Reclaiming Motion By Shelley Elizabeth Romein Against The Advocate General For Scotland On Behalf Of The Secretary Of State For The Home Department

JurisdictionScotland
JudgeLord Brodie,Lady Dorrian,Lord Malcolm
Judgment Date01 April 2016
Neutral Citation[2016] CSIH 24
CourtCourt of Session
Date01 April 2016
Docket NumberP1107/13
Published date01 April 2016

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 24

P1107/13

Lord Brodie

Lady Dorrian

Lord Malcolm

OPINION OF THE COURT

delivered by LORD BRODIE

in the Reclaiming Motion

by

SHELLEY ELIZABETH ROMEIN

Petitioner and Reclaimer;

against

THE ADVOCATE GENERAL FOR SCOTLAND

ON BEHALF OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Act: McBrearty QC, Irvine; McGill & Co Solicitors

Alt: Johnston QC, Komorowski; Office of the Advocate General

1 April 2016

Introduction
[1] The petitioner, Shelley Elizabeth Romein, has applied for registration as a British citizen pursuant to section 4C of the British Nationality Act 1981, as amended by the Citizenship and Immigration Act 2009. The respondent, the Secretary of State for the Home Department, by a decision intimated on 20 June 2013, refused that application. On 18 September 2013 the respondent decided to maintain her previous decision. By way of application for judicial review the petitioner seeks reduction of these decisions and certain declarators.

[2] The petitioner, who was born in the United States on 16 June 1978, claims British citizenship through descent from her mother. The petitioner’s father was a citizen of the United States. The petitioner is a United States citizen by virtue of her birth. However, the petitioner’s mother, who was born in South Africa on 16 February 1948, is a British citizen by virtue of her father having been born in the United Kingdom. The petitioner’s mother was in South Africa at a time when she was pregnant with the petitioner. The petitioner avers that while her mother was in South Africa she contacted the British consulate in Johannesburg enquiring about the possibility of securing British citizenship for her then unborn child. The petitioner was informed by a consular official that registration of the forthcoming child’s birth would serve no purpose, as nationality could only be passed through the male line. As a consequence of that advice, the petitioner’s mother did not register her birth, when that event occurred, with the British consulate.

[3] On these averments, which the petitioner offers to prove, and on a proper construction of section 4C of the 1981 Act, the petitioner claims that she is entitled to be registered as a British citizen and therefore that the respondent’s decision of 20 June 2013 to refuse her registration was unlawful. The Lord Ordinary has rejected that claim and upheld the decision of the respondent, and this on the basis that the petitioner’s proposed construction of the relevant statutory provisions was flawed. The petitioner now reclaims. If the petitioner’s primary argument were not to be made out then other lines of argument might be available to her but for present purposes this court is only concerned with the proper construction of section 4C.

[4] The leading textbook on nationality law describes section 4C as “a dense and at times impenetrable piece of drafting” (Fransman, Fransman’s British Nationality Law (3rd edit) para 17.7.2.1). Nothing in our experience of endeavouring to find what must be taken to be the intended meaning of this provision would lead us to disagree with that characterization. It is however our duty to penetrate even the apparently impenetrable. Having done so to the best of our ability, we have concluded, for the reasons set out below, that the petitioner’s proposed construction of section 4C is to be preferred over that proposed by the respondent. We intend therefore to recall the Lord Ordinary’s interlocutor of 22 January 2015 and reduce the decisions complained of. It may also be appropriate to grant a declarator but perhaps not in the precise terms sought in the petition. We shall accordingly appoint the matter to be brought out by order when, in the absence of agreement between the parties, the appropriate orders consequent upon the terms of this opinion can be discussed.

The historical background
[5] Counsel for the petitioner, like, in his turn, counsel for the respondent, adopted his written note of argument but, having acknowledged that the reclaiming motion turned on the construction of section 4C of the 1981 Act, he began his submissions with a review of the legislative history of what is now British citizenship and, in particular, the acquisition of citizenship by descent from a parent who was not born in the United Kingdom or other British possession. His starting point was the British Nationality and Status of Aliens Act 1914.

