility, nor upon Parliament to accept any remedial measures the government may propose (see ‘Report to the Joint Committee on Human Rights on the government’s response to human rights judgments’ 2010–11, p 4).
Nevertheless, a declaration of incompatibility is a strong indication that Parliament must consider amendments to the legislation. There is a power under HRA 1998, s 10 to make amendments by remedial order, enabling amendments to be ‘fast tracked’. However there is no obligation to use this power.
What steps do you expect the Secretary of State to take in response to the judgment, including the declaration of incompatibility?
This is difficult to predict. The Home Office has traditionally placed great emphasis on the ‘good character’ test, and indeed recently the test was made more stringent. Such considerations pervade most of the UK’s immigration and nationality law, almost every application type will ask for information on an applicant’s personal history. It is likely that the government will be troubled by this judgment.
Notably the Joint Committee on Human Rights’ seventh report published on 4 March 2015, highlighted that a declaration of incompatibility raised in respect of the statutory disqualification of serving prisoners from voting in parliamentary elections had not been remedied more than eight years after it had been made. While this is an atypical case, potentially a response to the judgment in Johnson is some time away.
It is worth noting however that while the requirement for an applicant to be of good character is contained within statute, and would require legislative amendment, the Home Office’s approach to determining the matter is contained within extensive policy guidance. Therefore there is at least scope for the Home Office to rectify the issue by amending the policy, perhaps to provide an exemption, which would not require parliamentary approval.
Darren Stevenson joined McGill & Co in 2008 having previously spent six years working at the Home Office with what was then the UK Border Agency. He has extensive experience in all aspects of UK immigration law with particular expertise in navigating difficult and technically complex areas, including the Points Based System, EC law and British nationality law. Recently, Darren acted as instructing solicitor in a case at the Inner House of the Court of Session which successfully argued against the Home Office’s interpretation of British nationality law.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor