JUDGMENT
The Advocate General for Scotland (Appellant) v
Romein (Respondent) (Scotland)
before
Lady Hale, President
Lord Sumption
Lord Reed
Lord Hodge
Lady Black
JUDGMENT GIVEN ON
8 February 2018
Heard on 6 December 2017
Appellant Respondent
David Johnston QC Kenny McBrearty QC
Julius Komorowski Lesley Irvine
(Instructed by Office of
the Solicitor to the
Advocate General of
Scotland
)
(Instructed by McGill &
Co
)
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LORD SUMPTION: (with whom Lady Hale, Lord Reed, Lord Hodge and
Lady Black agree)
1. For some four centuries, the United Kingdom and its component nations have
been a major source of emigration. As a result, schemes for defining the right to
British nationality have been complicated by the need to accommodate those born
abroad but having significant connections with the United Kingdom by descent.
Until 1983, the basic principle was that British nationality by descent was available
to any person whose father was a citizen of the United Kingdom and Colonies. But
if his father was himself a citizen by descent only, then unless the child was born in
a British-controlled territory or the father was in Crown service at the time of the
birth, it was normally a condition that the birth should be registered at a British
consulate within a year. In no case could citizenship by descent be transmitted
through the female line. Regulations governing the registration of births by British
consuls restricted registration to those eligible for British citizenship.
2. The respondent, Shelley Elizabeth Romein, was born in the United States on
16 June 1978. Her father was a US citizen with no personal connection to the United
Kingdom. Her mother had been born in South Africa and was a citizen of the United
Kingdom and Colonies by descent because her father (Ms Romein’s grandfather)
had been born in the United Kingdom on 1 November 1905. Ms Romein’s mother
swore an affidavit in which she said that while pregnant with her she spent some
time in South Africa and contacted the British consulate in Johannesburg to enquire
about British citizenship for her unborn child. She was told, correctly, that the child
would not be eligible because her only claim by descent was through her mother.
3. With effect from 1 January 1983, the restriction to descent in the male line
was abrogated by legislation for those born after that date, and 20 years later in 2003
the legislation was retrospectively amended so as to allow those born before 1983
to acquire citizenship through the female line. However, when Ms Romein, who had
been born under the old regime, sought to take advantage of the change in 2013, her
application for citizenship was rejected on the ground that she was unable to satisfy
the statutory condition of registration within a year. The reason why she was unable
to do so was that although the law was now deemed at all material times to have
allowed claims to citizenship by descent through the female line, the staff of British
consulates, acting entirely properly under the law as it actually was, would have
refused to register her birth because she was ineligible. A result so paradoxical
clearly calls for scrutiny.
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Legislative history
4. The exclusion of claims to British citizenship by descent through the female
line is a curious survivor of redundant social and political priorities. At common
law, English nationality was based on allegiance. It was acquired by birth within the
King’s realm or by marriage to an Englishman. Nationality by descent was wholly
statutory and available under a statute of 1351 only where the child was born outside
the realm to parents both of whom were English: see 25 Ed III, cap 1. It followed
that an English woman who married an alien could not transmit her English
nationality to her child born outside the realm. The Naturalization Act 1870
abolished the common law principle that allegiance was indelible, and provided for
a woman to lose her British nationality upon marriage to an alien. From this it
followed that no question could arise of transmission of British citizenship by
descent through the female line alone.
5. The position was formalised by the British Nationality and Status of Aliens
Act 1914, which was the first statute comprehensively regulating eligibility for
British nationality. A valuable account of the historical background to this
legislation will be found in M P Baldwin, “Subject to Empire: Married Women and
the British Nationality and Status of Aliens Act”, Journal of British Studies, xl
(2001), 522. The Act arose from the Imperial Conference of 1911, in which the
United Kingdom and the Dominions had agreed upon the principle of a common
imperial nationality. A number of its provisions reflected concern among the
Dominions that a common imperial nationality would undermine their attempts to
restrict the right of entry by “undesirables”. The common nationality was therefore
restricted with a view to meeting these concerns. The 1914 Act repealed the statute
of 1351. Section 10 reproduced the effect of the Naturalization Act 1870 by
providing that the British wife of an alien would become an alien on her marriage.
