Gender Discrimination and Historic Injustice: Law Corrected on British Citizenship through Matrilineal Descent

The Advocate General for Scotland v Romein (Scotland) [2018] UKSC 6 (8 February 2018)

Women have overwhelmingly borne the brunt of injustice throughout history and discrimination against females has been axiomatic in the sphere of citizenship. The British Nationality Act 1948 laid down the rule in section 5(1) that a person could avail British citizenship by descent if his or her father was a citizen of the United Kingdom and Colonies (CUKC) at the time of the person’s birth. However, if the person’s father was a citizen by descent only, then unless either the said person was born in a British-controlled territory or the father was in Crown service at the time of the birth, section 5(1)(b) normally made it a condition that the person’s birth should be registered at a British consulate within one year. The female line was prevented from transmitting citizenship by descent and regulations permitted a British consulate to register a birth only if the child was eligible for British citizenship. The exclusion of claims to British citizenship by descent through the female line is an abhorrent injustice that the Supreme Court described as “a curious survivor of redundant social and political priorities”. Dismissing the Advocate General’s appeal, the court unanimously held that the condition in section 5(1)(b) of the 1948 Act should be treated as inapplicable in applications for citizenship by descent from the mother because this is the only way to give effect to section 4C(3) of the British Nationality Act 1981.

Remarking that “the past is done, and cannot be undone,” Lord Sumption, who is also an acclaimed historian, explained at the outset of his judgment that four centuries of emigration from the UK have complicated schemes for defining the right to British nationality because of the need to accommodate those born abroad but having significant connections with the UK by descent. Allegiance defined English nationality at common law and birth within the King’s realm or marriage to an Englishman resulted in its acquisition. However, in 1351 nationality by descent became available under statute to children born outside the realm to purely English parents. English women marrying aliens were unable to transmit English nationality to children born outside the realm. The permanence of the allegiance principle at common law was abolished by the Naturalization Act 1870 which prescribed that marriage to an alien resulted in a woman losing her British nationality altogether. The consequence was to eliminate the possibility of British citizenship by descent being transmitted through the female line alone.

Undesirability

The first statute to comprehensively regulate eligibility for British nationality, the British Nationality and Status of Aliens Act 1914, formalised this arrangement. This legislation emerged out of the Imperial Conference of 1911 during which the principle of common imperial nationality had been agreed by the UK and the Dominions. The 1914 Act’s mechanics were indicative of some anxiety among the Dominions that their attempts to restrict the right of entry by “undesirables” would be hampered by a common imperial nationality. The statute of 1351 was repealed by the 1914 Act and section 10 replicated the effect of the 1870 Act by providing that the British wife of an alien would become an alien on her marriage.

In its original form, section 1(1) of the 1914 Act defined a British subject as (i) any person born within His Majesty’s dominions and allegiance, and (ii) any person born elsewhere whose father was a British subject. Subsequent to being amended by the British Nationality and Status of Aliens Acts of 1918 and 1922, the 1914 Act made the second situation dependent on the father satisfying any one of five conditions, the last and most significant of which stipulated that a child’s birth outside His Majesty’s dominions needed to be registered at a British consulate within a year or in special circumstances and with the authorities’ consent within two years. This condition was repealed by section 1 of the British Nationality and Status of Aliens Act 1943 which laid down a similar provision but enabled the authorities to permit registration at any time.

The reasoning behind these measures was justified on the basis of a male dominated view of the cultural affiliation of the family, the difficulties of extending consular protection to British citizens holding dual nationality, the necessity of maintaining commonalty with the Dominions and the attractiveness of preventing certain mixed marriages which in the case of women were “nearly always most undesirable.”

Background

Shelley Elizabeth Romein’s father was a US citizen. Her mother was a CUKC by descent because her father was British born. Romein was born abroad in the USA in 1978 when the 1948 Act applied. Romein’s mother tendered an affidavit that during pregnancy she approached the British consulate in Johannesburg to enquire about British citizenship for her unborn child. But she was correctly advised of her ineligibility because her only claim by descent was through her mother.

