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Cite as: [2000] EWHC Admin 421

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QUEEN v. SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE MARIO MONTANA [2000] EWHC Admin 421 (23rd November, 2000)

Case No: C/2000/0386

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM THE HON. MR. JUSTICE TURNER
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 23 November 2000.

B e f o r e :
LORD JUSTICE SCHIEMANN
LORD JUSTICE TUCKEY
and
SIR SWINTON THOMAS
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	THE QUEEN - AND - THE SECRETARY OF STATE FOR THE HOME DEPARTMENT - EX PARTE -	Respondent
	MARIO MONTANA	Appellant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Miss Dinah Rose (instructed by Liberty) for the Appellant
Robin Tam (instructed by The Treasury Solicitor London SW1H 9JS) for the Respondent
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Judgment
As Approved by the Court
Crown Copyright ©

Introduction.
1. This is the judgment of the court. The case raises the question whether the policy adopted by the Secretary of State for exercising a statutory discretion to register a child as a British citizen is unlawful. It arises on appeal from Turner J. who decided that it was not when dismissing the Appellant, Mario Montana's application for judicial review of the Secretary of State's refusal to register his son Julian as a British citizen. The Judge also rejected the Appellant's contention that the Secretary of State's decision was irrational and/or taken contrary to the Appellant's legitimate expectation. The Appellant appeals with this court's permission.
The Statutory Framework.
2. Under the British Nationality Act 1981 a child may acquire British citizenship by birth or adoption in the United Kingdom (Section 1) by descent if born outside the United Kingdom (Section 2) or by registration (Section 3).
Section 2 (1) says :
A person born outside the United Kingdom ........ shall be a British citizen if at the time of the birth his father or mother
(a) is a British citizen otherwise than by descent ........
Section 3 (1) says :
If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.
This is the discretion involved in the instant case. Section 2(1) does not confer citizenship by descent where the child is illegitimate and only the father is British although it does so if the mother is British provided she is not a British citizen by descent. This is the effect of Section 50 which says :
(9) For the purposes of this Act -
(a) the relationship of mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but
(b) subject to Section 47 [which recognises legitimation by marriage] the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him;
and the expression "mother", "father" ........ shall be construed accordingly.
So a British father of an illegitimate child born abroad is not recognised as a father for the purposes of Section 2 but a British mother is; so is a British father of a legitimate child born abroad.
The Facts
3. The Appellant is a British citizen otherwise than by descent. Julian was born in Norway on 1st June 1992. His mother is Norwegian. She and the Appellant never married. They lived together in the United Kingdom for about 18 months after Julian was born but the mother then returned to Norway with Julian, where they still are, and the relationship subsequently ended. The Appellant has maintained regular contact with Julian since that time.
4. In March 1997 the Appellant applied to have Julian added to his passport. He was told that this was not possible unless Julian was a British citizen. The Appellant, who was a law student at the time, then wrote to the Home Secretary asking him to exercise his "residual discretion" to grant him the right to have Julian put on his passport and complained that the statutory provisions were discriminatory and therefore in breach of the European Convention on Human Rights.
5. The Immigration and Nationality Directorate replied on 26 June 1997. Their letter pointed out that for most purposes the distinction between legitimate and illegitimate children had been abolished by the Family Reform Act 1987 which provided for fathers and their illegitimate children resident or domiciled in England or Wales to obtain binding declarations of paternity from the courts. It continued :
Those changes were not applied to nationality matters, however, the principle (sic) reason being that the 1987 Act provisions were limited in scope to England and Wales and did not provide a satisfactory means of establishing the paternity of illegitimate children born elsewhere. The Government felt that it would be invidious, in the nationality context, to enact legislation benefitting children born in England and Wales but not those born in other parts of the United Kingdom and overseas. For the present, therefore, the position remains that an illegitimate child can only acquire British nationality through his or her mother (Section 50 (9), British Nationality Act 1981).
The Government does not accept that the nationality legislation in this respect contravenes the European Convention on Human Rights. The Home Secretary will normally exercise his very wide discretionary power under the 1981 Act to confer citizenship on minors by registration so as to ensure, as far as possible, that illegitimate children of British citizen fathers are not disadvantaged where satisfactory evidence of paternity is available.
It is the Appellant's contention that this letter gave rise to a legitimate expectation that provided he supplied satisfactory evidence of paternity the Secretary of State would register Julian as a British citizen in the absence of exceptional circumstances.
6. The Appellant replied to this letter on 8 August 1997 submitting proof of paternity (which is not in dispute) saying :
I trust that this will be satisfactory evidence of my paternal relationship with Julian and look forward to a favourable reply from your department. However, should you be unable to grant me this request could you provide me with the reasons for your decision.
7. The IND then wrote to the Appellant on 12 August 1997 enclosing the appropriate application form for registration under Section 3(1) of the Act together with a guidance leaflet concluding :
I regret I cannot offer you any guarantee that an application would be successful as the success of any application will depend on the outcome of enquiries made into it.
Dealing with children in Julian's position the guidance leaflet says :
It is not possible to set out all the circumstances in which the Home Secretary would normally agree to registration, but consideration is given to :
* The child's connection with the United Kingdom
* Where the child's future is likely to lie.
* The views of the parents.
* The nationality of the parents.
A number of the questions on the form were directed to these points.
8. In his application the Appellant said that he felt that Julian should have British citizenship because it would avoid unnecessary immigration questions and questions as to his parental rights when he travelled with him. He wanted Julian to have a British education after the age of twelve and to be able to bring Julian back to England without restriction if the mother died. He said that the mother objected to his application because she was concerned that he might bring Julian back to England without her consent and then invoke the Parental Responsibility agreement made under the Children Act 1989 which he had registered with the High Court in England.
9. The decision refusing registration was made by letter of 13 January 1998. It said :
The registration of minors under [Section 3(1)] is discretionary. We would normally expect the applicant to demonstrate that the minor has close links to the United Kingdom by way of his residence and that his future intentions lie here. As Julian lives with his mother in Norway and will presumably continue to do so for the foreseeable future, this is not the case.
It is also our policy that where both parents have parental responsibility and regular contact with a child, consent of both parents to the registration is obtained. You have stated in your letter that Julian's mother would not give her consent.
Having carefully considered the application to see if there were sufficient grounds for treating it exceptionally, taking into account the above points, it was decided that none could be found and that Julian, being of the same nationality as his mother, would not be disadvantaged. The application has therefore been refused.
10. The application for Judicial Review followed further correspondence between the Appellant's solicitors and the IND. The Secretary of State's policy was explained in an affidavit from Mr. Hebblewhite, a higher executive officer employed by the IND with responsibility for nationality matters. He said :
The policy adopted by the Secretary of State towards the exercise of his discretion is that he will normally exercise his discretion so as to ensure, as far as possible, the child is not disadvantaged by being the illegitimate child of a British citizen father. However, the Secretary of State considers all the circumstances of every case before deciding whether to exercise the discretion in favour of registration, including in particular two factors which he regards as very important.
Those factors were whether both parents of the child consented to the registration and the child's links with the United Kingdom. The reasons for their importance were explained at some length in the affidavit.
The Issues.
11. Before the Judge the Appellant's challenge to the Secretary of State's policy and his decision in this case was confined to the contention that he had misdirected himself as to the application and effect of Articles 8 and 14 of the European Convention on Human Rights. The argument was that the refusal of citizenship was of itself a failure to respect or an interference with the Appellant's and Julian's rights to family life (Article 8) and, in any event, discriminated against them on the grounds of sex and birth (Article 14) within the ambit of their Article 8 rights. Before us Lord Lester, QC, who now appears for the Appellant, has broadened the attack. He contends that comparable and perhaps less restricted common law rights equivalent to those conferred by Articles 8 and 14 have now been recognised by the House of Lords. The wide discretion conferred by Section 3 (1) of the Act has to be "read down" with those (and the Convention) rights in mind. On either basis the Secretary of State's policy and his decision in this case is unlawful and/or irrational because they contravene those rights. Not only did they discriminate against the Appellant because of his sex, but against Julian and the Appellant because of the former's illegitimate birth. It is convenient to consider the issues raised by these contentions first. The abuse of process (legitimate expectation) issue can be considered separately.
