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Discriminatory denial of British nationality not a breach of human rights

Discriminatory denial of British nationality not a breach of human rights

Mr Johnson was born on 18 March 1985 in Jamaica. His mother was a Jamaican national and his father was a British national. At the time of his birth, an “illegitimate” child could acquire British nationality at birth or by registration as a minor only if his mother was a British national. Mr Johnson therefore could not acquire British nationality by descent either at birth or by registration as a minor. There was a policy in place to permit registration if proof of paternity could be provided.

Mr Johnson came to the UK in 1991 and never acquired British citizenship. he committed some very serious offences, including manslaughter. The Home Office decided to deport him and he resisted deportation partly on the ground that his discriminatory denial of British citizenship at birth was a violation of his human rights and that this historic injustice should be taken into account in decisding now whether to deport him.

The Court of Appeal disagreed. Although in Genovese v Malta (2014) 58 EHRR 25 Strasbourg had held that acquisition of citizenship does engage Article 8 ECHR and a blanket denial to “illegitimate” children was discriminatory under Article 14, this decision was many years after the birth of Mr Johnson and at the time of Mr Johnson’s birth the Strasbourg jurisprudence actually pointed the other way and later changes in understanding should not have retrospective effect.

In any event, the Human Rights Act 1998 was not in force at the time of Mr Johnson’s birth and therefore did not apply.

Source: Johnson, R (on the application of) v The Secretary of State for the Home Department [2016] EWCA Civ 22 (26 January 2016)

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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