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Citizenship By Descent Paradox Solved By Supreme Court

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In a recent judgment, Advocate General for Scotland v Romein [2018] UKSC 6, [2018] All ER (D) 44 (Feb) the Supreme Court has resolved the paradox created by the abolition of the rule that British Citizenship by descent could not be transmitted through the female line.

The paradox which has existed up until now is an example of how complex the drafting of legislation can be, and how it can often result in absurdities.

Citizenship by descent and citizenship by ancestry can be confusing, resulting in many clients having to seek legal advice from London’s best Immigration solicitors. This latest decision provides clarity to the citizenship by descent criteria.

The law relating to citizenship by descent

Under the British nationality Act (BNA) 1948, s 5(1), the general rule had been a person could become a British citizen by descent if their father was a British citizen, but if the father was a British citizen by descent, then BNA 1948, s 5(1)(b), also required the person to be registered at a British consulate within one year of the person’s birth. Citizenship by descent could not be transmitted through the mother’s line.

Recognising the discriminatory form of the legislation, in 2003, legislation was passed to allow for citizenship by descent through the female line. Section 4C of the British nationality Act 1981 (BNA 1981) allowed a decision-maker, when considering an application for registration as a British citizen, to assume that nationality law in the past had provided for citizenship to pass down through the mother, in the same way in which it had traditionally for the male line.

The facts of the case

In the case of Advocate General for Scotland v Romein, the respondent was born in 1978 in America. Her father was a US citizen. Her mother was a British citizen by descent, having been born in South Africa to a Welsh father and a Scottish mother. The mother, despite having a desire to pass on her own British Citizenship, was unable to as the law at that time did not provide for the consular registration of a child born to a British mother by descent.

In 2013, the respondent applied for registration under BNA 1981, s 4C. She argued that, but for this historic gender discrimination, her mother would have registered her birth at a British consulate, and on the assumption that consular registration would have taken place had the law permitted it at the time, she would have become a British citizen. On this basis, she argued that she met the requirements of BNA 1981, s 4C.

The Home Office refused the application. A petition for judicial review was lodged at the Scottish Court of Session. The respondent was unsuccessful initially at the Outer House but successful on appeal before the Inner House. The Advocate General appealed on behalf of the Secretary of State for the Home Department against that decision to the UK Supreme Court.

The Supreme Court’s decision

To get around this paradox created by the BNA 1981, section 4C, Lord Sumpton, in delivering his judgment, stated the requirement under the BNA 1948, s 5(1)(b), to have been registered at a British consulate should simply be disregarded. This went significantly further than the respondent had argued for. She stated that because of the paradox created by section 4C, the decision-maker must engage in a ‘hypothetical counterfactual’ exercise and consider what an applicant’s mother would have done, had the law been different at the time. The Home Office simply stated that because registration at a British consulate was impossible at the time because of the legislation in place, all decisions of such nature should be refused. This illustrates clearly the culture of the Home Office at the present time; that any reason for denying an Immigration application will be employed, even if it is grossly unfair to the point of absurdity.

What this decision means for other applicants of British Citizenship by descent

The result of the Supreme Court’s decision may have the effect of modifying certain requirements of citizenship contained in other sections of the BNA 1948. The best Immigration solicitors cite the example of a mother who was in the Crown service at the time of the applicant’s birth. Section 5 (1) (c) of the BNA 1948 provides that decedents of a father who, at the time of the applicant’s birth, “were in Crown service under His Majesty's government in the United Kingdom” may be eligible for citizenship. Section 4C of the BNA 1981 now allows for citizenship to be given if it was the mother working in Crown service at the time. However, what if the documentation proving the applicant’s mother was in Crown service no longer existed? Others in the Immigration law field have expressed a view that in such cases, the interpretation of BNA 1981, s 4C as provided by the Supreme Court be extended to other elements of section 5, which would negate the need to prove the mother was in Crown service.

Further clarification will be required by the courts to establish whether the principle laid out in Advocate General for Scotland v Romein applies to other factual circumstances.

OTS Solicitors is one of the most respected Immigration law firms in London and is a Legal 500 leading firm. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.

For advice on British Citizenship, please contact us on 0203 959 9123 to speak to one of our Immigration consultants.

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