Breach of Common Law / Convention Rights?
12. The first House of Lords case relied on by Lord Lester is R -v- Secretary of State for the Home Department ex p. Simms [1999] 3 WLR 328. In that case the court was concerned with the legality of prison standing orders which imposed a blanket ban on interviews between prisoners and the press alleged to be an excessive interference with the right to free speech. Invoking the common law "principle of legality" the House decided that the rules, even if unambiguous, could not override the prisoners fundamental and basic rights in the absence of justification for them. (p. 340 E-H and 341 F-342C). The other cases are Matadeen -v- Pointu [1999] 1 AC 98 (P.C.) and Hall and Co. -v- Simons [2000] 3 WLR 543 where Lord Hoffman recognised the "principle of equality" - "treating like cases alike and unlike cases differently" unless there is sound justification for not doing so - as a fundamental principle of justice (p.109 C-D; 560 E-F).
13. Articles 8 and 14 of the Convention so far as material say :
8.1 Everyone has the right to respect for his family life........
8.2 There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedom of others.
14. The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on a ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
14. One reason why Lord Lester relied on the common law as well as the Convention was to meet the Secretary of State's argument that the case had to be decided on the law before The Human Rights Act 1998 came into force because the decision in question was made before that time. We do not think it would be right to do this. The Secretary of State contended at the time of the decision and still contends that it complied with the Convention. It would be unrealistic for us to determine this appeal on any other basis since if we simply said that the decision complied with the pre-Act law the matter would be back before the courts in no time at all. Moreover, as Lord Hope of Craighead pointed out in R -v- Home Secretary ex. p. Launder [1997] 1 WLR 839, 867e:
If the applicant is to have an effective remedy against the decision which is flawed because the decision maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument."
15. The common law principles invoked by Lord Lester are broadly stated in the decisions he relies on. But on analysis we do not think they add much, if anything, to the Appellant's Convention rights. The principle of legality is apt to include the right to family life, the interference with which has to be justified on Article 8.2 grounds. The principle of equality is also obviously not unlimited since inequality may be justified.
16. We turn then to consider the case based on Article 8. Here it is common ground that the relationship and contact which a father has with his illegitimate child is comprised within the concept of family life. The question is whether the refusal of citizenship has failed to respect or interfered with that family life.
17. Lord Lester submits that the concept of family life includes the right to have the same citizenship as the parent in order for family ties to develop normally and to enable the child to be integrated into the family. A refusal to recognise the bond between the Appellant and Julian (by refusing to regard the Appellant as Julian's father for the purpose of the 1981 Act or to facilitate the grant of citizenship to his child) constitutes an interference with his Article 8 rights. Lord Lester pointed also to the advantages of citizenship relied on by the Appellant in the application. He illustrated his argument by reference to a number of cases (Marckx -v- Belgium [1979] 2 EHRR 330, Kroon -v- Netherlands [1994] 19 EHRR 263 and Johnston -v- Ireland [1985] 9 EHRR 203) where The European Court of Human Rights has found violations of Article 8.
18. Mr. Tam, Counsel for The Secretary of State, submitted that the refusal of British citizenship cannot in itself be an interference with family life. British citizenship is a substantive legal status to which rights and obligations attach. Any interference with family life can only arise incidentally from withholding citizenship. In the instant case there has been no such interference because the Appellant's relationship and contact with Julian has not been and will not be affected for the foreseeable future by his or Julian's nationality. If the situation changes it is open to the Appellant to make a further application at which time, in accordance with his policy, the Secretary of State will be able to consider whether Julian will indeed be "disadvantaged" by not being a British citizen. Mr. Tam submits that the cases relied upon by Lord Lester show that The European Court of Human Rights looks very much to the practical consequences of the matters complained of in the particular case to determine whether in fact there has been an interference with family life. There is no case where the mere fact that citizenship has been refused has been held to be a breach of Article 8.
