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Unlawful to discriminate against offenders who are labelled foreign nationals because their parents did not marry

R (o.t.a. Johnson) v Secretary of State for the Home Department [2016] UKSC 56

The Supreme Court ruled that there was no justification for deporting someone who had committed a series of serious offences on the basis that he was a foreign national simply because his parents had never married. 

The applicant had been born to a British father and Jamaican mother who had never married.  No application had ever been made to register him as a British citizen.  The Secretary of State attempted to deport the applicant after he committed a series of offences.  Had the applicant’s parents married or applied for him to have British citizenship, it would not have been possible to deport him.  The applicant was no longer eligible to apply due to the requirement to be of good character and due to his convictions, he longer satisfied this critera.

He appealed on the basis that a statutory exception applied, which would prevent the Secretary of State from deporting him.  An exception to deportation would apply where removal of a foreign criminal in pursuance of the deportation order would breach a person’s Convention rights.

The First Tier Tribunal found that the applicant’s deportation was proportionate and lawful in so far as his rights to private and family life were concerned.  It remitted the question as to whether deportation was unlawfully discriminatory, given that the Claimant would not have been a foreign national had he not been born out of wedlock, to the Secretary of State.  The Secretary of State decided that the order was not unlawfully discriminatory.  The applicant appealed and relied on his right to private and family life and to protection from discrimination in the enjoyment of that right. 

The Supreme Court ruled that birth outside wedlock is a status for the purposes of Article 14 and very weighty reasons are required before discrimination on that basis can be lawful.  It also found that it was not possible to justify deporting those whose parents never married, where people in the same situation with married parents would not be liable for deportation.  The Court also found that to require an individual born out of wedlock to satisfy a good character test to be registered as a British citizen was unlawful discrimination.  The Supreme Court therefore made a declaration that this provision was incompatible with the European Convention on Human Rights.

Read UK Human Rights Blog here.

Criminal Law, Deportation