The plague of custom

Prior to July 2006, those born out of wedlock were ill-used in British nationality law: The relationship of father and child was taken to exist only between a man and any legitimate child born to him, see section 50(9) of the British Nationality Act 1981 (‘the 1981 Act’) as enacted. The effect was to preclude the automatic acquisition of British citizenship and, in certain cases, registration as a British citizen on application. No similar requirement regulated whether the relationship between mother and child existed.

As regards a child born in the UK (or Falkland Islands, or on and after 21 May 2002 – any British overseas territory other than the Sovereign Base Areas in Cyprus), where the child’s father was able to transmit nationality by virtue of being settled in the UK or by virtue of being a British citizen, the child so born did not acquire British citizenship unless born legitimate (sections 1(1) and 50(9) of the 1981 Act) or unless subsequently legitimated by the marriage of her parents (section 47 of the 1981 Act).

As regards a child born outside the UK (and Falkland Islands, or on and after 21 May 2002 – all British overseas territories other than the Sovereign Base Areas in Cyprus), where the child’s father was able to transmit nationality by virtue of being a British citizen, the child so born did not acquire British citizenship unless born legitimate (sections 2(1) and 50(9) of the 1981 Act) or unless subsequently legitimated by the marriage of her parents (section 47 of the 1981 Act).

As regards a person applying for registration as a British citizen, where her father’s citizenship or immigration status was a determining factor of her eligibility for registration (for example in sections 1(3), 3(2), and 3(5) of the 1981 Act), the relationship between father and child did not exist and so she was not eligible for registration unless she was born legitimate (section 50(9) of the 1981 Act) or unless subsequently legitimated by the marriage of her parents (section 47 of the 1981 Act).

As a result of a developing awareness of the prejudice occasioned by this treatment of persons born out of wedlock, from 1987 onwards it was the policy of the Secretary of State, on an application for registration at discretion under s 3(1) of the 1981 Act, made by or on behalf of a minor whose unmarried father was a British citizen, to exercise discretion on satisfactory proof of paternity, where the minor was living in the UK and, if aged 16 or over, where she was of good character.

The curiosity of nations

In the 21^st Century, further steps have been taken to end the prejudicial discrimination against those born out of wedlock. For persons born on or after 1 July 2006, where reliance is placed on the relationship between father and child, the discriminatory treatment of those born illegitimate is removed, subject to satisfactory proof of paternity, see section 9 of the Nationality, Immigration and Asylum Act 2002, amending section 50 of the 1981 Act, and see the British Nationality (Proof of Paternity) Regulations 2006.

However, the Nationality, Immigration and Asylum Act 2002 made no provision to rectify the prejudice suffered by those born out of wedlock prior to July 2006. Prejudicial discrimination against those born illegitimate was to be found not only in the un-amended 1981 Act in force prior to 1 July 2006, but also in legislation regulating the acquisition of British nationality in earlier periods, such as the British Nationality Act 1948 and the British Nationality and Status of Aliens Act 1914. Those born out of wedlock prior to 1 July 2006 had to await further legislative innovation.

The ability to apply for registration as a British citizen, so as to rectify the prejudice suffered by being born out of wedlock, was introduced into the 1981 Act by the Immigration Act 2014, see sections 4E to 4J of the 1981 Act, in force from 6 April 2015. These provisions do not cater for all those prejudiced by the discrimination occasioned by earlier British nationality legislation as regards the acquisition of British citizenship, nor do they provide a route to registration for persons shut out by reason of illegitimacy from the acquisition of British overseas territories citizenship, British Overseas citizenship, British Subject status or British protected person status. To that extent there is unfinished business in making good the prejudice occasioned by legislative discrimination against those born out of wedlock. However, not only has the Immigration Act 2014 left unfinished business, in addition, it has introduced a further hurdle to be overleaped.

Where the Immigration Act 2014 amendments made provision in the 1981 Act for the registration as British citizens of persons born out of wedlock, that provision was made subject to satisfaction of a ‘good character’ test, see Schedule 9 of the Immigration Act 2014. The assessment of good character is demanding; a high standard is set, see R v Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763. The assessment involves a subjective evaluation. The Nationality Instructions provide detailed guidance as to the factors to which the Secretary of State will give consideration in making that assessment.