[6] Section 1(1) of the 1914 Act deems to be “natural-born British subjects” persons born: (a) within His Majesty’s dominions and allegiance; (b) out of His Majesty’s dominions and allegiance but whose father fulfils any of five specified conditions; or (c) on board a British ship. The wife of a British subject is deemed by section 10 of the Act to be a British subject, but otherwise becoming a British subject depends upon naturalization as provided for by Part II of the Act. A feature of section 1(1)(b) (and, indeed, section 10) is gender discrimination. A person shall be deemed to be a natural-born British subject if the person’s father fulfils any of the specified conditions. That the person’s mother fulfils the conditions is neither here nor there.

[7] The section 1(1)(b) condition to be fulfilled by the British subject father if his child is to be deemed a natural-born British subject which is of particular interest, is (v) and that is:

“[the person’s] birth was registered at a British consulate within one year or in special circumstances, with the consent of the Secretary of State, two years after its occurrence ...”

Counsel for the petitioner pointed to the feature that a person becomes a British subject by virtue of section 1(1)(b)(v) of the 1914 Act by reason of a step taken by the person’s parent. It does not depend upon an exercise of discretion by the Secretary of State. This is in contrast to the process whereby an alien may be naturalized in terms of section 2. In such a case the alien must make an application and the Secretary of State must be satisfied of a number of things, some of which are quite subjective, for example that the alien is of good character and has an adequate knowledge of the English language. If the Secretary of State is so satisfied he may grant a certificate of naturalization. The alien must swear an oath of allegiance before the certificate of naturalization takes effect. Provision is made by section 19(1)(a) for regulations in respect of the registration of certificates of naturalization.

[8] Section 1(1)(b)(v) of the 1914 Act was repealed by section 1(1) of the British Nationality and Status of Aliens Act 1943. It was replaced by section 1(2) of the 1943 Act which made some alteration to the relevant time limit but again provided that a person born outside His Majesty’s dominions whose father was at the time of the birth a British subject shall be deemed to be a natural-born British subject provided that the person’s birth is registered at a British consulate.

[9] On its commencement on 1 January 1949 the British Nationality Act 1948 effected a more radical reshaping of British nationality. It introduced the concept of a citizen of the United Kingdom and Colonies, having, by virtue of that citizenship, the status of a British subject. The routes to citizenship are indicated by the cross-headings in Part II of the Act: citizenship by birth or descent; citizenship by registration (of citizens of specified countries, of wives and of minors); citizenship by naturalization; and citizenship by incorporation of territory. Citizenship by birth is provided for, in straightforward terms, by section 4. Subject to two limited provisos (that the father is not the envoy of a foreign power or enemy alien) any person born within the United Kingdom and Colonies shall be a citizen of the United Kingdom and Colonies. Citizenship by descent is a little more complicated. The relevant provision is section 5. The focus of the present petition and the reclaiming motion is citizenship by descent where the birth was in a foreign country but was registered in a consulate, which in the 1948 Act is provided for by subsection(1)(b) but it is convenient to reproduce section 5 in its full terms:

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

(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;

(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.”

Thus, the structure of section 5(1) is to begin with the statement that a...

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2 cases
  • The Advocate General for Scotland v Romein
    • United Kingdom
    • Supreme Court (Scotland)
    • 8 February 2018
    ...[2018] UKSC 6 THE SUPREME COURT Hilary Term On appeal from: [2016] CSIH 24 Lady Hale, President Lord Sumption Lord Reed Lord Hodge Lady Black The Advocate General for Scotland (Appellant) and Romein (Respondent) (Scotland) Appellant David Johnston QC Julius Komorowski (Instructed by Office ......
  • Namit Jetly v The Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 11 February 2019
    ...position under the 1971 Act, he did not acquire his citizenship in the United Kingdom. The Scottish case of Romein v AG for Scotland [2016] CSIH 24 on which Mr Jafar sought to rely is distinguishable, because in that case the applicant's grandfather was born in the 156 To the extent the me......

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