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R(K) v SSHD  EWHC 1834 (Admin): Who your father is for the purposes of British Nationality
20 Jul 2018
Angelina Nicolaou of One Pump Court summarises the recent High Court decision of R(K) v SSHD, concerning the impact of legitimacy principles on the British Nationality provisions. K was represented by Alex Burrett of 1 Pump Court and the team at Law Lane Solicitors. Angelina shadowed and assisted on the case during her first six of pupillage.
Under section 1(1) of the British Nationality Act (BNA) 1981 a person born in the United Kingdom or qualifying territory is automatically a British citizen at birth if at the time of birth their mother or father was a British citizen or settled in the United Kingdom or on that territory. In modern society where relationships and family structures are becoming less rigid and more complex, the legal position as to who someone’s “deemed father” is has become highly relevant for the purposes of acquiring British nationality. The case of K challenged the position taken by the Secretary of State to refuse to acknowledge K’s biological father (who was British) as her father for the purposes of the BNA 1981, thus depriving her of her automatic British nationality.
K was born in the UK, and at the time of the hearing was four years old. She was born to a Pakistani mother and a British father, who was named on her birth certificate. K obtained a British passport on the basis that her father was British. This passport was later revoked by Her Majesty’s Passport Office on 12 June 2017 as they held that they had issued the passport in error on the mistaken basis that K was a British citizen when, actually, under the provisions of the British Nationality Act, K’s father was deemed to be the husband of her mother, a Pakistani national, not her actual biological father.
The legislation seemed to suggest that there is a hierarchy to deemed parentage, with the man who is married to the mother being first place for deemed fatherhood, and in the event that there is no married partner, the biological father as some sort of backup alternative. In many cases this does not operate as a problem as the man married to the mother is often the biological father. In some cases of course, given the realities of modern life, this hierarchy operates to provide absurd and nonsensical results. K’s case highlighted just that, and she sought to challenge the decision.
Section 50(9A) of BNA 1981 provides:
“For the purposes of this Act, a child’s father is –
(a) The husband, at the time of the child’s birth, of the woman who gives birth to the child, or
(b) Where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1991 or section 35or 36 of the Human Fertilisation and Embryology Act 2008, that person, or
(ba) Where a person is treated as the parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or
(c) Where none of the paragraphs (a) to (ba) apply, a person who satisfies prescribed requirements to paternity.”
In the case of K, her biological father could satisfy the prescribed requirements to paternity under subsection (c). However, the statutory language seemed to provide that he could not be the deemed father unless none of the paragraphs (a) to (ba) applied. In K’s case, they plainly did apply, as her mother was married to a man.
K’s challenge was that she was being discriminated against on the grounds of ‘birth’. Creating a statutory hierarchy founded on principles of legitimacy which rigidly favours fathers through marriage over the biological reality must be discriminating against her and depriving her of what would otherwise be automatic had she not been born out of wedlock.
K submitted that section 50(9A) of BNA 1981 should be read down in accordance with section 3 of the Human Rights Act (HRA) 1998, so that it is compatible with Article 8 and Article 14 of the European Convention of Human Rights (ECHR). This would effectively mean that section 50(9A) could be interpreted as placing a ‘rebuttable presumption’ of fatherhood which could be displaced by proof that another man is the father. In K’s case, providing evidence of paternity in relation to her biological father would work to rebut the presumption that her father is actually the man her mother was married to at the time of her birth.
The Secretary of State accepted that conferral of citizenship was within the ambit of Article 8 ECHR, however defended the claim on the following bases:
(i) Article 14 was not engaged as there was no discrimination on grounds of ‘birth’, but rather because of the fact that the mother was married at the time of the child’s birth. If the mother had not been married, K could have obtained automatic citizenship notwithstanding the fact that she had been born out of wedlock.
(ii) In the alternative, if Article 14 was engaged, in many circumstances automatic conferral of citizenship may not be a benefit.
(iii) In the event that there is discrimination, it is proportionate and justified by the legitimate aim of ensuring that there is clarity as to who the child’s father is.
(iv) The statutory wording of section 50(9A) BNA is so unambiguous that, even in the event that it was held to be discriminatory it could not be read down by section 3, but rather a declaration of incompatibility would have to be made undersection 4 HRA 1998.
Judgment handed down on 18 July 2018
Helen Mountfield QC (sitting as a Deputy High Court Judge) did not accept the Secretary of State’s submission that Article 14 was not engaged. Drawing on the notion that the ECHR is a living instrument she found that discrimination on the grounds of birth should be wide enough to include other “unchosen circumstances of one’s birth”. In the alternative she also found that K’s situation fell into the category of “other status” for the purposes of Article 14, which has a broad interpretive approach in order to reflect each person’s fundamental equality in dignity and rights.
