Hilary
Term
[2018] UKSC 6
On appeal from: [2016] CSIH 24
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
David Johnston QC
Julius Komorowski
(Instructed by
Office of the Solicitor to the Advocate General of Scotland)
|
|
Respondent
Kenny McBrearty QC
Lesley Irvine
(Instructed by
McGill & Co)
|
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.
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
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
(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 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;
(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.
(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 “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 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, 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 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.
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.