From 1 January 1949, the 1948 Act supplanted the 1914 Act and was in force when Romein was born. At the Commonwealth Conference of 1947 on nationality and citizenship, from which the 1948 Act arose, it was agreed that rather than sharing a common British citizenship each of the Dominions should legislate for its own citizenship in future times. Although it was possible to utilise the 1948 Act to rescind the rule that British women who married aliens lost their nationality, the legislation failed to adjust the principles underpinning the availability of citizenship by descent.

Women’s inability to transmit British nationality by descent remained unaddressed until 1979 when the Home Secretary (Merlyn Rees) explained in writing that he would in future exercise his discretion under section 7(1) of the 1948 Act, to cause a British citizen’s minor child be registered as a British subject on his or her parent or guardian’s application, in favour of any minor child of a British born woman. Similar to this policy change, further promises made regarding the enactment of legislation addressing the transmission of citizenship in the female line failed to remedy Romein’s situation because her mother was born outside the UK.

The limitation to descent through the male line for the future was removed by the 1981 Act’s entry into force on 1 January 1983. The legislation abolished acquisition of nationality by children of British nationals by descent by the registration of their births at a consulate. It was still possible to acquire nationality in similar circumstances by registration with the Home Secretary but this was restricted to descent through the male line. The UK’s ratification, in 1986, of the UN Convention on the Elimination of All Forms of Discrimination Against Women meant that men and women enjoyed equal rights in relation to the nationality of their children. But the UK’s ratification was subject to a reservation that the five-year transitional provision in the 1981 Act would continue to apply. Persons born before the 1981 Act’s commencement continued to benefit from the 1979 policy until the end of 2000 at which point the last person born during the currency of the 1948 Act ceased to be a minor.

Subsequently, following a gap of more than two years, section 13 of the Nationality, Immigration and Asylum Act 2002 came into force on 30 April 2003. After two decades it retrospectively amended the 1981 Act by inserting a new section 4C – dubbed “a dense and at times impenetrable piece of drafting” by Fransman – which allowed those born before 1983 to acquire citizenship through the female line. Subsequently section 45(3) of the Borders, Citizenship and Immigration Act 2009 replaced the original provision with a similar but not identical version of section 4C.

Against that background, Romein applied for registration as a British citizen pursuant to section 4C but her application was refused on 20 June 2013 because she was unable to satisfy the condition of registration within a year. This decision was maintained on 18 September 2013. Paradoxically, she was unable to register in a timely manner because although the law was presently deemed at all material times to have allowed claims to citizenship by descent through the female line, when Romein was born in 1978 the relevant British consular staff would have refused to register her birth because she was ineligible for citizenship under the law as it then stood. In response, she initiated judicial review proceedings and sought to have the decisions reduced. At first instance, the Lord Ordinary (Lord Brailsford) upheld the refusal of her application.

The Inner House, Court of Session

Finding it their “duty to penetrate even the apparently impenetrable”, Lord Brodie, Lady Dorrian and Lord Malcolm allowed Romein’s reclaiming motion against Lord Brailsford’s decision because there was no good reason to limit the scope of section 4C(3) as originally enacted in 2002. Moreover, Lord Brodie found it inherently unlikely that the revised version enacted in 2009 had intended to reintroduce previously discarded aspects of gender discrimination.

On a proper and purposive construction of section 4C(3), Romein was entitled to be registered as a British citizen if she could prove that she would have become a CUKC by virtue of section 5 of the 1948 Act if the assumption in section 4C(3A) – or Assumption A – had applied at the material time. Under the assumption, section 5 of the 1948 Act provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father as if the law had always provided for citizenship by descent through the female line. The court quashed the refusal of the citizenship application and remitted it for reconsideration.

The Supreme Court

Lady Hale, Lord Sumption, Lord Reed, Lord Hodge and Lady Black unanimously dismissed the Advocate General’s appeal, albeit on a different footing to the reasoning propounded by the Inner House on the important question of the correct statutory interpretation of section 4C of the 1981 Act.

