McGill & Co in the Supreme Court

 Crown copyright

Crown copyright

In a judgement handed down this morning, the Supreme Court has opened the door to applications for registration as a British citizen from people born abroad to a British mothers between 1949 and 1983.

The case is Advocate General for Scotland v Romein [2018] UKSC 6. McGill & Co Solicitors acted on behalf of the Respondent, Ms Romein, along with Advocates Lesley Irvine and Kenny McBrearty QC. The case concerned the correct interpretation of the British Nationality Act 1981, in particular the provisions inserted into the Act in 2003 to correct the historic gender discrimination inherent in British nationality law. For a detailed analysis of the judgement, and its implications, head over to the Free Movement blog to read our John Vassiliou’s excellent post on the case.

Ms Romein’s mother is British by decent through her father (Ms Romein’s grandfather) who was born in the UK. Ms Romein was unable to obtain British citizenship following her birth because, at that time, it was not possible for women to pass citizenship on to their children. Had it been her father who was the British citizen, Ms Romein would have been able to acquire British citizenship through registration of her birth at the British consulate within one year of her birth. In 2003 additional provisions were added to the 1981 Act which allowed those deprived of citizenship by this gender discrimination to apply to the Home Office for registration as a British citizen.

In 2013, our firm assisted Ms Romein with an application to the Home Office under these provisions on the basis that, had the law allowed women to pass on their citizenship prior to 1983, her birth would have been registered and she would have become British. The Home Office refused the application as Ms Romein’s birth was not actually registered at the British consulate. The birth was not registered because it was generally not possible for a child born to a British mother to register their birth at a British consulate given that British citizenship law only allowed fathers to pass on citizenship to their children.

The Outer House of the Court of Session agreed with the Home Office, adhering to a strict interpretation of the statutory language. Ms Romein appealed to the Inner House of the Court of Session. The Inner House, adopting a purposive interpretation of the legislative provisions, overturned the Outer House’s decision and concluded that where an applicant is able to prove that, had the law been different, they (or, in practice, their parents) would have registered the birth at the British consulate, they should be granted British citizenship. The Home Office appealed to the Supreme Court.

The Supreme Court agreed with the Inner House that the Home Office’s original decision was wrong, although disagreed with the reasons given by the Inner House. The Supreme Court did not agree that success should be limited to cases where it can be proved registration would have taken place. Instead, the registration requirement must simply be ignored because insisting on that condition would nullify the practical effect of the assumption, required by the amendments to the 1981 Act, that the law prior to 1983 had been free of gender discrimination.

The practical effect of the Supreme Court’s decision is that anyone born abroad to a British mother between 1949 and 1983 can now apply for registration as a British citizen regardless of whether their birth was (or would have been, had the law been different) registered with the British consulate. Anyone looking for assistance with making such an application, or advice on whether they can benefit from the Supreme Court’s judgement, should get in touch via the contact page.