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Court agrees decision to treat claimant differently due to marital status of parents amounted to unjustified discrimination

Johnson, R (on the application of) v The Secretary of State for the Home Department [2014] EWHC 2386 (Admin)

Related Member(s):
Hugh Southey QC
Related Practice Area(s):
Discrimination and Equality, Human Rights, Immigration, Asylum and Free Movement
Court:

The claimant was a Jamaican national born in Jamaica in 1985. He was born out of wedlock to a Jamaican mother and a British father and pursuant to the British Nationality Act 1981, s 50(9) he was not automatically a British citizen as his parents were not married. It was common ground that if his parents were married when he was born he would have automatically been a British citizen.

Nonetheless the claimant had been resident in the UK since 1991 and had been granted indefinite leave to remain (ILR) in the UK. During his time in the UK the claimant was convicted of serious criminal offences and the SSHD signed a deportation order in respect of him.

The claimant resisted the deportation order on the basis that he was not a foreign criminal and that he was, or should have been, a British citizen. The claimant argued that the failure to automatically register him as a British citizen when he was born amounted to unjustified discrimination and a breach of EHCR, art 14 in conjunction with ECHR, art 8.

Held, allowing the appeal, the Court agreed that the decision to treat him differently because of the marital status of his parents amounted to unjustified discrimination, Genovese v Malta (App No. 53124/09) applied. The Court noted that it was not permissible to treat children born out of wedlock as having no link with their fathers.

The Court, however, was circumspect with what relief to grant and left it to the parties to agree between themselves, but if the parties could not agree a further hearing will be held.

Hugh Southey QC was involved in this case.