Consistently with these provisions, section 1(1) of the 1914 Act as originally enacted
defined a British subject as (a) any person born within His Majesty’s dominions and
allegiance, and (b) any person born elsewhere whose father was a British subject.
This provision was amended by the British Nationality and Status of Aliens Acts of
1918 and 1922. In its final form, the Act made (b) dependent on the father satisfying
any one of five conditions, the most significant of which was condition (v), which
was that the birth of a child born outside His Majesty’s dominions must be registered
at a British consulate within a year or in special circumstances and with the consent
of the Secretary of State within two years. Section 1 of the British Nationality and
Status of Aliens Act 1943, repealed condition (v) and replaced it with a provision to
substantially the same effect but authorising the Secretary of State to permit
registration at any time. The Report of the Joint Select Committee on the Nationality
of Married Women (24 July 1923) recorded the main reasons advanced by the
Foreign Office in support of these measures: the dominant role of the husband in
shaping the cultural affiliation of the family, the problems under British diplomatic
practice of affording consular protection to British citizens with dual nationality, the
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need to maintain commonalty with the Dominions and the desirability of deterring
certain mixed marriages which were “in the women’s case nearly always most
undesirable.”
6. The Act of 1914 was superseded with effect from 1 January 1949 by the
British Nationality Act 1948, which was the statute in force at the time of Ms
Romein’s birth. The occasion for the new Act was the Commonwealth Conference
of 1947 on nationality and citizenship, which agreed that each of the Dominions
should in future legislate for its own citizenship instead of sharing in a common
British citizenship. This made it possible for the new Act to abrogate the rule that
British women who married aliens lost their nationality. But it did not alter the basic
principles on which citizenship by descent was available. Section 5 provided:
“5.(1) Subject to the provisions of this section, a person born
after the commencement of this Act shall be a citizen of the
United Kingdom and Colonies by descent if his father is a
citizen of the United Kingdom and Colonies at the time of the
birth:
Provided that if the father of such a person is a citizen
of the United Kingdom and Colonies by descent only,
that person shall not be a citizen of the United Kingdom
and Colonies by virtue of this section unless –
(a) that person is born or his father was born
in a protectorate, protected state, mandated
territory or trust territory or any place in a foreign
country where by treaty, capitulation, grant,
usage, sufferance, or other lawful means, His
Majesty then has or had jurisdiction over British
subjects; or
(b) that person’s birth having occurred in a
place in a foreign country other than a place such
as is mentioned in the last foregoing paragraph,
the birth is registered at a United Kingdom
consulate within one year of its occurrence, or,
with the permission of the Secretary of State,
later; or
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(c) that person’s father is, at the time of the
birth, in Crown service under His Majesty’s
government in the United Kingdom; or
(d) that person is born in any country
mentioned in subsection (3) of section one of this
Act in which a citizenship law has then taken
effect and does not become a citizen thereof on
birth.
(2) If the Secretary of State so directs, a birth shall be
deemed for the purposes of this section to have been registered
with his permission notwithstanding that his permission was
not obtained before the registration.”
7. Nothing was done to remedy the inability of women to transmit British
nationality by descent until 1979. Under section 7(1) of the Act of 1948 the Secretary
of State had a discretion to cause a minor child of a British citizen to be registered
as a British subject on the application of his or her parent or guardian. On 7 February
1979, Mr Merlyn Rees, the then Home Secretary, made a written statement in the
House of Commons that he would in future exercise this discretion in favour any
minor child of a woman who was herself born in the United Kingdom. He added
that in due course legislation would be introduced to address more generally the
transmission of citizenship in the female line: Hansard HC vol 962, cols 203-204W.
