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Gender discrimination and historic injustice: Law corrected on British asad-khancitizenship through Matrilineal Descent

Women have overwhelmingly borne the brunt of injustice throughout history and discrimination against females has been axiomatic in the sphere of citizenship. The British Nationality Act 1948 laid down the rule in s 5(1) that a person could avail British citizenship by descent if his or her father was a citizen of the United Kingdom and Colonies (CUKC) at the time of the person’s birth. However, if the person’s father was a citizen by descent only, then unless either the said person was born in a British-controlled territory or the father was in Crown service at the time of the birth, s 5(1)(b) normally made it a condition that the person’s birth should be registered at a British consulate within one year. The female line was prevented from transmitting citizenship by descent and regulations permitted a British consulate to register a birth only if the child was eligible for British citizenship. The exclusion of claims to British citizenship by descent through the female line is an abhorrent injustice that the Supreme Court described as “a curious survivor of redundant social and political priorities”. Dismissing the Advocate General’s appeal, the court unanimously held that the condition in s 5(1)(b) of the 1948 Act should be treated as inapplicable in applications for citizenship by descent from the mother because this is the only way to give effect to s 4C(3) of the British Nationality Act 1981.

Remarking that “the past is done, and cannot be undone,” Lord Sumption, who is also an acclaimed historian, explained at the outset of his judgment that four centuries of emigration from the UK have complicated schemes for defining the right to British nationality because of the need to accommodate those born abroad but having significant connections with the UK by descent. Allegiance defined English nationality at common law and birth within the King’s realm or marriage to an Englishman resulted in its acquisition. However, in 1351 nationality by descent became available under statute to children born outside the realm to purely English parents. English women marrying aliens were unable to transmit English nationality to children born outside the realm. The permanence of the allegiance principle at common law was abolished by the Naturalization Act 1870 which prescribed that marriage to an alien resulted in a woman losing her British nationality altogether. The consequence was to eliminate the possibility of British citizenship by descent being transmitted through the female line alone.

The Supreme Court

Lady Hale, Lord Sumption, Lord Reed, Lord Hodge and Lady Black unanimously dismissed the Advocate General’s appeal, albeit on a different footing to the reasoning propounded by the Inner House on the important question of the correct statutory interpretation of s 4C of the 1981 Act.

The answer was “reasonably clear” if the affidavit sworn by Romein’s mother was accepted. If the consular officials in Johannesburg had been empowered to apply Assumption A, then her attempt to register the birth would have succeeded at all events. Conversely, a mother who was aware of the legal impediments would not bother trying to register her child and she would thus not be able to adduce evidence in the form of a sworn affidavit like Romein’s mother had done. But that court found no reason “why that should make any difference.”

To Lord Sumption’s mind, Romein’s ineligibility for citizenship as a consequence of her inability to satisfy the condition of registration within a year after her birth was a dichotomy that demanded some scrutiny. He identified three possible solutions to the conundrum.

(i) Three Possibilities

On the first approach, s 4C operates on the assumption that s 5 of the 1948 Act had always provided for citizenship by descent through the female line and that consular officials of the day in fact acted on that basis. Under the terms of s 4C(3), Romein “would … have become a citizen” under s 5 of the 1948 Act if Assumption A had applied, because on that analysis consular officials would have registered her. Indeed, this was the thrust of Romein’s case and the Inner House substantially adopted it.

On the second approach, s 4C operates on the assumption only that s 5 of the 1948 Act had always provided for citizenship by descent, but not to make any assumption that the facts were other than they actually were. Consequently, applications based on descent through the female line must always fail in cases where citizenship was dependent on the fact of registration under s 5(1)(b). The government relied on this argument and Lord Brailsford substantially accepted it at first instance.

Under the third option – which did not feature in earlier proceedings but was favoured by the Supreme Court – effect cannot be given to the registration condition in s 5(1)(b) of the 1948 Act at all, as applied to applications for citizenship by descent through the female line, because insisting on that condition would nullify the practical effect of making Assumption A.

Please see Part Two here.

For the original, full version of this article please see here.