The applicant was illegitimate, born to a British mother and a Maltese father. Paternity had been established scientifically and in judicial proceedings. The father refused to recognise his son on the birth certificate, and the applicant’s mother brought proceedings which resulted in the birth certificate being amended to show paternity. The applicant then applied for Maltese citizenship, which was denied on the basis that the applicant was illegitimate.
Held: There had been a violation of article 14 in conjunction with article 8 regarding the difference in treatment based upon birth out of wedlock: ‘While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise of a violation of article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article’. At paragraph 34 the Court noted that as Maltese legislation had granted the right to citizenship by descent and established a procedure to that end the State ‘must ensure that the right is secured without discrimination’. At paragraph 47 recorded that the submission on behalf of Malta was that a mother is always certain, a father is not. The Court noted that it ‘cannot accept this argument . . even in cases such as the present where the father was known . . even in cases such as the present where the father was known and registered on the birth certificate, the distinction arising from the provisions of the Citizenship Act persisted.’
It is not permissible to treat children born out of wedlock as having no link with their parents, and it is not permissible to rely on the submission that ‘while a mother is always certain, a father is not’.
‘While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article.’ Malta was not obliged to recognise the right to citizenship by descent, but as it did so, it had to ensure that the right was secured without discrimination. The discrimination could not be justified by the argument that ‘motherhood is certain, whereas fatherhood is not’: Paternity in this case having been established scientifically and in legal proceedings.
Citations:
53124/09, [2011] ECHR 1590, [2012] 1 FLR 10, [2012] Fam Law 20, [2011] Eq LR 1282, (2014) 58 EHRR 25
Links:
Statutes:
European Convention on Human Rights
Jurisdiction:
Human Rights
Cited by:
Cited – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department Admn 17-Jul-2014
The court was asked whether the Claimant’s proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence, involves a violation of article 14 in conjunction with article 8 of the European Convention on . .
Cited – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department CA 26-Jan-2016
The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now . .
Cited – Johnson, Regina (on The Application of) v Secretary of State for The Home Department SC 19-Oct-2016
The court was asked: ‘Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were not married to one another at the time of his birth or . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Family
Updated: 11 May 2022; Ref: scu.445805