The Advocate General for Scotland v Romein (Scotland) (Rev 1) [2018] UKSC 6

Ms Romein, born in the US in 1978 to a British-descended mother, was refused UK citizenship because her birth had not been registered at a consulate within a year. The Supreme Court held the registration condition inapplicable to female-line descent claims under section 4C.

Facts

Shelley Elizabeth Romein was born in the United States on 16 June 1978. Her father was a US citizen with no UK connection. Her mother, born in South Africa, was a citizen of the United Kingdom and Colonies by descent through Ms Romein’s grandfather, who had been born in the UK in 1905. While pregnant, Ms Romein’s mother enquired at the British consulate in Johannesburg about British citizenship for her unborn child and was correctly told the child was ineligible because the claim was through the maternal line.

Under the British Nationality Act 1948, section 5(1)(b), citizenship by descent from a father who was himself a citizen by descent required registration of the birth at a British consulate within one year. Citizenship could not be transmitted through the female line at all. The British Nationality Act 1981 removed the male-line restriction prospectively from 1 January 1983, and in 2003 (later replaced in 2009) section 4C was inserted to allow retrospective claims by those born before 1983. Section 4C requires decision-makers to apply ‘Assumption A’ — that section 5 of the 1948 Act had always provided for descent from the mother on the same terms as from the father.

When Ms Romein applied for citizenship in 2013, her application was refused because her birth had not been registered within a year — something that could not have occurred given the law at the time.

Issues

The central issue was how section 4C of the 1981 Act (as amended), together with Assumption A, operated in relation to the registration condition in section 5(1)(b) of the 1948 Act. Specifically, whether an applicant claiming citizenship by descent through the female line had to satisfy the registration requirement, given that consular officials would never have registered such a birth at the material time.

Arguments

Respondent (Ms Romein)

Ms Romein argued, as accepted by the Inner House, that section 4C required a counterfactual assumption not only as to the law but also that consular officials would have acted on Assumption A and registered her. On that basis she ‘would have become’ a citizen under section 5(1)(b) of the 1948 Act.

Appellant (Advocate General for Scotland)

The Advocate General argued that Assumption A required section 5 to be read as providing for citizenship by descent from a mother on the same terms, including the registration condition. Section 4C(3D) prevented any assumption that registration had occurred, so the applicant had to prove the condition had in fact been met. Since Ms Romein’s birth had not been registered, her claim failed.

Judgment

Lord Sumption (with whom Lady Hale, Lord Reed, Lord Hodge and Lady Black agreed) identified three possible interpretations and rejected both of those advanced below.

The Inner House’s approach (counterfactual assumption about consular action) was rejected for three reasons. First, subsection (3D) prohibits the assumption that registration ‘requirements’ were met, and registration is a requirement of section 5. Secondly, the approach would make the operation of section 4C depend on a speculative inquiry into what steps parents would have taken had the law been different. Thirdly, the same logic would extend to sections 5(1)(a) and (c), raising unanswerable questions about whether parents would have moved to British territory or entered Crown service, which Parliament could not have intended.

The Advocate General’s approach was also rejected. Although literally faithful to the statutory wording, its effect was to render section 4C inapplicable to substantially all claims based on section 5(1)(b) — save the anomalous cases where ineligible births had been registered unlawfully. This would significantly undermine the provision’s purpose for no identifiable rational reason. Had Parliament intended to exclude section 5(1)(b) claims, it would have limited section 4C’s reference to sections 5(1)(a), (c) and (d).

Lord Sumption adopted a third solution: because section 4C requires the assumption that section 5 had always provided for female-line descent, the registration condition in section 5(1)(b) simply cannot be applied to such claims, as its application would make nonsense of Assumption A. Consular officials had for nearly 70 years refused to register such births, and any purported registration would have been legally ineffective. Given that (3D) forbids assuming registration had occurred, the only coherent reading is that the registration condition is inapplicable where citizenship is claimed by descent from a mother.

The court rejected two objections. First, any differential treatment between those born before and after 1 January 1949 arises from the different wording of subsections (3C) and (3D) and is not anomalous. Secondly, the absence of a registration condition for female-line claims does not amount to current gender discrimination between applicants; section 4C simply corrects the subsisting consequences of historic discrimination between their parents.

Implications

The decision resolves a statutory paradox in the operation of section 4C of the British Nationality Act 1981. It confirms that persons claiming British citizenship by descent through the female line under section 4C, by reference to section 5(1)(b) of the 1948 Act, are not required to demonstrate that their births were registered at a British consulate within a year. The registration condition is treated as inapplicable to such claims because applying it would be incompatible with the counterfactual premise of Assumption A.

The ruling matters to individuals born abroad before 1983 whose only claim to British citizenship was through their mother’s line of descent. It ensures that the remedial purpose of section 4C — to correct historic sex discrimination in the transmission of British nationality — is not defeated by a registration condition that could never have been satisfied under the law as it then stood.

The court expressly declined to decide the parallel question concerning those born before 1 January 1949 under section 4C(3)(b) and (c) and the differently worded subsection (3C), leaving that point open. The decision is grounded in the specific statutory structure of section 4C and should not be read as extending beyond the interpretive problem it addresses.

Verdict: The appeal was dismissed. The decision of the Inner House in favour of Ms Romein was affirmed, albeit for different reasons: the registration condition in section 5(1)(b) of the British Nationality Act 1948 is inapplicable to claims for citizenship by descent through the female line made under section 4C of the British Nationality Act 1981 (as amended).

Source: The Advocate General for Scotland v Romein (Scotland) (Rev 1) [2018] UKSC 6