Luis Maria Navarro v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Turner |
| Judgment Date | 02 March 2015 |
| Neutral Citation | [2015] EWHC 507 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 March 2015 |
| Docket Number | Case No: CO/10840/2013 |
[2015] EWHC 507 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Civil Justice Centre
Manchester
Mr Justice Turner
Case No: CO/10840/2013
Mr J Martin for the Claimant
Mr T Eicke QC and Mr M Donmall (instructed by TSols) for the Defendant
Hearing date: 12 th February 2015
INTRODUCTION
Doctor Luis Maria Navarro is from Argentina. In this litigation he lays claim to what, in more jingoistic times, was memorably described as "first prize in the lottery of life", namely, British citizenship. He comes before this court contending that the Home Secretary has wrongly refused to issue him with the winning ticket to which he is entitled.
THE BACKGROUND
Dr Navarro's maternal grandfather was born in Brighton in 1897. It is from him that he stakes his claim to British citizenship. Dr Navarro's mother, however, was born in Argentina in 1948 and went on to marry an Argentinean.
After his birth in Argentina in December 1973, Dr Navarro contends that his mother asked at the British Embassy if her baby son could be registered as a British citizen but was informed that he could not. There matters lay until February 2001 when Dr Navarro arrived in London to study under a visa lawfully obtained for the purpose. He remained in this country for about six years. His experience of life in the United Kingdom must have been a positive one. He made enquiries as to whether he could become a British citizen but the Home Office told him that this would not be possible. He researched into the legal background on the internet and became convinced that he was fully entitled, as a matter of law, to the status he had hitherto been repeatedly denied and, on 14 January 2013, one hundred and sixteen years after the birth of his grandfather, he applied to the defendant to be recognised as a British citizen. The application was made under statute and, alternatively, with reference to the defendant's failure to exercise an alleged residual discretion in his favour.
On 7 February 2013 the defendant refused Dr Navarro's request and similarly refused Dr Navarro's later request for her to reconsider her decision. Judicial review proceedings were commenced on 8 August 2013.
He was refused permission for judicial review on paper. He renewed his application orally before Blake J. who refused permission once more in a judgment to be found at [2014] EWHC 907 (Admin). Dr Navarro's tenacity was, however, to pay off in the Court of Appeal when McCombe L.J. granted permission observing:
"Regrettably (it is probably my fault) I do not understand Blake J's reasoning on the construction of the statutes."
It is these very statutes to which, with a due sense of foreboding, I now turn my attention.
THE LAW
The London Declaration of 1949 saw the birth of the modern Commonwealth. It marked the moment when the "British Commonwealth" became the "Commonwealth of Nations". Earlier in the same year, the British Nationality Act 1948 had come into force. This Act introduced the concept of a "citizen of the UK and colonies" (or 'CUKC').
Paragraphs 4 and 5 of the 1948 Act provided respectively for two categories of citizenship. They were citizenship by birth and citizenship by descent. To an important extent, the citizen by descent, if he were a man, was a second class citizen. And if she were a woman, she was a third class citizen.
By the standards of today, the provisions of the 1948 Act contained a blatant and unacceptable piece of gender discrimination on the face of sections 4 and 5 which, in so far as is material, provided:
"Citizenship of the United Kingdom and Colonies
Citizenship by birth or descent
4 Citizenship by birth
…every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth [ subject to two exceptions not relevant to this case].
5 Citizenship by descent
(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—
…(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;"
Dr Navarro's mother, not having been born in the UK, was a CUKC by descent through the citizenship of her father. But she could not pass on her citizenship to Dr Navarro when he, too, was born abroad because she was a woman and only a father was entitled to register his birth at the UK consulate. Dr Navarro's father could not register him because, as an Argentinean national, he was not a CUKC either by descent or otherwise.
This gender discrimination was duly reflected in the Registration of Births and Deaths (Consular Officers) Regulations 1948 (No 2837) ('the 1948 Regulations').
Regulation 2(1) provided for the keeping of a register of births of CUKCs born after 1 January 1949, by way of Form A in the Schedule, which included under column 6:
"Rank, profession or occupation of father and claim to citizenship of the United Kingdom and colonies"
with a note:
"To be inserted as fully as possible, followed by full particulars of his claim to citizenship of the United Kingdom and colonies". [Emphasis added].
Regulation 5(4) provided:
"In every case the consular officer must satisfy himself fully that the national status of the person whose birth or death he is requested to register is such that the registration could properly be effected under these Regulations."
In short, the effect of the 1948 Regulations, operating in conjunction with the 1948 Act, was that the birth of a child abroad to a CUKC mother by descent could not be registered per se because that child at the time could have no claim to citizenship. It follows that, under the prevailing law at the time, Dr Navarro could not have been registered with legal effect by the UK consulate in Argentina.
That the provisions of the 1948 Act were, by modern standards, bigoted and unfair cannot be doubted. They did, however, at least have the advantage of clarity and it is regrettable that subsequent legislative attempts to mitigate this bigotry have made, in the process, a wholly unnecessary sacrifice of the virtue of simplicity.
The 1979 Rees policy
The first and, some may argue, long overdue, change in the discrimination against women inherent in the operation of the 1948 Act arose not from the provisions of section 5, with which the instant case is directly concerned, but under section 7(1) under which the Secretary of State had a discretion to register a child on the application of the parent or guardian. On 7 February 1979 the then Home Secretary Merlyn Rees stated, in response to a Parliamentary Question, that:
"The registration of minor children as citizens of the United Kingdom and Colonies under section 7(1) of the British Nationality Act 1948 is at my discretion. I have decided to make some alterations to the general policy in dealing with applications by women who were born in the United Kingdom and whose children born overseas are still minors. The practice hitherto has been to refuse registration if it appeared that the child was likely to live overseas or if, when the child was living in this country, the father had taken no steps to seek our citizenship for himself.
In future, registration will not be refused on those grounds and a woman born in the United Kingdom will normally be able to have her child registered, subject to there being no well founded objection by the father - as there could be, for example, if registration would deprive the child of his or her existing citizenship. The notes for the guidance of intending applicants will be suitably amended.
The whole question of transmission of citizenship in the female line will be a matter to be dealt with in future nationality legislation." (HC Official Report, 7.2.79, cols 203–4)
As is evident, this policy ('the Rees policy') was limited in two ways. First, it was a policy on the exercise of the discretionary power to register minors under section 7 of the 1948 Act. Necessarily therefore, it could only be applicable to those who were under the age of 18 at the time the announcement was made, i.e. those born after 7 February 1961. Second, it was limited to those who were born to "a woman born in the United Kingdom". In other words, a child of a UK born CUKC mother other than by descent could benefit from the policy but a child of a CUKC mother by descent could not.
The 1981 Act ended the concept of "citizen of the UK and colonies", and introduced the new status of 'British citizen' whether by birth, adoption, registration, naturalisation or by descent.
In respect of the acquisition of citizenship by descent, the Act finally gave fathers and mothers equal rights. It did not, however, purport to be of retrospective application.
Section 4C of the 1981 Act (as inserted by the Nationality, Immigration and...
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