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

Shelley Romein, born in the United States in 1978, was refused British citizenship by descent through her British mother because her birth had not been registered at a consulate. The Supreme Court held that the retrospective assumption that nationality could always have been transmitted through the female line on the same terms as through the male line made that registration condition inapplicable. The Advocate General’s appeal was dismissed.

Facts and the application

Ms Romein was born in the United States in 1978. Her mother was a citizen of the United Kingdom and Colonies by descent through her own British-born father. When she asked about her child’s position, the consulate correctly explained that the law at the time did not permit citizenship to pass on that basis through a mother.

In 2013 Ms Romein applied for registration as a British citizen under provisions allowing certain persons born before 1983 to acquire citizenship through the female line. The application was rejected because she could not satisfy the condition of registration of the birth at a British consulate within a year. Consular staff, acting properly under the law as it actually was, would have refused registration because she was then ineligible.

The statutory scheme

Until 1983, citizenship of the United Kingdom and Colonies by descent was available only through the father. Under section 5 of the British Nationality Act 1948, if the father was himself a citizen by descent only, the child’s birth generally had to be registered at a United Kingdom consulate within one year, or later with the Secretary of State’s permission, unless an exception applied. The British Nationality Act 1981 removed the male-line restriction for those born on or after 1 January 1983 and ended acquisition by consular registration.

Section 4C of the 1981 Act, introduced with effect from 2003 and later revised, provides that a person born before 1 January 1983 is entitled to be registered as a British citizen if specified conditions are met. 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 under section 5 of the 1948 Act if Assumption A had applied. Assumption A is that section 5 provided for citizenship by descent from a mother in the same terms as from a father, and that references to a father were references to the applicant’s mother. Section 4C(3D) states that it is not to be assumed that any registration or other requirements were met.

Three possible readings

Lord Sumption, with whom Lady Hale, Lord Reed, Lord Hodge and Lady Black agreed, identified three logical solutions to the resulting paradox.

Ms Romein’s case, substantially adopted by the Inner House, was that the decision-maker must assume not only that the law had always allowed descent through the mother, but also that consular officials would in fact have registered the birth. Lord Sumption rejected that reading. Registration is a requirement of section 5, and subsection (3D) prevents an assumption that it was met. The reading would also make entitlement depend on a later inquiry into what the parents would have done had a right that did not exist been available, including whether they would have moved to a British-controlled territory or entered Crown service. Only the statutory Assumptions A and B are authorised.

The Advocate General’s case, substantially accepted by the Lord Ordinary, was that only the legal assumption is made and the facts remain as they were. The applicant must therefore show that the registration condition was actually met. Lord Sumption held that this would confine successful claims depending on section 5(1)(b) to anomalous cases in which an ineligible birth had been registered by mistake or in defiance of the regulations. That would make section 4C inapplicable to substantially all claims based on that provision. Given that section 5(1)(b) was likely to found a large proportion of applications, the result would significantly undermine the provision’s purpose. Parliament was unlikely to have intended such a limitation without drafting it expressly.

The Court adopted a third solution. Because section 4C requires the assumption that section 5 had always provided for descent in the female line, the registration condition in section 5(1)(b) cannot be applied to those claiming on that basis: its application would make nonsense of the assumption. British consuls had for decades declined to register births claimed only through the female line, and any purported registration would have been legally ineffective. As subsection (3D) forbids assuming that registration occurred, the only way to give effect to section 4C(3) is to treat the registration condition as inapplicable where citizenship is claimed by descent from a mother.

Further objections

Lord Sumption did not accept that this produced unacceptable discrimination between people born before and after 1 January 1949. Claims by those born earlier depend on differently worded provisions, including Assumption B and a definition of nationality status that excludes acquisition depending on an application for registration. Any difference of treatment arises from differences in statutory language and is not anomalous. He preferred not to decide how those earlier provisions operate, because the point did not affect Ms Romein’s case.

Nor did disapplying the registration condition create gender discrimination between applicants. Fathers could historically transmit citizenship while mothers could not. Section 4C corrects the subsisting consequences of that historic discrimination for the children. There is no current discrimination between applicants.

Verdict: The Court unanimously dismissed the Advocate General’s appeal. Ms Romein’s application could not be refused for lack of a consular registration that the law then in force would not have recognised.

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