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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 OCT 2014

Johnson v The Secretary of State for the Home Department [2014] EWHC 2386 (Admin); (2014) PLLR 093

Johnson v The Secretary of State for the Home Department [2014] EWHC 2386 (Admin); (2014) PLLR 093
Queen’s Bench Division, Administrative Court, Dingemans J
17 July 2014

Summary

Differential treatment of individuals for immigration purposes on the basis of their parents’ marital status is unlawful under ECHR Articles 8 and 14.

Detail

(1) The claimant challenged his proposed deportation to Jamaica following his conviction for manslaughter and supplying class A drugs for commercial gain. The claimant was born in Jamaica to a British father and Jamaican mother who did not marry. Had his parents been married, the claimant would have become a British citizen. He challenged his deportation on the grounds that it violated his Article 8 and 14 ECHR rights.

(2) The claimant moved to the UK in 1991 when he was 4 years old and was granted indefinite leave to remain the next year; he has lived in the UK ever since. Neither the claimant nor his father applied for British citizenship prior to his 18th birthday, and it is probable he would have obtained it had he applied.

(3) The claimant acquired a series of criminal convictions beginning in 2003. After receiving a 9-year prison sentence for manslaughter, the defendant served notice that the claimant was subject to automatic deportation pursuant to section 32 of the UK Borders Act 1007 on 22 March 2011. The deportation order was made on 18 August 2011.

(4) The claimant appealed against the deportation order to the First Tier Tribunal, which initially allowed his appeal on the basis that he was British. The First Tier Tribunal later set aside this decision after sending out a note stating that it had been mistaken in its holding. A further hearing took place before the First Tier Tribunal at which it found that the claimant’s Article 8 rights were engaged, but that the deportation was proportionate and lawful.

(5) The matter was remitted to the defendant for consideration of the issue of discrimination contrary to Article 8 and 14, as the claimant would not have been a foreign national if his parents had been married. The defendant reconsidered the claimant’s case on 23 November 2012 and maintained the decision to deport him, certifying that his human rights claim was clearly unfounded under s.94 of the Nationality, Immigration and Asylum Act 2002.

(6) On 14 May 2014, the Immigration Act 2014 received Royal Assent, though it has not yet been brought into force. S.65 of the 2014 Act provides that a person in the claimant’s position will be entitled to be registered as a British national if provisions as to character are satisfied. Due to the claimant’s convictions, he will not be able to satisfy the character requirements.

(7) The claimant was granted permission to seek judicial review of the deportation decision. The court observed that key questions were:

(1) whether there has been a violation of article 14 in conjunction with article 8 of the ECHR, either because the Claimant was treated differently on the ground that he was illegitimate, or because he was treated differently on the ground that he had a different immigration status;

(2) if so, whether:

(a) the provisions of the 2002 Act can be interpreted to ensure conformity with the Human Rights Act;

(b) the 2002 Act commencement order should be quashed; and

(c) whether any other relief ought to be granted; and

(3) whether the decision certifying the Claimant's human rights claims as “clearly unfounded” should be quashed.

(8) HELD: The court found that there had been a violation of article 14 in conjunction with article 8 of the ECHR, because the claimant is being treated differently on the ground that he was illegitimate, and that such treatment is not justifiable.

(9) The court was satisfied on the basis of case law that claims regarding denial of nationality on the basis of a person’s parents’ marital status is within the ambit of Article 8. It used as a comparator for the purposes of the Article 14 claim a person in an identical status to the claimant’s whose parents had been married, finding that such a person would have been a British citizen from the time of his birth. The court found that the difference of treatment arose from the grounds of the claimant’s parents’ marital status. Different treatment on such grounds is considered ‘suspect’ under the case law.

(10) Though the claimant might have sought citizenship as a child, or avoided deportation by failing to commit criminal offences, the court found that the claimant’s current treatment is due in material part to his parents’ marital status at the time of his birth. The court did not find the present matter to be a result of historic discrimination as in Salgado v United Kingdom (communication No.11/2006).

(11) The court found there was no justification for treating the claimant differently due to his parents’ marital status. The court rejected the notion that there had once been a value in treating people differently in the interests of creating ‘bright line rules,’ finding that such a justification had never existed.

(12) The court found that there had been a violation of Article 14 in conjunction with Article 8. It further found there is no sustainable separate ground of complaint on the basis of immigration status at later times, as argued by the defendant.

(13) The court found that it is not possible to interpret the provisions of section 162(5) of the 2002 Act to permit the defendant to establish a scheme permitting persons to opt into section 50(9) of the 1981 Act as amended. The court declined to quash legislation or regulations, as doing so might have unintended effects.

(14) The court ordered that the parties should liaise to attempt to agree remedies to give effect to this judgment, failing which a further hearing will be arranged.

(15) The “clearly unfounded” certification of the claimant's human rights claims should be quashed.

Claim succeeded.

Key Paragraphs

[37] – Parents’ marital status and Article 8
[39] – Article 14 comparator
[51] - Parents’ marital status a material factor in treatment
[53]- Historic discrimination
[55] – No justification for differential treatment
[60] - No justification for differential treatment
[61] – Violations of Articles 8 and 14 ECHR
[63]-[64] – No separate ground for differential treatment
[65] – Interpretation within the Human Rights Act
[72] – Clearly unfounded human rights claims
[73] – Conclusion
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