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Legislative muddle resolved in favour of citizenship applicant

9 February 2018

The amended British Nationality Act 1981 should be read as correcting the consequences of historic discrimination between applicants for citizenship claiming through the female and those claiming through the male line, the UK Supreme Court ruled yesterday.

Five Justices unanimously refused an appeal by the Advocate General for Scotland against a decision of the Inner House, but for different reasons to that court, allowing a petition for judicial review by Shelley Romein against a decision refusing her citizenship application and remitting it for reconsideration.

At the time Ms Romein was born, in 1978 in the USA, the statutory rule (British Nationality Act 1948, s 5) was that British citizenship was available to a person by descent if his or her father was a citizen of “the United Kingdom and Colonies” at the time of the person’s birth; if the person’s father was himself a citizen by descent only, then subject to exceptions the person’s birth had to be registered at a British consulate within a year. Citizenship by descent could not be transmitted through the female line. A consul could register a birth only if the child was eligible for British citizenship. Ms Romein’s father was a US citizen with no personal connection to the UK; her mother was a British citizen descent. Her mother had been told by a British consulate (correctly at the time) that her child was ineligible for citizenship. The 1981 Act removed the restriction to descent through the male line for those born after 1 January 1983; in 2003 and 2009 it was amended retrospectively to provide by s 4C that applications for citizenship should be dealt with on the assumption that the law had always provided for citizenship by descent from the mother on the same terms as it provided for citizenship by descent from the father. However, when Ms Romein sought to take advantage of this, her application was rejected because she was unable to satisfy the condition of registration within a year.

Lord Sumption, with whom Lady Hale (President), Lord Reed, Lord Hodge and Lady Black agreed, said that the refusal of Ms Romein’s citizenship application, notwithstanding the assumption in s 4C, on the ground that the consular staff would have properly refused to register her birth was a paradoxical result, calling for scrutiny. There were logically only three possible solutions to this conundrum.

The first approach, which was that of the Inner House, was that s 4C required one to assume not only that the law had always provided for citizenship by descent through the female line, but that consular officials at the time in fact acted on that basis. This involved formidable difficulties, including that it was inconsistent with s 4C(3D), according to which "it is not to be assumed" that the registration requirement was met.

The second approach, that of the Advocate General and the Lord Ordinary, was that s 4C required one to assume only that the law had always provided for citizenship by descent, but not to make any assumption that the facts were other than they actually were. This accorded with the literal words of s 4C, but its result was that citizenship by descent through the female line would be available under s 5(1)(b) of the 1948 Act only where persons were registered by mistake or in defiance of the regulations. That would significantly undermine the purpose of s 5(1)(b) of the 1948 Act for no discernible reason.

The solution was to treat the registration condition in s 5(1)(b) as inapplicable in applications for citizenship by descent from the mother. This was the only way to give effect to s 4C(3) of the 1981 Act, given that s 4C(3D) precluded any counterfactual assumption that the birth was registered. There were two objections to this solution, neither of which was accepted. The first was that it led to unacceptable discrimination between those born before and after the 1948 Act came into force. The court preferred not to decide this point; it did not affect Ms Romein’s case, and if there was a difference, it arose from the wording of the 1981 Act as amended. The second was that it led to a different form of gender discrimination, because claimants through the female line would be free of the registration condition. This was not anomalous either: there was no current discrimination between applicants. There was historic discrimination between their parents. Section 4C simply corrected the remaining consequences.

Click here to access the judgment.

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Tuesday May 1, 2018, 14:55

What a shame this judgement still doesn’t correct the discrimination against children of maternal British grandmothers. The case involved and listed above only allows an applicant to register for British citizenship via birth to a maternal grandfather and not grandfather [sic] as the mother wasn’t a British citizen at the time of their birth due to the discrimination in place at that given time. Surely registration for citizenship by descent from a British mother would be retrospective and an application for a subsequent generation would be eligible? Clearly one grandparent, the maternal grandparent's gender continues to disadvantage their grandchildren for no apparent reason. This should and must be changed.