19. We accept Mr. Tam's submissions. The mere fact that citizenship is withheld cannot of itself be either a failure to respect or interference with family life. Common citizenship is not a necessary component of family life. A family unit may consist of people of different citizenships living together who experienced no consequent disadvantages. There may be incidental practical disadvantages flowing from lack of citizenship, but for the purposes of Article 8 these cannot be considered in abstract. The effect in any individual case can only be understood in the light of the circumstances of that case. The Secretary of State's policy to ensure so far as is possible that a child in Julian's position is "not disadvantaged" is, we think, an adequate recognition of this fact. In terms of Article 8 a policy which takes account of the attitude of both parents and links with the United Kingdom is entirely justified.
20. Looking at the facts of this case, like the Judge, we do not think it can be said that there has been any interference with the Appellant's or Julian's right to family life as a result of the Secretary of State's decision. The Appellant's relationship and regular contact with Julian has not been affected. The withholding of British nationality to a child who already has Norwegian nationality could hardly be expected to do so. The perceived advantages of British citizenship put forward by the Appellant are, we think, more apparent than real in this case. As an EEA national Julian has the same right to free movement as any EU national. Whether he is a British citizen or a Norwegian citizen he must carry a separate passport or national identity card. As an EEA national Julian does not have an unqualified right to remain in the United Kingdom unless he becomes a student or has a job, although he would have broad rights here to equal treatment in the provision of access to employment, social security, vocational training and housing. In any event there is no present plan for Julian to reside in the United Kingdom. The Appellant's hope that he will do so is dependent on the mother's consent or, failing that, the decision of a family court. If the mother died there would be no difficulty in Julian coming to England assuming that the appropriate court decided that it was in his best interests to do so. This and any other change of circumstances could form the basis of a further application for citizenship.
21. So we turn to consider the effect of Article 8 taken with Article 14. It is common ground that in order for discrimination to contravene Article 14 the case must fall within the ambit of one of the substantive rights, in this case Article 8, but there is no requirement for an actual breach of the substantive right (Abdulaziz -v- United Kingdom [1985] 7 EHRR 471 para. 71). We are prepared to assume without deciding that the Secretary of State's policy and his decision in this case are within the ambit of Article 8. This makes it unnecessary to consider the case on the basis of some free-standing rule against discrimination. The issue is whether there has been discrimination and if so whether it is justified.
22. Lord Lester's submissions are simple. A British mother of an illegitimate child born abroad is treated more favourably than a British father. The father of a legitimate child born abroad is treated more favourably than the father of an illegitimate child. The Appellant and, through him, Julian have therefore been discriminated against on the grounds of sex and birth. The only justification advanced for such discrimination (difficulty in proving paternity) does not apply to them. The principle of equal treatment therefore required the Secretary of State to exercise his discretion to grant citizenship to Julian. His policy reasons for not doing so (the other parent's objection and insufficient links with the United Kingdom) do not and cannot justify the discrimination since they do not stand in the way of citizenship being acquired by the illegitimate children of British mothers and the legitimate children of British fathers.
23. Mr. Tam draws a distinction between differential treatment and discrimination. International law recognises that nationality and immigration matters are within a state's reserved domain. Virtually all such legislation could be regarded as discriminatory since it frequently relies on distinctions based on marital status, national origin or birth. Differential treatment of persons for nationality and immigration purposes cannot therefore in itself be unacceptable under international law. Lord Lester did not accept this argument. He submitted that even in such legislation discrimination had to be justifed. He relied on Abdulaziz, where the European Court of Human Rights held that the United Kingdom's immigration rules which permitted wives but not husbands of those settled here to join them, were discriminatory in the absence of objective and reasonable justification. We are inclined to think that Lord Lester is right about this, but in the light of our conclusions which follow it is not necessary to decide the point in this case.
