We are very pleased to report success for our client (the petitioner and reclaimer) at the Inner House of the Court of Session in this judicial review of a nationality decision. The case is Romein v the Secretary of State for the Home Department.
It is probably fair to say this case involves an esoteric point, indeed Lord Brodie confirms his agreement with the definitive text book's* assessment of the provision at issue as being 'a dense and at times impenetrable piece of drafting'.
However the Inner House also fulfils its duty 'to penetrate even the apparently impenetrable' and the decision is an impressive consideration of an extremely complex topic. As was commented by the bench during the case, the submissions from both sides were very well presented.
I will only attempt to summarise the case here, it bears careful reading and a summary is no substitute. However in a nutshell the petitioners case focused upon section 4C of the British Nationality Act 1981 (an amendment from 2009). Section 4C was an attempt to remedy, to a degree, sex discrimination that was inherent historically in nationality law. How the section achieved this was to enable a decision maker to engage in the consideration of hypothetical 'counter-factual' assessments. Namely that they could consider the consequences that would have resulted if historical legal provisions which as a matter of fact did not permit the transmission of citizenship from mother to daughter, in fact did so permit.
To take the wording from the 1981 Act, the 'assumption' that could be made by the decision maker was that:
"section 5 or 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 Act (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and
references in that provision to a father were references to the applicant's mother."
By making this assumption the decision maker could then consider whether the applicant, but for the gender discrimination, 'would have become a citizen of the United Kingdom and Colonies at some time before 1st January 1983' (the coming into force of the 1981 act).
The difficulty for the petitioner was that citizenship by descent from her mother, under section 5(1) of the hypothetical 1948 Act, would have in addition required the consular registration of her birth. This did not occur. The petitioner's mother's position was that she had investigated the possibility of registering the birth at the time and was told there would be no point in doing so; which was correct in the late 1970s when gender discrimination prevailed and citizenship could not transmitted down the female line.
The government's position (as respondent) was that whilst section 4C permitted the decision maker to engage in a hypothesis of what would have happened had the law not discriminated on the basis of gender, this was a restricted consideration by virtue of section 3D of the Act which states:
"...it is not to be assumed that any registration or other requirements of the provisions ...were met."
Therefore the argument was, in brief, that whilst a decision maker can consider if a female 'would have become' a citizen had the law not discriminated, it was not permissible to in addition consider if a mother would have taken the required precedent step to register her child's birth in these circumstances. One counterfactual assessment was permitted, but not the second. The second counterfactual which was impermissible, according to the respondent, was any contention that exception b to section 5(1) of the 1948 Act, which required consular birth registration to transmit citizenship in this case, would have been satisfied on the basis of an evidenced intention by the mother.
As the court noted: " The argument on behalf of the respondent was that “it is not to be assumed” where it appears in subsection (3D), means that it is impermissible to employ a legal fiction so as to suppose that registration had taken place. In effect, subsection (3D) closes off inquiry as to counterfactual possibilities and therefore as registration had not historically been available (or at least registration in conformity to the statute and relevant regulations had not historically been available) where the child could only rely on its descent from its mother, section 4C(3)(a) had no application to exception (b) to the proviso to section 5(1) of the 1948 Act."
The court however found in favour of the petitioner's contention, that essentially there was nothing within the drafting that excluded the possibility of an applicant demonstrating what her mother would have done if the law had been fair, through appropriate evidence.
"However, where there is no provision which expressly excludes exception (b) as a way by which an applicant “would ... have become” a citizen, we do not see that it can be excluded by implication. That it might be difficult for an applicant to prove that exception (b) would have applied to his or her case does not have the result that the construction contended for by the petitioner is unworkable. Courts of law are very familiar in a variety of different contexts with deciding what would have happened had events or circumstances been different than they were, even where doing so requires coming to a view as to how the people involved were likely to have acted. We are simply not persuaded by the respondent’s submission that where entitlement to citizenship depends on matters of uncertain fact, one would expect to find the formulation “the Secretary of State is satisfied that the applicant would ... have become a citizen of the United Kingdom and Colonies”. No doubt the statute might have been framed in these terms (section 6(3) of the 1943 Act provides an example of a similar provision) but, as the petitioner submitted, that would have been to shift what ex hypothesi is the meaning of the provision from an entitlement to citizenship to a recognition of citizenship at the discretion of the Secretary of State."
The court concluded:
"We can now summarise our overall approach. There is no good reason to limit the scope of section 4C(3) as first enacted in 2002, and it is inherently unlikely that the revised version in 2009 was intended to reintroduce aspects of gender discrimination previously discarded. On the contrary, the intention in 2009 was to broaden the sweep of section 4C, for example to cover other routes to British citizenship beyond section 5 of the 1948 Act.
The terms of section 4C as enacted in 2009 provide for a successful application if, amongst other things, it can be proved that the birth of a person would have been registered had section 5 of the 1948 Act provided for citizenship by descent from a mother or a father in equal terms. Subsection (3D) is framed in the negative. It excludes things, in particular there are to be no assumptions made in favour of the application. For example, as Fransman notes (paragraph 188.8.131.52), there is to be no assumption that a British mother by descent would have registered her child’s birth. The provisions could have, but do not prohibit an application based upon the registration provisions in section 5 of the 1948 Act.
Subsection (3D) simply puts an applicant to proof of his or her claim, in that it is “not to be assumed” that the various criteria for entitlement to citizenship were met. There might be correspondence showing that enquiries were made at the time, but only the mother was a British citizen by descent. In such a case the requirements would be met by proof that registration would have taken place and the applicant would have become a citizen of the United Kingdom and Colonies. On the other hand, a claim might fail because registration would never have taken place in that it would have resulted in loss of citizenship of the place of birth and residence. Or an applicant might be unable to prove that his mother was in Crown service at the relevant time.
In short, subsection (3D) is designed to ensure success only for those applicants who can show that they would have become citizens of the United Kingdom and Colonies if mothers had been treated in the same way as fathers. Were it otherwise, applicants under section 4C might gain citizenship even though they were not victims of discrimination. Furthermore, in our view, the respondent’s approach to subsection (3D) robs section 4C(3) of all effect, since her interpretation cannot be limited to only some of the requirements of the provision.
We find ourselves in respectful disagreement with not only the Lord Ordinary but also the learned judge in Navarro. On a proper construction of section 4C(3) the petitioner is entitled to be registered as a British citizen if she can prove that she would have become a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act if the assumption set out in section 4C(3A) had applied at the relevant time. For completeness we record that the appeal hearing did not address the issues potentially arising under ECHR, since they would be relevant only if the court was against the petitioner on the construction issue. The reclaiming motion will be allowed and the petitioner’s application remitted to the respondent for reconsideration. However, in the meantime we shall put the case out by order for discussion as to the appropriate terms of the court’s interlocutor, including any declaratory orders."
An important win for our client and a fascinating case. However its overall impact and the numbers of potential beneficiaries from the principle established, assuming no further appeal by the government, is hard to gauge. In addition as the court concludes, whether a birth would have been consularly registered will now be a question of evidence and perhaps ultimately a judicial finding as to a mother's intention. This may not be easy to establish in many cases.
* Fransman's British Nationality Law