Since Ms Romein’s mother had not been born in the United Kingdom, this change
of policy made no difference to her situation. Neither did the promised legislation,
when it was eventually enacted. The British Nationality Act 1981, which came into
force on 1 January 1983, removed the limitation to descent through the male line for
the future. It also abolished acquisition of nationality by children of British nationals
by descent by the registration of their births at a consulate. For a five year transitional
period nationality could still be acquired in similar circumstances by registration
with the Secretary of State (but still restricted, as before 1983, to descent through
the male line). In April 1986, the United Kingdom ratified the United Nations
Convention on the Elimination of All Forms of Discrimination Against Women.
Article 9.2 of the Convention required state parties to grant equal rights to men and
women with respect to the nationality of their children. However, the United
Kingdom’s ratification was subject to a reservation that it would continue to apply
the five year transitional provision in the Act of 1981.
8. Those born before the commencement of the 1981 Act continued to benefit
from the Rees policy until the end of 2000, when the last person born while the 1948
Act was in force ceased to be a minor. There was then a hiatus of some two years
until 30 April 2003, when section 13 of the Nationality, Immigration and Asylum
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Act 2002 came into force. This retrospectively amended the Act of 1981 by inserting
a new section 4C. Section 4C was subsequently replaced by a revised section 4C to
similar but not identical effect, which was introduced into the 1981 Act by section
45(3) of the Borders, Citizenship and Immigration Act 2009. In this form it was in
force at the time of Ms Romein’s application, and indeed still is. It provides as
follows:
“4C Acquisition by registration: certain persons born
before 1983
(1) A person is entitled to be registered as a British citizen
if –
(a) he applies for registration under this section, and
(b) he satisfies each of the following conditions.
(2) The first condition is that the applicant was born before
1 January 1983.
(3) The second condition is that the applicant would at some
time before 1 January 1983 have become a citizen of the United
Kingdom and Colonies-
(a) under section 5 of, or paragraph 3 of Schedule 3
to, the 1948 Act if assumption A had applied,
(b) under section 12(3), (4) or (5) of that Act if
assumption B had applied and as a result of its
application the applicant would have been a British
subject immediately before 1 January 1949, or
(c) under section 12(2) of that Act if one or both of
the following had applied –
(i) assumption A had applied;
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(ii) assumption B had applied and as a result
of its application the applicant would have been
a British subject immediately before 1 January
1949.
(3A) Assumption A is that –
(a) section 5 or 12(2) of, or paragraph 3 of Schedule
3 to, the 1948 Act (as the case may be) provided for
citizenship by descent from a mother in the same terms
as it provided for citizenship by descent from a father,
and
(b) references in that provision to a father were
references to the applicant’s mother.
(3B) Assumption B is that –
(a) a provision of the law at some time before 1
January 1949 which provided for a nationality status to
be acquired by descent from a father provided in the
same terms for its acquisition by descent from a mother,
and
(b) references in that provision to a father were
references to the applicant’s mother.
(3C) For the purposes of subsection (3B), a nationality status
is acquired by a person (‘P’) by descent where its acquisition –
(a) depends, amongst other things, on the nationality
status of one or both of P’s parents, and
(b) does not depend upon an application being made
for P’s registration as a person who has the status in
question.
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(3D) For the purposes of subsection (3), it is not to be
assumed that any registration or other requirements of the
provisions mentioned in that subsection or in subsection (3B)
were met.
(4) The third condition is that immediately before 1st
January 1983 the applicant would have had the right of abode
in the United Kingdom by virtue of section 2 of the
Immigration Act 1971 (c 77) had he become a citizen of the
United Kingdom and Colonies as described in subsection (3)
above.
