R Navarro v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 05 February 2014 |
| Neutral Citation | [2014] EWHC 907 (Admin) |
| Date | 05 February 2014 |
| Docket Number | CO/10840/2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 907 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blake
CO/10840/2013
The Claimant appeared in person
Mr M Donmall (instructed by Treasury Solicitors) appeared on behalf of the Defendant
The Claimant renews an application for permission to judicially review decisions made by the defendant in 2013 refusing to register him as a British citizen under the British Nationality Act 1981, as amended (BNA).
In brief, the Claimant is an Argentinian citizen, born in December 1973. His mother was a woman who was born to a father who was himself born in the United Kingdom. Therefore, his mother was from birth a British national and in 1949 became a citizen of the United Kingdom and Colonies when the BNA 1948 came into force.
The Claimant's mother wished to prolong the succession of British nationality in her family and so she applied, within a year of the Claimant's birth, to the British embassy in Buenos Aires to register his birth. She was told by the consular officials that they could not register the Claimant's birth because British citizenship could not be transmitted through the maternal line.
That advice reflected section 5 of the BNA 1948. Section 5(1) of that Act provides that a person who is born to a person who is a citizen of the United Kingdom and Colonies by descent (and that was the status of the Claimant's mother in 1973) cannot transmit citizenship by descent. There are then various provisos to that proposition:
(a) birth in a dependent territory or protectorate;
(b) birth, having occurred in a place in a foreign country other than a place that is mentioned in a), the birth is registered in a United Kingdom consulate within one year;
(c) the father has an exempt occupation of the father; and
(d) other special provisions.
Only sub-paragraph (b) is in issue here. It extends the ability to transmit citizenship by descent by means of a registration of the birth in a British consulate in a foreign country. However, the exercise of discretion to register a birth was restricted to those who might become citizens by descent if the birth was so registered. Under the policy of the BNA 1948 this was deliberately limited to descent in the paternal line.
It was recognised in the intervening years that the policy of nationality law was discriminatory on gender grounds. Men and women are not treated equally; only British fathers could transmit citizenship, not British mothers, and only British fathers could extend the transmission of citizenship under section 5(1) (b) by registering a birth in a foreign consulate.
The British Nationality Act 1981 reformed and replaced the BNA 1948. There extensive debate about the impact of the previous gender discrimination. For births after the coming into force of the BNA 1981 the position was changed and British nationality could be achieved by descent through either a British mother or father. Very little was done about people who were the victims of the gender discrimination. There were two possibilities. First, section 9 of the 1981 Act did permit continued consular registration for a transitional period of five years; but those provisions expired in 1988. Secondly, the Secretary of State had exercise discretion to register children as British citizens, and the policy was to exercise such discretion if a child had a British mother. That mitigated some of the historic discrimination, although policy may have always required some nexus with the United Kingdom. However, the discretion could only be exercised in the case of people who were under 18 and the Claimant achieved the age of majority in December 1991 and no application had by then been made for discretionary registration as a British citizen. His application for recognition as a British citizen was made in 2013
In 2002 Parliament addressed for the first time, the historic discrimination suffered by children born to a British mother before 1983. It amended the BNA 1981 by the insertion of a new Section 4C. This enabled people born after 1961 and before 1983 to register as a British citizen, if but for the gender discrimination preventing mothers transmitting citizenship to their children, they would have become a British citizen.
The Claimant submits to me today that this is his case. He submits that if section 5 of the BNA 1948 had not restricted transmission of citizenship by descent to fathers only and had not also restricted the ability to give citizenship by descent to another generation by one of the means set out in the provisos, he would have become a British citizen because his mother wanted to register...
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Luis Maria Navarro v Secretary of State for the Home Department
...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 i......