The answer was “reasonably clear” if the affidavit sworn by Romein’s mother was accepted. If the consular officials in Johannesburg had been empowered to apply Assumption A, then her attempt to register the birth would have succeeded at all events. Conversely, a mother who was aware of the legal impediments would not bother trying to register her child and she would thus not be able to adduce evidence in the form of a sworn affidavit like Romein’s mother had done. But that court found no reason “why that should make any difference.”

To Lord Sumption’s mind, Romein’s ineligibility for citizenship as a consequence of her inability to satisfy the condition of registration within a year after her birth was a dichotomy that demanded some scrutiny. He identified three possible solutions to the conundrum.

(i) Three Possibilities

On the first approach, section 4C operates on the assumption that section 5 of the 1948 Act had always provided for citizenship by descent through the female line and that consular officials of the day in fact acted on that basis. Under the terms of section 4C(3), Romein “would … have become a citizen” under section 5 of the 1948 Act if Assumption A had applied, because on that analysis consular officials would have registered her. Indeed, this was the thrust of Romein’s case and the Inner House substantially adopted it.

On the second approach, section 4C operates on the assumption 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 actually were. Consequently, applications based on descent through the female line must always fail in cases where citizenship was dependent on the fact of registration under section 5(1)(b). The government relied on this argument and Lord Brailsford substantially accepted it at first instance.

Under the third option – which did not feature in earlier proceedings but was favoured by the Supreme Court – 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.

(ii) Lord Sumption

His Lordship found “formidable difficulties” with the counterfactual assumption underpinning the first hypothesis. Notably, the counterfactual assumption that consular officials would have registered Romein’s birth is at variance with section 4C(3D) of the 1981 Act whereby “it is not to be assumed” that the registration requirement had been fulfilled. Lord Sumption did not accept the Inner House’s view that section 4C(3D) operates only to place on the applicant the burden of proving her claim without the aid of any presumption of fact because the drafting of subsection (3D) negates that notion. In any event, the applicant would bear the burden of proving her claim.

Moreover, a conceptual problem arose with respect to making section 4C’s operation a function of a belated enquiry about whether a parent would have wished or intended or attempted to take advantage of a then non-existent right. Finally, if the counterfactual assumption includes an assumption about the actions which the parents would have undertaken to try to obtain British citizenship for their children, then it would be possible for an applicant to seek citizenship by descent on the ground that the mother would have moved to a British-controlled territory for the birth, or that a parent would have entered or continued in Crown service in time for the birth. With that in mind, Lord Sumption held that:

10. … 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.

Applying the second approach, which accorded with the literal words of section 4C, produced the result that British citizenship through matrilineal descent would be available under section 5(1)(b) of the 1948 Act only where persons were registered in error or in violation of the regulations. The court found it difficult to see why Parliament should have intended to help only these individuals. Lord Sumption rejected the belief that the intention behind section 4C was to allow claims to citizenship by descent from a woman only in cases where citizenship followed automatically from certain specified circumstances and was independent of a person taking steps, such as registering a birth.

As currently drafted, section 4C “would be an extraordinary way” of achieving that goal. Parliament did not intend this because “it would have significantly undermined the purpose of section 5(1)(b) of the 1948 Act for no discernible reason.” Since section 4C of the 1981 Act required an assumption that section 5 of the 1948 Act had always provided for citizenship through matrilineal descent:

12. … 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.

Lord Sumption’s ingenious but simple solution was to treat the registration condition in section 5(1)(b) as inapplicable in applications for citizenship by descent from the mother. This is the only way to give effect to section 4C(3) because section 4C(3D) precludes any counterfactual assumption that the birth was registered. The court rejected two objections to this neat solution.

Since it did not affect Romein’s case, the court preferred not to decide the point whether its approach leads to unacceptable discrimination between those born before and after the 1948 Act entered into force. It was sufficient to observe that the difference, if any, between the treatment of those two categories of people is not anomalous and arises from the wording of the 1981 Act (as amended). The court equally rejected the second objection that its solution manifested an alternative form of gender discrimination because claimants through the female line would be released from the registration condition whereas claimants through the male line under the previous law were not. Dismissing the appeal, Lord Sumption held that:

15. … 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.