(5) For the purposes of the interpretation of section 5 of the
1948 Act in its application in the case of assumption A to a case
of descent from a mother, the reference in the proviso to
subsection (1) of that section to ‘a citizen of the United
Kingdom and Colonies by descent only’ includes a reference
to a female person who became a citizen of the United
Kingdom and Colonies by virtue of –
(a) section 12(2), (4) or (6) only of the 1948 Act,
(b) section 13(2) of that Act,
(c) paragraph 3 of Schedule 3 to that Act, or
(d) section 1(1)(a) or (c) of the British Nationality
(No 2) Act 1964.”
In other words, applications for citizenship by descent through the female line are
now to 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.
Application to Ms Romein’s case
9. The paradox of the Secretary of State’s decision in the present case is that
although section 4C(3)(a) of the 1981 Act (as amended) and the associated
Assumption A require her to assume that section 5 of the 1948 Act had always
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“provided for citizenship by descent from a mother in the same terms as it provided
for citizenship by descent from a father”, nevertheless an application for citizenship
on that basis must fail because no such assumption would or could have been made
by the officials responsible for registration at the time. To this conundrum there are
logically only three possible solutions:
(1) Section 4C requires one to assume not only that section 5 of the 1948
Act had always provided for citizenship by descent in the female line, but
that the historic facts were different, ie that consular officials in fact acted on
that basis. The argument is that in terms of subsection (3) Ms Romein “would
… have become a citizen” under section 5 of the 1948 Act if Assumption A
had applied, because on that hypothesis consular officials would have
registered her. This is Ms Romein’s case, which was substantially adopted
by the Inner House.
(2) Section 4C requires one to assume only that section 5 of the 1948 Act
had always provided for citizenship by descent, but not to make any
assumption that the facts were other than they were. The result is that
applications based on descent through the female line must fail in every case
where citizenship was dependent on the fact of registration under section
5(1)(b). This is the case which the Advocate General makes in support of the
Secretary of State’s decision, and which was substantially accepted by the
Lord Ordinary.
(3) Effect cannot be given to the registration condition in section 5(1)(b)
of the 1948 Act at all, as applied to applications for citizenship by descent
through the female line, because insisting on that condition would nullify the
practical effect of making Assumption A. This possibility was raised with
Counsel in the course of argument before us, but does not appear to have been
considered below.
10. I start with the first hypothesis, which is the one that found favour with the
Inner House. There are formidable difficulties about the counterfactual assumption
on which this hypothesis depends. In the first place, Ms Romein’s contention is that
on the assumption made about the law in Assumption A, she would have acquired
citizenship under section 5(1)(b) of the 1948 Act. No other provision of that Act
could be relevant to her case. The registration condition is an integral part of section
5(1)(b). If any effect is to be given to it, the only counterfactual assumption that
would enable her application to succeed is that consular officials not only made
Assumption A but actually registered the applicant as a British citizen. But that
assumption cannot be made consistently with subsection (3D), because registration
is one of the “requirements” of section 5 of the 1948 Act, which is one of the
provisions mentioned in subsection (3). It follows that the decision-maker cannot
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assume that the registration condition “was met”. Since without such an assumption,
one is left with the fact that she was not registered, she would not have become a
citizen. I cannot accept the view of the Inner House that subsection (3D) is
concerned only to cast on the applicant the burden of proving his or her claim,
without the assistance of any presumption of fact. It does not say this. Moreover,
she would have that burden anyway. Secondly, on the present hypothesis the
question whether an applicant would have acquired citizenship under section 5(1)(b)
of the 1948 Act if Assumption A is made, depends not just on what action consular
registrars would have taken if the law had been in accordance with Assumption A,
but on what steps the child’s parents would have taken to have her registered on that
assumption. It so happens that in Ms Romein’s case the answer is reasonably clear
if her mother’s affidavit is accepted. Her mother would have received a different
answer to her enquiry of the Johannesburg consulate and would have sought to
register the birth. If consular officials had made Assumption A in 1978, that attempt
would have succeeded. It is clear that Ms Romein’s mother not only attached a high
