K (A Child) v The Secretary of State for the Home Department

Factual and Procedural Background

The Claimant, a four-year-old girl born in The City on 29 May 2014, seeks recognition as a British citizen through her biological father, a British citizen named on her birth certificate. At the time of her birth, her mother, a non-British national without settled status, was married to another non-British man. The Secretary of State for the Home Department revoked the Claimant's British passport on the basis that, under section 50(9A)(a) of the British Nationality Act 1981 ("the BNA 1981"), the mother's husband at the time of birth is deemed the child's father for nationality purposes, thereby excluding the biological father.

The Claimant challenged the revocation decision by judicial review. Permission was granted by a Deputy High Court Judge. The case was treated as a lead case with other similar cases stayed behind it. The central issue concerns the statutory interpretation of section 50(9A) of the BNA 1981 and its compatibility with the European Convention on Human Rights ("ECHR").

Legal Issues Presented

1. Whether, for the purposes of the BNA 1981, the Claimant can be treated as the child of her biological British father rather than the non-British man to whom her mother was married at the time of her birth.
2. Whether section 50(9A)(a) of the BNA 1981, which deems the mother's husband to be the child's father, operates as a conclusive presumption or a rebuttable one.
3. Whether the statutory scheme breaches the Claimant's rights under Articles 8 and/or 14 of the ECHR, concerning respect for private and family life and prohibition of discrimination.
4. Whether section 3 of the Human Rights Act 1998 ("HRA") permits a reading down of section 50(9A) of the BNA 1981 to make it compatible with the ECHR.
5. Whether a declaration of incompatibility under section 4 of the HRA is appropriate.

Arguments of the Parties

Appellant's Arguments

• The definition of 'father' in section 50(9A) should be read as a rebuttable presumption, allowing proof to displace the presumption that the mother's husband is the father.
• This reading is necessary to avoid breach of Articles 8 and 14 ECHR rights, specifically the right to be recognized as the biological father's child and to acquire his nationality.
• Section 3 HRA allows the court to read down the legislation compatibly with Convention rights.
• If reading down is not possible, the court should declare the legislation incompatible with the ECHR under section 4 HRA.

Defendant's Arguments

• The statutory language of section 50(9A) is clear and conclusive: the mother's husband at the time of birth is deemed the father, and this cannot be displaced by biological proof.
• The legislation aims to provide legal certainty and clarity as to parentage for nationality purposes, limiting a child to two parents, one of whom is the birth mother.
• Article 14 ECHR is not engaged because the distinction is not discrimination on grounds of birth but based on the marital status of the mother at birth.
• Even if discrimination arises, it is justified by legitimate social policy aims and proportionate, given the discretion available under section 3(1) of the BNA 1981 to grant nationality in exceptional cases.
• Section 3 HRA cannot be used to read down the legislation without amending it, which is beyond the court’s power.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the significance of the question of who is deemed a child's father under the BNA 1981 for nationality purposes. It examined the statutory framework, particularly section 50(9A), which prioritizes the mother's husband at birth as the child's father, followed by persons treated as father under assisted reproduction legislation, and finally persons satisfying prescribed proof of paternity requirements.

The court accepted that the legislation aims to provide legal certainty and restrict a child to two parents for nationality purposes, one being the birth mother. It noted the social policy considerations underpinning this structure, including the complexities arising from assisted conception.

On the human rights analysis, the court found that Article 14 ECHR is engaged due to differential treatment based on the child's status—whether the mother was married to someone other than the biological father at birth. This distinction affects the child's right to acquire their biological father's nationality under Article 8.

The court held that the current legal scheme discriminates against children in the Claimant's position by denying them a right to nationality through their biological father, relegating them instead to a discretionary grant under section 3 of the BNA 1981. This discretionary scheme does not secure equal enjoyment of rights, as it permits refusal based on considerations unrelated to proof of paternity.

Despite recognizing this discrimination, the court concluded that the statutory language of section 50(9A) is clear and unambiguous, giving conclusive priority to the mother's husband as the father. The court found it impossible to read down the provision compatibly with the ECHR without effectively amending the statute, which is beyond judicial authority.

Accordingly, the court determined that the decision to revoke the Claimant's passport was lawful under the existing statutory scheme, as the Claimant was not entitled to British citizenship by birth under the BNA 1981.

However, the court exercised its discretion under section 4(2) of the HRA to issue a declaration of incompatibility, finding that the relevant provisions of section 50(9A) are incompatible with Articles 8 and 14 ECHR in cases like the Claimant's, where the biological father cannot be recognized as the father for nationality purposes solely because the mother was married to another man at the time of birth.

Holding and Implications

Holding: The court held that section 50(9A) of the British Nationality Act 1981, as currently applied, is incompatible with Articles 8 and 14 of the European Convention on Human Rights in cases where a child born to a mother married to a man other than the biological father is denied the right to acquire British nationality through the biological father as of right. However, the court found that it could not read down the legislation to make it compatible and therefore issued a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Implications: The immediate effect is that the decision to revoke the Claimant's British passport was lawful under the current statutory framework, but the declaration of incompatibility signals a need for legislative reform to address the discriminatory effect identified. No new legal precedent was established beyond the declaration of incompatibility, and the discretion under section 3 of the BNA 1981 remains the only route for children in the Claimant's position to acquire British nationality at present.