Clearly, no current discrimination existed between applicants. There was no anomaly and section 4C simply corrects the existing consequences for affected mothers’ children of this historic discrimination.

Comment

By correcting the state of the law and by dismissing the government’s appeal, the Supreme Court has opened the door to British citizenship through matrilineal descent to children born between 1949 and 1983. The decision thus potentially aids a significant cohort of people. But many of its beneficiaries will hold other nationalities and will be settled elsewhere to want to enjoy the benefits conferred by British citizenship.

The ruling prompted the Home Office to amend its guidance which now states that persons born between 1 January 1949 and 31 December 1982 (inclusive) to a British mother are free from the requirement that their birth must have been registered with a UK consulate in the 12-month period after their birth. However, the updated guidance fails to specifically acknowledge any gender based historic injustice in the ongoing discourse of British citizenship. Inexplicably, no reference is made to the Supreme Court’s decision and the updated guidance merely records a “clarification on the application of section 4C(3A) of the British Nationality Act 1981”.

This landmark decision – or Shelley’s Law in shorthand – desperately wants to remedy the deeply discriminatory nature of British nationality law. However, its limits are fully exposed by Alison Harvey’s sagacious counsel that “nationality law does not so easily escape its past.” Harvey has vividly shown that Shelley’s Law is far from perfect because even after this apex court victory “children born to British mothers before 1 January 1983 are not put in the same position as British fathers” because of the imposition of a good character requirement. The clear result is that “section 4C does not right historical wrongs for all those now living, or for future generations” and Harvey’s critical deconstruction of these dense issues in Nationality Law: Righting the Wrongs of History? illuminates the somewhat cosmetic nature of this judgment.

Prior to Romein, in Johnson [2016] UKSC 56, the Supreme Court corrected historic injustice against illegitimate children of British citizen fathers born before 1 July 2006 who had been precluded from automatic citizenship because of their parents’ marital status. Johnson’s parents – a British father and a Jamaican mother – were unmarried. He was born in 1985 in Jamaica. Aged four he came to live in the UK with his father. He was granted ILR in 1992. He would have been British had he been legitimately born, or his parents married after his birth, or simply if his mother had been British. He would have obtained British citizenship if he or his father had made an application while he was still a child and, if over 16, of good character.

Johnson’s “foreign” criminality meant that the issue arose in an invidious context. Yet this trait alone was incapable of overriding the rights of those born to unwed parents like him. Lady Hale held that even though the ECHR does not guarantee the right to acquire a particular citizenship, the denial of citizenship has such an important effect upon a person’s social identity that it lies sufficiently within the ambit of article 8 to trigger the application of the prohibition on discrimination in article 14.

Equally, birth outside wedlock constitutes a “status” for the purpose of article 14 and falls within the class of suspect grounds, where very weighty reasons are required to justify discrimination. In cases where citizenship had not been automatically acquired at birth, to ensure certainty it is reasonable to expect a person to apply for citizenship, even if that person is entitled to be registered if they do so. However, it is unreasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents’ marital status, have automatically acquired citizenship at birth.

Through the insertion of sections 4F, 4G, 4H and 4I, the 1981 Act was amended by section 65 of the Immigration Act 2014 to give a specific right to be registered to people who were prevented from acquiring citizenship automatically because their father was not married to their mother. Lady Hale made a declaration of incompatibility under section 4 of the Human Rights Act 1998 in connection to the good character requirement imposed on applications for registration of British citizenship by paragraph 70 of Schedule 9 to the 2014 Act, which amended section 41A of the 1981 Act purporting to impose a requirement that an applicant for British citizenship who, but for their illegitimacy, would have automatically acquired citizenship at birth should also be of good character.

Perhaps beneficiaries of Romein who fall foul of the good character requirement should try to invoke Johnson to their advantage to expand the reach of their claim pursuant to section 3C. Lastly, it is important to recall Alison Harvey’s telling thesis that in Johnson and Akinyemi [2017] EWCA Civ 236 – another case involving a foreign criminal and the good character requirement – “the courts were attempting to right the wrongs of history applying broad principles, rather than, as in Romein, detailed statutory provisions designed to right such wrongs.”