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The Advocate General for Scotland v Romein [2018] UKSC 6

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The Advocate General for Scotland v Romein [2018] UKSC 6

09 February 2018

Supreme Court confirms the right of British women to pass their nationality on to their children born abroad.

The right to a nationality, and the right not to be arbitrarily deprived of a nationality, is a fundamental one recognised as such by the Universal Declaration of Human Rights. British women, however, although able to inherit their father’s nationality when born abroad, have historically been denied the right to pass it on to their own children in the same circumstances. Although the British Nationality Act 1981, when it came into force on 1 January 1983, equalised the rights of men and women as regards the nationality of their children, as passed it did nothing to remedy the discrimination against women which had persisted up until that point. 

The Respondent in this case, Ms Romein, was born in the USA in 1978. Her father was a US citizen. Her mother was born in South Africa to a Scottish mother and a Welsh father, from whom she inherited her British national status. Despite her family’s connections to the United Kingdom on both sides, and despite wishing to do so, as a result of the discrimination inherent in British nationality law—specifically, at that time, section 5 of the British Nationality Act 1948—she was unable to pass her British national status on to her own child. That she wished to do so is evident from her sworn statement that she contacted the British consulate in Johannesburg whilst pregnant to ascertain whether she could register the birth of the Respondent, but was told that it would serve no purpose.

Section 5 of the 1948 Act provided for the transmission of citizenship by descent in two circumstances. First, where a person was born to a father whose citizenship status was acquired by birth. Second, and of relevance for this case, where a person was born to a father whose own citizenship status was acquired by descent. In the latter circumstances, citizenship would only be transmitted further if one of four conditions were satisfied. The relevant condition for present purposes was in section 5(1)(b), which required the registration of the birth at a British consulate within one year of birth, or later, but only with the permission of the Secretary of State. The mechanism of consular registration as a means of conferring citizenship was repealed shortly after the 1981 Act came into force. At no point was it ever open to women.

In 2003, over 20 years after it was passed, the 1981 Act was amended to seek to remedy the historical injustice recognised but not entirely remedied by the 1981 Act as passed, by providing for the retrospective acquisition of citizenship through the maternal line. The method by which it did so was essentially to ‘resurrect’ section 5 of the 1948 Act and apply it on the hypothesis that it was written in gender neutral, as opposed to gender discriminatory, terms. No distinction was made as between the different routes to citizenship within that provision.

In 2010, section 4C was itself amended, principally to allow for other ‘non-section 5’ routes to citizenship, and what was a relatively straightforward piece of legislation became what has since been described as “a dense and at times impenetrable piece of drafting”. Still no distinction was made, however, as between the different ‘section 5’ routes to citizenship. In 2013, Ms Romein applied for citizenship under section 4C as amended but her application was refused. She sought judicial review of that decision and although unsuccessful at first instance, the Lord Ordinary’s decision was overturned on appeal to the Inner House. The Advocate General for Scotland appealed to the Supreme Court. The issue between the parties was whether, as amended, section 4C included or excluded children in the position of the Respondent, born abroad to a woman who was herself born abroad, and whose birth, in order for her to have obtained citizenship, would have had to (but could not) have been registered at a British consulate.

The Respondent’s position was that, read purposively, the terms of section 4C were able to be satisfied by her and others in her position provided it could be sufficiently evidenced that, had the law been different, the birth would have been registered at a British consulate. She sought to establish precisely that by way of a sworn affidavit. The Appellant’s position, in contrast, was that someone in the position of Ms Romein was absolutely excluded from the scope of section 4C, on the basis that whilst the law was required to be assumed to be different, the facts required to stay the same. The birth had not been registered and that historical fact (registration no longer being possible) could not now be changed.

Lord Sumption, without going into the detail of the provision, considered the solution to the evident paradox to be straightforward: 

“Because section 4C requires one to assume that section 5 of the 1948 Act had always provided for citizenship by descent in the female line, it is not possible to apply the registration condition in section 5(1)(b) of the 1948 Act to those claiming on that basis, because its application would make nonsense of that assumption. The past is done, and cannot be undone. For nearly 70 years, British consuls have declined to register the births of those claiming by descent through the female line. Throughout that period any purported registration of a person claiming citizenship only through the female line would have been legally ineffective. Given that we are forbidden by section 4C(3D) to assume contrary to the facts that the birth was in fact registered, the only way in which effect can be given to section 4C(3) is to treat the registration condition in section 5(1)(b) as being inapplicable in cases where citizenship is claimed by descent from a mother.”

The appeal of the Advocate General for Scotland was accordingly dismissed, and albeit for different reasons, the decision of the Inner House was affirmed.

Kenny McBrearty QC and Lesley Irvine, both of Axiom Advocates, appeared for the Respondent, Ms Romein.

David Johnston QC of Axiom Advocates appeared for the Appellant, the Advocate General for Scotland.