value to her unborn child’s future nationality, but not realising the legal
impediments, took some steps towards registering her. Someone who knew about
the legal impediments would have done nothing and generated no evidence of this
kind. Yet it is not obvious why that should make any difference. There is a
conceptual problem about making the operation of section 4C dependent on an
enquiry conducted years later into the question whether a parent would before 1983
have wished or intended or attempted to avail herself of a right which did not then
exist. Thirdly, that problem is immeasurably increased when one examines the other
implications of this approach. Subsection (3D) applies to all the provisions
mentioned in section 5 of the 1948 Act, including sections 5(1)(a) and (c). There is
nothing to suggest that claims under these provisions fall to be treated differently
from those made under section 5(1)(b). If the counterfactual assumption to be made
includes the steps which the parents would have taken, then it would be open to an
applicant to say that had the law allowed citizenship by descent in the female line
the mother would have moved to a British-controlled territory for the birth so as to
qualify under section 5(1)(a), or one or other parent would have entered or continued
in Crown service in time for the birth so as to qualify under section 5(1)(c). It seems
extremely unlikely that Parliament envisaged in 2002 or 2009 that the operation of
this provision would depend on the practically unanswerable question what
adjustments parents would hypothetically have made to their lives with a view to
obtaining British citizenship for their children. Subsection (3D) appears to have been
added precisely to rule out any such unrealistic enquiries. In my view the only
counter-historical assumptions authorised by the Act are Assumptions A and B.
11. However, the Advocate General’s case faces, as it seems to me, equally
formidable objections. He submits that Assumption A requires section 5 of the 1948
Act to be read as providing for citizenship by descent from a mother “in the same
terms as it provided for citizenship by descent from a father”. Since those terms
included the registration condition in section 5(1)(b), effect must be given to that
condition. Subsection (3D) then provides that it is not to be assumed that these terms,
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including the registration condition, have been met. In the absence of a statutory
assumption to that effect, he submits, the applicant must demonstrate that the terms,
including the registration condition, have in fact been met, just as a claimant to
citizenship by descent from a father would have to do. This accords with the literal
words of section 4C. The difficulty about it is that while purporting to give effect to
section 5(1)(b), its actual result is to make section 4C inapplicable to substantially
all claims based on it. Section 4C(3)(a) assumes that by making Assumption A it
will in principle be possible to claim citizenship by descent under section 5 of the
1948 Act, including section 5(1)(b). But if (as the Advocate General submits) effect
must be given to the registration condition in section 5(1)(b) of the 1948 Act, then
citizenship by descent through the female line would be available under section
5(1)(b) only in those anomalous cases where persons claiming descent through the
female line were registered at a British consulate by mistake or in defiance of the
regulations. There were apparently a few such cases. It is difficult to discern any
rational reason why the legislature should have intended to help only them. Yet,
except in cases where the birth of an ineligible child was registered unlawfully, the
effect of the Advocate General’s reading is to close off section 5(1)(b) as a route to
citizenship by descent from a mother. Mr Johnston QC, who appeared for the
Advocate General, suggested at one point that the intention was to allow claims to
citizenship by descent from a woman only in the cases covered by section 5(1)(a),
(c) or (d) of the 1948 Act where citizenship followed automatically from a specified
state of affairs and was not dependent on steps being taken by any human actor. But
the problem about this argument, apart from being inconsistent with his primary
argument (that the registration condition in section 5(1)(b) must be given effect), is
that if it was intended to rule out all applications under section 4C based on section
5(1)(b) of the 1948 Act, the provision as drafted would be a most extraordinary way
of doing it. The obvious course would have been to limit the reference to section 5
of the 1948 Act in section 4C of the 1981 Act (as amended) to section 5(1)(a), (c)
and (d). In fact, it must be in the highest degree unlikely that Parliament entertained
any such intention. Since section 5(1)(b) of the 1948 Act seems likely to be the basis
of a large proportion of applications under section 4C of the 1981 Act (as amended),
it would have significantly undermined the purpose of the provision, for no reason
that can readily be imagined.
