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(ii) Lord Sumption

His Lordship found “formidable difficulties” with the counterfactual assumption underpinning the asad-khanfirst hypothesis. Notably, the counterfactual assumption that consular officials would have registered Romein’s birth is at variance with s 4C(3D) of the 1981 Act whereby “it is not to be assumed” that the registration requirement had been fulfilled. Lord Sumption did not accept the Inner House’s view that s 4C(3D) operates only to place on the applicant the burden of proving her claim without the aid of any presumption of fact because the drafting of subsection (3D) negates that notion. In any event, the applicant would bear the burden of proving her claim.

Moreover, a conceptual problem arose with respect to making s 4C’s operation a function of a belated enquiry about whether a parent would have wished or intended or attempted to take advantage of a then non-existent right. Finally, if the counterfactual assumption includes an assumption about the actions which the parents would have undertaken to try to obtain British citizenship for their children, then it would be possible for an applicant to seek citizenship by descent on the ground that the mother would have moved to a British-controlled territory for the birth, or that a parent would have entered or continued in Crown service in time for the birth. With that in mind, Lord Sumption held that:

  1. … It seems extremely unlikely that Parliament envisaged in 2002 or 2009 that the operation of this provision would depend on the practically unanswerable question what adjustments parents would hypothetically have made to their lives with a view to obtaining British citizenship for their children. Subsection (3D) appears to have been added precisely to rule out any such unrealistic enquiries. In my view the only counter-historical assumptions authorised by the Act are Assumptions A and B.

Applying the second approach, which accorded with the literal words of s 4C, produced the result that British citizenship through matrilineal descent would be available under s 5(1)(b) of the 1948 Act only where persons were registered in error or in violation of the regulations. The court found it difficult to see why Parliament should have intended to help only these individuals. Lord Sumption rejected the belief that the intention behind s 4C was to allow claims to citizenship by descent from a woman only in cases where citizenship followed automatically from certain specified circumstances and was independent of a person taking steps, such as registering a birth.

As currently drafted, s 4C “would be an extraordinary way” of achieving that goal. Parliament did not intend this because “it would have significantly undermined the purpose of s 5(1)(b) of the 1948 Act for no discernible reason.” Since section 4C of the 1981 Act required an assumption that s 5 of the 1948 Act had always provided for citizenship through matrilineal descent:

  1. … it is not possible to apply the registration condition in section 5(1)(b) of the 1948 Act to those claiming on that basis, because its application would make nonsense of that assumption.

Lord Sumption’s ingenious but simple solution was to treat the registration condition in s 5(1)(b) as inapplicable in applications for citizenship by descent from the mother. This is the only way to give effect to s 4C(3) because s 4C(3D) precludes any counterfactual assumption that the birth was registered. The court rejected two objections to this neat solution.

Since it did not affect Romein’s case, the court preferred not to decide the point whether its approach leads to unacceptable discrimination between those born before and after the 1948 Act entered into force. It was sufficient to observe that the difference, if any, between the treatment of those two categories of people is not anomalous and arises from the wording of the 1981 Act (as amended). The court equally rejected the second objection that its solution manifested an alternative form of gender discrimination because claimants through the female line would be released from the registration condition whereas claimants through the male line under the previous law were not. Dismissing the appeal, Lord Sumption held that:

  1. … There is no discrimination between applicants, whether by gender or otherwise. There was historic discrimination between their parents, since a father was held to transmit his citizenship to his children while a mother was not.

Clearly, no current discrimination existed between applicants. There was no anomaly and s 4C simply corrects the existing consequences for affected mothers’ children of this historic discrimination.

Comment

By correcting the state of the law and by dismissing the government’s appeal, the Supreme Court has opened the door to British citizenship through matrilineal descent to children born between 1949 and 1983. The decision thus potentially aids a significant cohort of people. But many of its beneficiaries will hold other nationalities and will be settled elsewhere to want to enjoy the benefits conferred by British citizenship.

The ruling prompted the Home Office to amend its guidance which now states that persons born between 1 January 1949 and 31 December 1982 (inclusive) to a British mother are free from the requirement that their birth must have been registered with a UK consulate in the 12-month period after their birth. However, the updated guidance fails to specifically acknowledge any gender based historic injustice in the ongoing discourse of British citizenship. Inexplicably, no reference is made to the Supreme Court’s decision and the updated guidance merely records a “clarification on the application of section 4C(3A) of the British Nationality Act 1981”.

Please see Part One here.

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