Court of Appeal considers the principles governing Article 1 ECHR

In a judgment delivered on 22 July, the Court of Appeal (Moylan, Newey and Andrews LJJ) considered the principles which govern the extra-territorial application of the ECHR.

The Appellant had been born in the United Arab Emirates in 1981 and continued to reside there. Her father had been born in Somaliland and her mother had been born in 1958 in Aden. As that was a British colony at the time, the mother became a citizen of the United Kingdom and Colonies (‘CUKC') under the British Nationality Act 1948. Under s.5 of that Act, a person born after the commencement of the Act also became a CUKC if their father was a CUKC at the time of the birth. There was no similar provision for citizenship by descent by reason of a person's mother being a CUKC.

The mother later became a British overseas citizen under the British Nationality Act 1981. Section 4C of that Act entitled a person born before 1983 to be registered as a British citizen if they would have become a CUKC before 1983 had citizenship passed by descent from the mother, and if the person would have had the right of abode in the UK as a CUKC under the Immigration Act 1971 s.2. The Appellant's mother had not had that right of abode, and the Appellant would not have had that right had she been a CUKC.

The Appellant applied for registration as a British overseas citizen. The Secretary of State for the Home Department rejected her application. The Appellant applied for judicial review on the basis that the relevant statutory provisions were unlawfully discriminatory on the basis of her mother's gender and were therefore incompatible with Article 14 ECHR, read in conjunction with Article 8. The High Court held that there was no jurisdiction to apply the ECHR: the Appellant resided outside the UK, had no private or family life here, and would not secure a right of abode even if she were given a British overseas citizen passport.

The Court of Appeal agreed with the High Court. The Court held that the concept of jurisdiction within Article 1 ECHR is primarily territorial and a state would be considered to be exercising jurisdiction extraterritorially only in exceptional circumstances. 

The Court held that two main criteria had been recognised as governing what constitutes exceptional circumstances: effective control by the state over an area, and state agent authority and control over individuals. The former criterion was not relevant in this case. What mattered in relation to the second criterion, held the Court, was control over the person himself or herself, rather than the person's interests, and it was not enough that the state had taken, or could take, a decision or action impacting the applicant's situation abroad.

In this case, there was nothing comparable to the exercise of authority or of physical power and control. The grant to the Appellant of a British overseas citizen passport might impact on her situation and interests, but there was no question of the UK exercising any control over the Appellant herself. Although states were entitled to devise their own rules regulating nationality, nationality could not constitute an autonomous basis of jurisdiction.

Article 14 would not be rendered ineffective if it were limited to those individuals already in a state's territory or under its effective control. Although the effectiveness of Article 14 would be enhanced if it were understood to be available in circumstances such as those in this case, there was ample scope for its application in any event. Furthermore, the Court held that Article 14 protected individuals from discrimination in their enjoyment of the rights afforded by the ECHR. There was nothing which enabled someone to bring a claim under Article 14 when the state had no jurisdiction to entertain a complaint about breaches of the ECHR right in respect of which discrimination was alleged. The Appellant's case was that she had suffered discrimination in relation to the enjoyment of her private life under Article 8. However, she had never established a private life in the UK.

As the Appellant had not established the threshold criterion of jurisdiction, her appeal was dismissed. 

David Blundell KC and Karl Laird represented the Secretary of State for the Home Department.