12. I think that the solution to the paradox is more straightforward than either of
these hypotheses. 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
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to treat the registration condition in section 5(1)(b) as being inapplicable in cases
where citizenship is claimed by descent from a mother.
13. I should, finally, notice two objections urged against this analysis, neither of
which I would accept.
14. The first objection is that it leads to unacceptable discrimination between
those born before and after the 1948 Act came into force on 1 January 1949. This is
because claims to citizenship by descent from a mother by persons born before 1
January 1949 are governed by section 4C(3)(b) and (c) of the 1981 Act (as
amended). These provisions deal with claims based on section 12(2)-(5) of the 1948
Act, which provide subject to certain conditions for persons who were British
subjects immediately before the commencement of the 1948 Act to become Citizens
of the United Kingdom and Colonies on the commencement date. The status of
British subjects immediately before 1 January 1949 was governed by the 1914 Act,
which contained provisions for citizenship by descent similar to those of the 1948
Act. Section 4C(3)(b) and (c) of the 1981 Act (as amended) provides for Assumption
B to be made where an applicant was born before 1 January 1949. Assumption B is
that the law in force before 1 January 1949, ie section 1 of the Act of 1914, provided
for a “nationality status” to be acquired by descent from the mother on the same
terms as from a father. For this purpose, section 4C(3C) of the 1981 Act (as
amended) provides that a “nationality status” is acquired by descent where its
acquisition depends on the nationality status of one or both parents and does not
depend upon an “application” being made for registration as a person who has that
status. The Advocate General submits that in the case of persons born before 1
January 1949 this rules out claims to citizenship by descent through the female line
based on reading section 1(1)(b)(v) of the 1914 Act (which applied a condition of
registration for any person born outside His Majesty’s dominions) in accordance
with Assumption B. The Inner House rejected this argument because section
1(1)(b)(v) of the 1914 Act did not require anything that could properly be described
as an “application” for registration. An “application”, they thought, suggested an
appeal to discretion whereas registration of the birth of an eligible child was a right.
They concluded that subsection (3C) must be taken to refer to the registration of a
person as having British nationality by naturalisation under regulations envisaged
by section 19(1) of the 1914 Act. This may be so, although it is right to point out
that section 1(1)(b)(v) of the 1914 Act is the only statutory provision in force before
1 January 1949 which referred to registration as a requirement for British nationality
by descent. I should, however, prefer not to decide this point. It does not affect Ms
Romein’s case. For the purposes of this appeal, it is enough to point out that the
provisions of subsection (3C) referring to the claims of those born before 1 January
1949 and those of subsection (3D) referring to the claims of those born after that
date are in different terms. If there is any difference between the treatment of the
two categories under section 4C of the 1981 Act (as amended), it arises from
differences in the language of the two subsections. It is not anomalous.
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15. The second objection is that failing to apply the registration condition to those
claiming under section 4C would lead to a different form of gender discrimination,
because claimants through the female line would be free of the registration condition
whereas claimants through the male line under the previous law were not. In other
words there would be a difference of treatment between (i) persons who could have
been registered as citizens because their fathers were citizens, but for whatever
reason were not, and can do nothing about it, and (ii) persons who could not have
been registered because their only claim was through their mother, in relation to
whom no registration condition arises. I do not regard this as anomalous either.
There is no discrimination between applicants, whether by gender or otherwise.
There was historic discrimination between their parents, since a father was held to
transmit his citizenship to his children while a mother was not. Section 4C simply
corrects the subsisting consequences for their children of this historic
discrimination. There is no question of current discrimination.
Disposal
16. I would dismiss the appeal and affirm the decision of the Inner House, albeit
for the rather different reasons which I have given.
