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Romein v Advocate General for Scotland [2016] CSIH 24

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Romein v Advocate General for Scotland [2016] CSIH 24

08 April 2016

Section 4C of the British Nationality Act 1981 was introduced in 2002 in order to correct an instance of historic gender discrimination, by providing for the retrospective transmission of British citizenship along the maternal line.
As originally drafted, section 4C was relatively straightforward: an individual required to satisfy three conditions, the second of which was that, but for the discriminatory bar on women transmitting citizenship to their children, that individual "would have become" a British citizen by a particular statutory route (section 5 of the British Nationality Act 1948). There was no distinction on the face of the provision as between the type of citizenship held by the parent - i.e. it did not (appear to) matter whether the parent was born in the United Kingdom or elsewhere, and so whether they were a first-generation British citizen (i.e. by birth), or a second-generation citizen (i.e. ‘by descent’).
In 2009, section 4C was amended, principally to catch a number of different statutory routes to citizenship other than section 5 of the 1948 Act. At the same time, however, the second of the three conditions in section 4C was substantially amended, and a series of counterfactual ’assumptions’ were introduced. One of the assumptions, in subsection (3D), was framed in the negative, providing that it was “not to be assumed” by the decision-maker that the registration or other requirements mentioned in the statutory provisions in question (including section 5 of the 1948 Act) “were met”. One of the registration requirements in section 5 in particular was that, where the citizenship status of the parent was already ‘by descent’, citizenship would only be able to be transferred by them to a (third-generation) child born outwith the UK where the birth was registered at a British consulate within a year of the birth (or later, but only with the permission of the Secretary of State).
Ms Romein was born in the United States in 1978 to a second-generation British citizen mother born in South Africa but with immediate ancestral connections to Scotland and Wales. In 2013, Ms Romein sought to apply for British citizenship pursuant to section 4C on the basis that, whilst her birth was not actually registered at a British consulate (in the US or anywhere else), her mother had tried to register it but was told there was no point in doing so; had she been permitted to register it, she argued, then but for the discriminatory bar on the transmission of citizenship from mother to daughter Ms Romein would have obtained citizenship under section 5 of the 1948 Act. Ms Romein's application was refused, and the subsequent petition for judicial review of that decision was resisted, on the basis that section 4C was not intended to apply to the children of second-generation British citizens, but rather only the children of first-generation citizens i.e. mothers born in the UK.
The petition was refused by the Lord Ordinary and Ms Romein reclaimed. In its opinion of 1 April 2016, an Extra Division of the Inner House agreed with the construction of section 4C put forward by the reclaimer, that it applied equally to the children of persons born outwith as it did within the UK, finding there to be no good reason to limit the scope of section 4C as first enacted, and further finding it to be “inherently unlikely” that the 2009 amendments were “intended to reintroduce aspects of gender discrimination previously discarded”. Instead, the Extra Division considered the assumption in subsection (3D) to simply put an applicant “to proof of his or her claim”, noting that there might, for example, be correspondence showing that enquiries were made with the relevant consulate. In such circumstances, the requirements would be met by proof that registration would have taken place (presumably by producing the correspondence), and the applicant "would have become” a citizen (of the United Kingdom and Colonies, and thereafter a British citizen). The decision of the Secretary of State to refuse Ms Romein’s application under section 4C was thus reduced, and the case remitted back to the Home Office to reconsider the evidence (an affidavit) which had been put forward in proof of her claim.

Axiom advocates Kenny McBrearty QC and Lesley Irvine acted for the reclaimer. David Johnston QC acted for the respondent, the Advocate General for Scotland, on behalf of the Secretary of State for the Home Department.