The Supreme Court has opened up British citizenship by double descent to all children born to British women in non-Commonwealth countries between 1949 and 1983. Delivering a judgment which makes no attempt to disguise his academic interests as a historian, Lord Sumption delivered a simple solution to a question of statutory interpretation that has been described as “impenetrable” by the leading authority on nationality law (with whom the Inner House agreed) and “paradoxical” by the Supreme Court. The case is Advocate General for Scotland v Romein
[2018] UKSC 6.
Historical gender discrimination
British nationality law was from its inception until 1983 discriminatory towards women. Prior to 1983, British citizenship could only be passed to the next generation born abroad through the male line. This was remedied prospectively, but not retrospectively, by Parliament with the enactment of the British Nationality Act 1981 which commenced on 1 January 1983.
It was not until 2003 that Parliament attempted to retrospectively tackle this historic gender discrimination by opening up the possibility of an application for registration as a British citizen under the newly inserted
section 4C of the BNA 1981. Such an application for British citizenship by descent through the female line must now be dealt with on the assumption that the law had always provided for citizenship by descent from the mother on the same terms as it provided for citizenship by descent from the father.
Between 1949 and 1983, children born outside the UK to British citizen fathers who were also born outside the UK (i.e. fathers who were British “by descent” only) could be registered at a British consulate within one year of their birth (or later subject to the Home Secretary’s discretion) to ensure the child’s acquisition of British citizenship under 5(1)(b) of the British Nationality Act 1948. This form of citizenship, passed from a second generation to a third generation, is sometimes known as citizenship by double descent.
The gender discrimination in this scenario is clear. If the father was British by descent, consular registration of the child’s birth was possible, and citizenship would be transmitted to his child. If only the mother was British by descent, consular registration of the child’s birth, even if it were possible as a matter of fact, would have been of no effect, and it seems likely that the majority of British consular staff, acting entirely properly under the law as then drafted, would simply have refused to register the birth on the basis that the mother was not able to pass her citizenship on to her child.
This was the case for the respondent, Ms Romein.
Ms Romein’s case
Ms Romein was born in 1978 in the USA. Her mother was a British citizen by descent, having been born in South Africa to a Welsh father and a Scottish mother. Ms Romein’s father was a US citizen. Had he been a British citizen as opposed to a US one, it would have been possible for Ms Romein’s birth to be registered at a British consulate within a year of her birth, and the fact of consular registration would have had the effect of automatically conferring British citizenship on Ms Romein. But consular registration for Ms Romein was (quite properly at the time) not permitted by consular staff, despite enquires having been made by her mother with the British High Commission, and Ms Romein was unable to acquire British citizenship. She would later become the only member of her immediate family other than her father not to have done so.
In 2013, an application for registration under section 4C was made on Ms Romein’s behalf. It argued that,