The Secretary of State’s second submission that there was no discrimination was also rejected. The submission made was premised on the notion that in order for something to be discriminatory it must withhold the conferring of a ‘benefit’ on an individual on the basis of a characteristic. Examples were
given at the hearing that circumstances where an individual is born as a result of rape, or after a brief affair, or in instances where dual nationality is problematic, and it was held that in such circumstances automatic acquisition of British citizenship would not be a benefit. This submission could not stand given that the principles of discrimination under Article 14 do not require ‘detriment’. Article 14 merely requires a ‘difference’ in treatment, and is therefore much wider than the scope provided under the Equality Act 2010.
In assessing the Secretary of State’s justification of the discrimination Helen Mountfield QC accepted that it was a legitimate goal of the social policy to decide that for the purposes of establishing deemed parentage there should be legal clarity. However, in line with the principle of discrimination it was held that the provision of section 50(9A) was not the ‘least restrictive means’ of achieving this goal.
The palpable sense of unfairness resulting from the statutory language can best be summed up by the comment made by Helen Mountfield QC at paragraph 83:
“… I do not understand why a child whose mother applies, on her behalf, on the basis of the same proof of paternity, should not have the same right to have that man recognised as her father, simply because of the fact that her mother was married to someone else at the relevant time: a matter over which the child has no control, and which may be irrelevant to her life. The child whose mother was married to a man other than her biological father at the time of her birth has no right to her father’s nationality; she is instead dependent upon the Secretary of State’s discretion to decide whether to confer it upon her”.
The judgment continues at paragraph 87:
“…In my judgment, in this respect, the current law does not achieve a fair balance between the interests of the child wishing to acquire his or her father’s nationality and the Defendant’s identified social policy goals”.
It was held that applying to have a presumption of fatherhood rebutted through providing proof of paternity would not harm the legitimate aim of only having two parents for the purposes of legal certainty.
It was therefore found to be the case that the scheme of section 50(9A) of BNA 1981 breaches K’s rights under Article 14 ECHR read with Article 8.
Interestingly, it was held that, contrary to K’s submission, section 50(9A) could not be read down using section 3 HRA 1998, as this would do violence to the statutory language in circumstances where the wording is clear and unambiguous. The only available remedy was held to be a declaration of incompatibility under section 4(2) HRA 1998.
Section 50(9A) will therefore have to be re-visited in light of this judgment, as the provision has clearly operated to discriminate against K. However as a practical result for K, the decision of Her Majesty’s Passport Office to revoke her passport was actually a correct interpretation of the discriminatory law as it stands under section 50(9A).
The government has recently undergone a legislative amendment exercise following a declaration of incompatibility made by the Supreme Court in the case of Johnson v Secretary of State for the Home Department  UKSC 56. In this case it was found to be incompatible with Article 14, read with Article 8 ECHR, for a good character requirement to be imposed on individuals who would have automatically acquired citizenship at birth but for their parents’ marital status. When confronted with
this declaration the government opted for the making of a remedial order under section 10 HRA rather than amending the law by way of primary legislation, as awaiting the opportunity for a Bill to be considered would cause significant delay. The remedial order was laid in March 2018 and after parliamentary scrutiny is hoped to come into effect in early 2019.
A side note about pleading points
An aspect of this judgment which is particularly worthy of note for practitioners is a point made in the addendum, which takes issue with the potential routine practice of the Defendant Secretary of State to invite the Administrative Court to refuse permission to apply for judicial review and to certify a case as ‘totally without merit’, without properly engaging with the realities of whether a claim is arguable or not.
In the case of K, in the Acknowledgment of Service the Defendant did so invite the court to certify the case as totally without merit, however permission was granted as it was held that the case crossed the arguability threshold. Not only was this case clearly arguable, but it was a matter of wider public importance, demonstrated by the large volume of cases making the same or a similar challenge, (so much so that the Defendant made an application for K to be a ‘lead case’, and to stay the other cases behind it). Helen Mountfield QC went as far as to say that it may be an abuse of process to assert that a claim is totally without merit in circumstances where the claim is not obviously hopeless and abusive. There is a clear steer from this addendum that if a Defendant is to go as far as inviting the court to certify, it should be prepared to justify specifically why this is the case. This is a welcomed criticism for Claimant practitioners who regularly see arguable claims being defended in such a manner.
The judgment can be accessed online at: http://www.bailii.org/ew/cases/EWHC/Admin/2018/1834.htmlBack to News