Case Preview: R (Johnson) v Secretary of State for the Home Department
15 Friday Jul 2016
The Supreme Court will hear the appeal in R (Johnson) v Secretary of State for the Home Department on 25 and 26 July 2016, where it will be asked to consider a challenge to a deportation order, on the grounds that the appellant ought to have been entitled to automatic British citizenship at birth, and as such should not be deported to Jamaica. The Home Secretary took the decision to issue a deportation order when the appellant was convicted of manslaughter.
The appellant, Mr Johnson, was born in Jamaica in 1985 and moved to the United Kingdom aged four. His father was a British citizen, but because his parents were unmarried and his mother was not a British citizen, the nationality laws in place at the time did not permit him to acquire British citizenship at birth. Mr Johnson was granted indefinite leave to remain in the United Kingdom in 1992. He never applied for permanent citizenship, despite this being possible upon proof of paternity since 1987. A legal change in 2006 entitled illegitimate children with a British parent to British citizenship, but this did not operate retrospectively.
Mr Johnson was convicted of manslaughter in 2008, and the Home Secretary responded to this conviction by issuing a deportation order.
Proceedings in the High Court and the Court of Appeal
Dingemans J in the High Court found that there had been a violation of ECHR, art 14 in conjunction with art 8, as Mr Johnson had been treated differently because he was illegitimate. He was of the view that this discrimination was continuing, and was the cause of the deportation order. He also quashed the certification of Mr Johnson’s human rights claim as “clearly unfounded”, as this was premised on him being a foreign criminal, a status that was contrary to ECHR, art 14 in conjunction with art 8.
The Court of Appeal overturned this decision, finding that at the time of Mr Johnson’s birth, the European Court of Human Rights had not recognised that denial of nationality to illegitimate children was discriminatory. It further held that even if the initial deprivation of nationality had been discriminatory, the fact it pre-dated the Human Rights Act 1998 meant it could not be relied upon for a remedy.
The appeal in the Supreme Court
The Supreme Court will be asked to consider whether the Human Rights Act 1998 can be applied to events which occurred prior to it coming into force, but which have continuing effect. It will be argued that Mr Johnson’s deportation order is a direct result of discriminatory legislation which did not permit him to acquire British citizenship at birth automatically.
It will also be asked to consider whether a declaration of incompatibility with the ECHR can be made where historic legislation (in this case the legislation that prevent Mr Johnson automatically acquiring British citizenship at birth) is at issue.
Finally, the Supreme Court will consider whether Mr Johnson’s human right’s claim that his rights to family life and freedom from discrimination are infringed by the deportation order are clearly unfounded.