AS TO THE ADMISSIBILITY OF
Application no. 18304/05
by Vira NYKYTINA
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 10 January 2006 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 9 May 2005,
Having deliberated, decides as follows:
The applicant, Ms Vira Nykytina, is a Ukrainian national who was born in 1979 and lives in Bristol.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has a son, M, (date of birth 7 June 2002) by her former partner, R, who is British and to whom she was never married. Her relationship with R broke down at some point between August 2002 and November 2003.
The applicant applied to the Home Office for leave to remain as the unmarried partner of R. This was refused on the basis that the relationship had broken down and the Secretary of State was not therefore satisfied that she had been living with R in a relationship akin to marriage which had subsisted for two years or more. By letter dated 17 January 2005 she was, however, granted discretionary leave to remain until 6 December 2007.
M’s birth certificate shows that his nationality is Ukrainian. It appears that he lives with his mother, but that she shares parental responsibility for him with R.
The applicant applied on M’s behalf for leave to remain as her dependent. This was refused because her own application was refused; by letter dated 17 January 2005 M was similarly granted discretionary leave to remain until 6 December 2007.
The applicant has sought the assistance of her Member of Parliament, to whom the relevant Minister of State confirmed (by letter dated 21 February 2005) that the operation of the British Nationality Act 1981 (“the 1981 Act”) meant that R was unable to pass on his citizenship to M because he was not married to the applicant.
B. Relevant domestic law
The acquisition of British nationality is governed by the provisions of the 1981 Act.
Section 1 of the Act governs acquisition by birth. It provides that:
(a) a British citizen...”
However, by section 50(9) of the 1981 Act,
“(b) subject to section 47 [which makes provision for legitimating children], 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[...] “father” [...] shall be construed accordingly.
By the operation of section 1 read together with section 50(9), therefore, a father of a child born to a woman to whom he is not married does not count as his “father” for purposes of the transmission of British citizenship.
However, section 3 of the 1981 Act provides that:
“(1) 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.”
The applicant does not invoke any Convention Article. However, she complains that the fact that M is classified as a Ukrainian national means that he is subject to immigration control which could have a serious negative impact on his future welfare.
As noted, the applicant does not invoke any specific Article of the Convention. However, the Court considers that the complaint invokes in substance both Article 8 in isolation and, potentially, in conjunction with Article 14.
Article 8 of the Convention provides in relevant part as follows:
“1. Everyone has the right to respect for his private and family life [...].
2. There shall be no interference by a public authority with the exercise of this right except such as is 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 the rights and freedoms of others.”
Article 14 of the Convention provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any 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.”
Assuming, for the purposes of this application, that the facts of the case fall within the scope of Article 8, such that it and Article 14 are at issue, the Court notes that the applicant (and/or R) could have applied, and still could apply, to have M registered as a British national under the provisions of section 3(1) of the 1981 Act. Neither has done so. It is therefore unclear, given that the applicant and her son have both been given leave to remain in the United Kingdom for the time being, whether the applicant may at all claim to be a “victim” of an alleged violation, as required by Article 34 of the Convention. Further, and to the extent that the application raises Convention issues, it would be open to her to challenge any refusal by the Secretary of State before the domestic courts by, for example, an application for permission for judicial review. The Court is therefore of the view that the applicant has in any event failed to exhaust her domestic remedies.
It follows that the application must be rejected under Article 35 §§ 1 and 3 of the Convention and that it must be declared inadmissible pursuant to Article 35 § 4.
Declares the application inadmissible.
Michael O’Boyle Josep Casadevall
NYKYTINA v. THE UNITED KINGDOM DECISION
NYKYTINA v. THE UNITED KINGDOM DECISION