24. Mr. Tam submits that there is no discrimination in this case. It is the statute which produces the results complained of and there is no challenge to the statute itself. Thus, Section 2(1) confers citizenship on (among others) the illegitimate children of British mothers and the legitimate children of British fathers born abroad provided, in either case, that the parent is not a British citizen by descent. Such children (and their parents) have no choice in the matter. Citizenship is acquired at birth. The Secretary of State has no role to play in this. Section 3(1) on the other hand enables an application to be made on behalf of any child who is not a citizen. The applicant has a choice as to whether or not to apply and the Secretary of State has a discretion whether or not to register. Citizenship is acquired from the date of registration. There is therefore no true comparison between those who acquire citizenship under Section 2 and those who apply for it under Section 3 and no scope therefore for saying that there is discrimination. Further, the Secretary of State's role is confined to exercising the discretion under Section 3(1) and the way in which he exercises that discretion is not in any way discriminatory. The Appellant is effectively contending that, in a case of this kind where paternity is not in issue, the Secretary of State is required to grant citizenship on request. If this be right there is no discretion at all, contrary to Parliament's obvious intention.
25. Lord Lester responds to these arguments by saying that for the purpose of considering whether there has been discrimination it is legitimate to compare the position of those who acquire citizenship automatically and those who have the opportunity to apply for it. He is not attacking the statute itself but saying only that the wide discretion conferred under Section 3(1) should be exercised lawfully so as to avoid discrimination beyond the limits within which it can be objectively and reasonably justified. It is no answer for the Secretary of State to say that he is only exercising that discretion. This is because the Convention places an obligation on the Government of the United Kingdom as a whole not to discriminate without justification and the Secretary of State is aware of the discrimination complained of in this case.
26. We think Mr. Tam is right about this. There is a real difference between Sections 2 and 3 of the Act which make it inappropriate to compare the positions of those who acquire citizenship as of right at birth with those who are given the opportunity to apply for citizenship at any time during a child's minority. In other words those who acquire citizenship under Section 2 are not true comparators with those who may apply for it under Section 3. It follows that in exercising the discretion under Section 3(1) the Secretary of State does not need to have in mind the consequences of Section 2(1). The way in which he exercises that discretion is not otherwise objectionable. Any other conclusion would mean, as Lord Lester virtually conceded, that in a case such as the present the Secretary of State had no discretion and was bound to accede to the request for registration on demand if paternity was not in issue. That cannot be what Parliament intended. The Act has remained in its present form despite the fact that it could have been amended when the Family Law Reform Act 1987 and The Children Act 1989 were passed.
27. It follows from the conclusions which we have reached above that the Appellant cannot succeed on the ground of irrationality either. It would only have been necessary to consider this as a discrete ground of challenge if we had concluded that Article 14 was not engaged in this case.
Legitimate Expectation.
28. There is no dispute about the requirements for a challenge based on legitimate expectation. What is required is a clear, unambiguous and unqualified representation that the authority concerned will act in a certain way and that the representation has been so understood. Most cases of an enforceable expectation of a substantial benefit are likely to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract. (See R -v- North and East Devon Health Authority ex p. Coughlan [2000] 2 WLR 623 p. 646A). The Appellant submits that these conditions were met by the representations contained in the letter of 26th June 1997 (para.5); the Secretary of State submits that they were not.
29. We do not think they were. The statement in the letter accords precisely with what Mr. Hebblewhite said the Secretary of State's policy was (para. 10). The use of the word "disadvantage" is, as Lord Lester conceded, ambiguous. Does it mean disadvantaged compared with those who acquire citizenship as of right under Section 2(1) or simply disadvantaged in practical terms as a result of not being British citizens ? The statements made in the letter are in general terms and looking at the letter as a whole we do not think one can spell out of it a clear, unambiguous and unqualified promise that if the Appellant provided proof of paternity, Julian would be registered as a citizen. Certainly, by the time he made the application after receiving the Secretary of State's letter of 12 August 1997 and the Guidance Leaflet (para.7) the Appellant could have had no such expectation.
Conclusion.
30. For the reasons which we have given this appeal is dismissed.
Order: Dismissed with costs awarded to Respondents. Leave to appeal to House of Lords.
(Order does not form part of approved judgment)0

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