The introduction of a good character test was manifestly discriminatory and without justification. A person prejudiced by being shut out from the acquisition of British citizenship by virtue of being born out of wedlock, is required to establish to the satisfaction of the Secretary of State that she is of good character. No person born within wedlock (and thereby acquiring British citizenship at birth) has ever been subject to that same test before acquiring (and thereafter retaining) British citizenship. The introduction of the ‘good character’ test added a hurdle solely to be overleaped by those born out of wedlock.

Fine word, ‘legitimate!’

In the case of R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC56 the United Kingdom Supreme Court had cause to consider the prejudice in British nationality law against those born and remaining illegitimate. The legal issue in the case was whether it is compatible with the European Convention on Human Rights (‘ECHR’) to deny British citizenship to a child born to a British citizen father and a non-British mother, merely because her parents were not married to one another at the time of her birth or at any time thereafter. As the Court noted there are many benefits to being a British citizen, among which are the right to vote and the right to live and work in the UK without permission. In addition, a British citizen has the right not to be deported.

The case concerned whether the deportation of a Jamaican citizen from the UK to Jamaica, was compatible with human rights as protected by the ECHR. Mr Johnson had been born in Jamaica to a Jamaican citizen mother and a British citizen father. His parents were not married to each other at the time of his birth or thereafter. But for the prejudice in British nationality law at the time his birth against persons born illegitimate, he would have automatically acquired British citizenship at birth by descent from his father under section 2(1)(a) of the 1981 Act. However he was shut out from British citizenship on account of his being born and remaining illegitimate.

When Mr Johnson acquired a serious criminal record in the UK, as a person who was not a British citizen he satisfied the statutory criteria to be designated a ‘foreign criminal’. As such he was subject to the automatic deportation procedure found in the UK Borders Act 2007 (‘the 2007 Act’) and his presence in the UK was deemed to be not conducive to the public good. In such circumstances, the 2007 Act required the Secretary of State to make a deportation order unless an exception applied. One exception was where removal of a foreign criminal in pursuance of a deportation order would breach his Convention (ECHR) rights.

The Secretary of State declined to find that an exception applied and certified his human rights claim as clearly unfounded, thus precluding an in-country right of appeal to an immigration tribunal. Mr Johnson brought a claim by way of judicial review in the High Court against that decision. The claim succeeded in the High Court. However the Secretary of State appealed and prevailed in the Court of Appeal. On appeal against the latter’s judgment, Mr Johnson’s case reached the Supreme Court.

Why brand they us with base?

Article 15(1) of the Universal Declaration of Human Rights proclaims, blithely, that ‘Everyone has the right to nationality’. However, article 15(1) is found in a declaration rather than a treaty binding States and, further, it does not provide criteria as to which country is to assume the responsibility for providing the right in an individual case. In the European region the ECHR, as an international treaty by which States that are party to it are bound, makes no provision for a right to a nationality. Instead, protection of the right must be found among the provision made for other rights.

As the Supreme Court noted in Johnson, an attempt before the Commission (a Council of Europe body) to advance the right to a nationality by deploying article 14 (prohibition of discrimination in the enjoyment of Convention (ECHR) rights) to matters falling with the ambit of article 8 ECHR (right to respect for private and family life) foundered for the perceived want of a connection between the right to a nationality and the Convention rights protected under the ECHR, see K and W v the Netherlands (1985) 43 D and R 216. That said, in Karassev v Finland (1999) 28 EHRR CD132 an advance was made, with the acceptance by the Commission (a Council of Europe body) that arbitrary denial of citizenship might engage article 8 because of the impact of such a denial on the private life of the individual.

