The Supreme Court has opened up British citizenship by double descent to all children of British women born between 1949 and 1983.
Historically 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 aboard through the male line. This was remedied prospectively but not retrospectively by the enactment of the British Nationality Act 1983.
In 2003 Parliament attempted to retrospectively tackle this historic gender discrimination by opening up the possibility of an application to register as a British citizen under section 4C of the British Nationality Act 1981. This allowed the possibility for British citizenship by descent through the female line to 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 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 and were British by descent could register their child’s birth at the British consulate within one year of their birth or later subject to the Home Secretary’s discretion, to ensure the child was able to secure 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, known as double descent.
The gender discrimination is clear. If the father was British by descent and registered their child at the consular, the citizenship transferred to his child. If the mother was British by descent and registered the child at the consular, even if possible as a matter of fact, this would have no effect on the outcome, as consular staff would follow the law as drafted and refuse to register the birth on the basis that a mother cannot pass her citizenship onto her child.
In this case Ms Romein is the respondent and was born in 1978 in the USA. Her mother was a British citizen by descent as she was born in South Africa to a Welsh father and a Scottish mother. Ms Romein’s father was a US citizen. Had Ms Romein’s father been British as opposed to US, it would have been possible to register Ms Romein’s birth to be registered at a British consular within a year of her birth and the outcome would have been she qualified for British citizenship. However her mother could not register Ms Romein’s birth, although enquiries had been made.
In 2013 an application for registration under section 4C was made and it was argued but for historic gender discrimination, if the consular staff had accepted her mother’s registration of Ms Romein, she would have become British. It was therefore argued that she met the requirements under s4C of the BNA 1981. The Home Office refused the application.
Registration under s4C of the 1981 Act, the terms are complex but the principle straightforward. If an individual can track through the legislation and demonstrate, had it not been for the law that discriminates against women, they would subject to certain requirements have qualified for citizenship.
For those reliant on consular registration as a route to citizenship, s4C created a problem as no consular registration could take place. The Secretary of State in her defense would not consider the hypothetical scenario that consular registration would have taken place and were unwilling to accept evidence from Ms Romein’s mother in support of this. If this were the position to be held by the Secretary of State then no one in a similar position to Ms Romein would ever be able to register as a British citizen. Lord Sumption said, “ a result so paradoxical clearly calls for scrutiny”. And scrutinize this paradox he did.
He said” the past is done and cannot be undone”, and cuts through this by proposing a simplified way to deal with this issue. Lord Sumption takes the view that “ the past is done and cannot be undone…. The only way in which effect can be given to s4C(3) is to treat the registration condition in s5(1)(b) as being inapplicable in cases where citizenship is claimed by decent from a mother”.
Therefore the Supreme Court has opened up the possibility of British citizenship to a yet unknown number of children born aboard to British mothers, also born aboard, and whose own citizenship was acquired by descent.
The Home Office has updated the guidance to s4C(3A) of the British Nationality Act 1981. The application still needs to be made to the Secretary of State for registration as a British citizen and is subject to the good character test. If an individual is successful, a citizenship ceremony must be attended and an oath of allegiance sworn.