The Advocate General for Scotland v Romein
| Jurisdiction | Scotland |
| Judge | Lord Sumption,Lady Hale,Lord Reed,Lord Hodge,Lady Black |
| Judgment Date | 08 February 2018 |
| Neutral Citation | [2018] UKSC 6 |
| Court | Supreme Court (Scotland) |
| Date | 08 February 2018 |
[2018] UKSC 6
Lady Hale, President
Lord Sumption
Lord Reed
Lord Hodge
Lady Black
Appellant
David Johnston QC
Julius Komorowski
(Instructed by Office of the Solicitor to the Advocate General of Scotland)
Respondent
Kenny McBrearty QC
Lesley Irvine
(Instructed by McGill & Co)
Heard on 6 December 2017
( with whomLady Hale, Lord Reed, Lord HodgeandLady Blackagree)
For some four centuries, the United Kingdom and its component nations have been a major source of emigration. As a result, schemes for defining the right to British nationality have been complicated by the need to accommodate those born abroad but having significant connections with the United Kingdom by descent. Until 1983, the basic principle was that British nationality by descent was available to any person whose father was a citizen of the United Kingdom and Colonies. But if his father was himself a citizen by descent only, then unless the child was born in a British-controlled territory or the father was in Crown service at the time of the birth, it was normally a condition that the birth should be registered at a British consulate within a year. In no case could citizenship by descent be transmitted through the female line. Regulations governing the registration of births by British consuls restricted registration to those eligible for British citizenship.
The respondent, Shelley Elizabeth Romein, was born in the United States on 16 June 1978. Her father was a US citizen with no personal connection to the United Kingdom. Her mother had been born in South Africa and was a citizen of the United Kingdom and Colonies by descent because her father (Ms Romein's grandfather) had been born in the United Kingdom on 1 November 1905. Ms Romein's mother swore an affidavit in which she said that while pregnant with her she spent some time in South Africa and contacted the British consulate in Johannesburg to enquire about British citizenship for her unborn child. She was told, correctly, that the child would not be eligible because her only claim by descent was through her mother.
With effect from 1 January 1983, the restriction to descent in the male line was abrogated by legislation for those born after that date, and 20 years later in 2003 the legislation was retrospectively amended so as to allow those born before 1983 to acquire citizenship through the female line. However, when Ms Romein, who had been born under the old regime, sought to take advantage of the change in 2013, her application for citizenship was rejected on the ground that she was unable to satisfy the statutory condition of registration within a year. The reason why she was unable to do so was that although the law was now deemed at all material times to have allowed claims to citizenship by descent through the female line, the staff of British consulates, acting entirely properly under the law as it actually was, would have refused to register her birth because she was ineligible. A result so paradoxical clearly calls for scrutiny.
The exclusion of claims to British citizenship by descent through the female line is a curious survivor of redundant social and political priorities. At common law, English nationality was based on allegiance. It was acquired by birth within the King's realm or by marriage to an Englishman. Nationality by descent was wholly statutory and available under a statute of 1351 only where the child was born outside the realm to parents both of whom were English: see 25 Ed III, cap 1. It followed that an English woman who married an alien could not transmit her English nationality to her child born outside the realm. The Naturalization Act 1870 abolished the common law principle that allegiance was indelible, and provided for a woman to lose her British nationality upon marriage to an alien. From this it followed that no question could arise of transmission of British citizenship by descent through the female line alone.
The position was formalised by the British Nationality and Status of Aliens Act 1914, which was the first statute comprehensively regulating eligibility for British nationality. A valuable account of the historical background to this legislation will be found in M P Baldwin, “Subject to Empire: Married Women and the British Nationality and Status of Aliens Act”, Journal of British Studies, xl (2001), 522. The Act arose from the Imperial Conference of 1911, in which the United Kingdom and the Dominions had agreed upon the principle of a common imperial nationality. A number of its provisions reflected concern among the Dominions that a common imperial nationality would undermine their attempts to restrict the right of entry by “undesirables”. The common nationality was therefore restricted with a view to meeting these concerns. The 1914 Act repealed the statute of 1351. Section 10 reproduced the effect of the Naturalization Act 1870 by providing that the British wife of an alien would become an alien on her marriage. Consistently with these provisions, section 1(1) of the 1914 Act as originally enacted defined a British subject as (a) any person born within His Majesty's dominions and allegiance, and (b) any person born elsewhere whose father was a British subject. This provision was amended by the British Nationality and Status of Aliens Acts of 1918 and 1922. In its final form, the Act made (b) dependent on the father satisfying any one of five conditions, the most significant of which was condition (v), which was that the birth of a child born outside His Majesty's dominions must be registered at a British consulate within a year or in special circumstances and with the consent of the Secretary of State within two years. Section 1 of the British Nationality and Status of Aliens Act 1943, repealed condition (v) and replaced it with a provision to substantially the same effect but authorising the Secretary of State to permit registration at any time. The Report of the Joint Select Committee on the Nationality of Married Women (24 July 1923) recorded the main reasons advanced by the Foreign Office in support of these measures: the dominant role of the husband in shaping the cultural affiliation of the family, the problems under British diplomatic practice of affording consular protection to British citizens with dual nationality, the need to maintain commonalty with the Dominions and the desirability of deterring certain mixed marriages which were “in the women's case nearly always most undesirable.”
The Act of 1914 was superseded with effect from 1 January 1949 by the British Nationality Act 1948, which was the statute in force at the time of Ms Romein's birth. The occasion for the new Act was the Commonwealth Conference of 1947 on nationality and citizenship, which agreed that each of the Dominions should in future legislate for its own citizenship instead of sharing in a common British citizenship. This made it possible for the new Act to abrogate the rule that British women who married aliens lost their nationality. But it did not alter the basic principles on which citizenship by descent was available. Section 5 provided:
“5.(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; or
(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.”
Nothing was done to remedy the inability of women to transmit British nationality by descent until 1979. Under section 7(1) of the Act of 1948 the Secretary of State had a discretion to cause a minor child of a British citizen to be registered as a British subject on the application of his or her parent or guardian. On 7 February 1979, Mr Merlyn Rees, the then Home Secretary, made a written statement in the House of Commons that he would in future exercise this discretion in favour any minor child of a woman who was herself born in the United Kingdom. He added that in due course legislation would be introduced to address more generally the transmission of citizenship in the female line: Hansard HC vol 962, cols 203–204W. Since Ms Romein's mother had not been born in the United Kingdom, this change of policy made no difference to her situation. Neither did the promised legislation, when it was eventually enacted. The British Nationality Act 1981, which came...
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