However, it was in Genovese v Malta (2011) 58 EHRR 25 that the quickening of the right to a nationality within article 14, taken together with article 8, took hold. The complainant, son a Maltese citizen father and a British citizen mother, was denied Maltese citizenship on account of his illegitimacy. That denial was held to be breach of article 14, read with article 8. In so holding the European Court of Human Rights noted that ‘the impact on the applicant’s social identity was such as to bring it within the general scope and ambit of [ ] article [8].’ Thereafter, having provided for citizenship by descent, Malta could not justify the discrimination.

In Johnson the UK Supreme Court held that denial of citizenship, having such an important impact on a person’s social identity, is within the ambit of article 8, so that the prohibition on discrimination found in article 14 is triggered. In addition, it held that the legislation that had shut Mr Johnson from acquiring British citizenship automatically at the time of his birth had a current and direct effect on him, as he was liable for deportation from the UK. This finding, as to the continuing effect of the prejudicial effect of historic legislation, will not have gone unnoticed by others seeking a measure of restitution for wrongs wrought in past times.

As for the application of article 14, the UK Supreme Court noted that it is not contested that birth out of wedlock is a status deserving of protection, see Marckx v Belgium (1979) 2 EHRR 330. That being so, it noted that a difference in treatment would be discriminatory in the absence of objective and reasonable justification, that is where it did not pursue a legitimate aim and where there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised, see Genovese v Malta at paragraph 43. Moreover, as the Court noted, the status of being born out of wedlock is one of a class of suspect grounds for which ‘very weighty reasons’ would be required to justify discrimination, see Inge v Austria (1987) 10 EHRR 394 at paragraph 41.

Why bastard? Wherefore base?

In Johnson the UK Supreme Court held that what needed to be justified was the current liability of Mr Johnson (and others like him), born and remaining illegitimate, to be deported when he would not be so liable where born legitimate or where subsequently legitimated by the marriage of his parents to each other. The Secretary of State advanced no justification for this difference in treatment. In the circumstances, the Supreme Court quashed the certificate stating that the human rights claim was clearly unfounded and in so doing cleared the way for an in-country appeal to an immigration tribunal against Mr Johnson’s deportation; an appeal that the Court considered was certain to succeed.

As regards the imposition of the ‘good character’ test to those persons applying to register as British citizens, after having been shut out from acquiring British citizenship by virtue of having been born out of wedlock, the Supreme Court observed that the good character test did not apply to those born legitimate and held that the difference in treatment could not be justified. To insist upon the imposition of the test would produce an unjustified discriminatory result: an applicant for registration who was judged not to be of good character would have been deprived of British citizenship because of an accident of birth, as had she been born legitimate no such test would have been applied to her.

Accordingly the Supreme Court made a declaration, under section 4 of the Human Rights Act 1998 (‘the 1998 Act’), that the legislation providing for the imposition of a good character test on persons born and remaining illegitimate, who were applying to register as British citizens under provisions found in sections 4F to 4I of the 1981 Act, was incompatible with rights protected under the ECHR. As a result, it is for Ministers to consider whether to take action to rectify the incompatibility by remedial order under section 10 of the 1998 Act or to rectify it by primary legislation.

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In Shakespeare’s King Lear (Act 1, Sc 2) Edmund, the illegitimate younger son of the Earl of Gloucester, considers his condition:

Thou, Nature, art my goddess; to thy law

My services are bound. Wherefore should I

Stand in the plague of custom, and permit

The curiosity of nations to deprive me?

For that I am some twelve or fourteen moonshines

Lag of a brother? Why bastard? Wherefore base?

When my dimensions are as well compact,

My mind as generous, and my shape as true,

As honest madam’s issue? Why brand they us

With base? with baseness? bastardy? Base, base?

Who, in the lusty stealth of nature, take

More composition and fierce quality

Than doth, within a dull, stale, tired bed,

Go to the creating a whole tribe of fops

Got ‘tween a sleep and wake? Well, then,

Legitimate Edgar, I must have your land.

Our father’s love is to the bastard Edmund

As to the legitimate. Fine word, ‘legitimate’!

Well, my legitimate, if this letter speed,

And my invention thrive, Edmund the base

Shall top the legitimate. I grow; I prosper:

Now, gods, stand up for bastards!