U.S. woman wins appeal against ‘unlawful’ decision to refuse British citizenship

A U.S. born woman who claims British citizenship through descent from her South African mother has successfully challenged a decision to refuse her application.

The Inner House of the Court of Session ruled that 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 meeting the conditions set out in the relevant legislation.

Lord Brodie, Lady Dorrian and Lord Malcolm heard that the petitioner Shelley Romein applied for registration as a British citizen pursuant to section 4C of the British Nationality Act 1981, as amended by the Citizenship and Immigration Act 2009.

But the respondent, the Secretary of State for the Home Department, by a decision intimated on 20 June 2013, refused that application and on 18 September 2013 decided to maintain her previous decision.

By way of application for judicial review the petitioner sought reduction of these decisions and certain declarators.

The petitioner, who was born in the United States on 16 June 1978 and whose father is also a U.S. citizen, claims British citizenship through descent from her mother, who was born in South Africa but is a British citizen by virtue of her father having been born in the UK.

The petitioner’s mother was in South Africa at a time when she was pregnant with the petitioner and it was averred that during that time she contacted the British consulate in Johannesburg to enquire about the possibility of securing British citizenship for her then unborn child.

She was informed by a consular official that registration of the forthcoming child’s birth would serve no purpose, as nationality could only be passed through the male line and as a consequence of that advice, the petitioner’s mother did not register her birth, when the event occurred, with the British consulate.

On these averments, which the petitioner offers to prove, and on a proper construction of section 4C of the 1981 Act, the petitioner claims that she is entitled to be registered as a British citizen and therefore that the respondent’s decision of 20 June 2013 to refuse her registration was “unlawful”.

The Lord Ordinary rejected that petitioner’s claim and upheld the decision of the respondent on the basis that the petitioner’s proposed construction of the relevant statutory provisions was “flawed”, but the petitioner reclaimed.

Section 4C provides that a person is entitled to be registered as a British citizen if: they are born after 7 February 1961 and before 1 January 1983; they would at some time before 1 January 1983 have become a citizen of the UK and Colonies by virtue of section 5 of the British Nationality Act 1948 if that section had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father; and if the applicant would have had the right of abode in the UK immediately.

The issue was the second condition and the proper construction of subsections (3) to (3D), which require certain assumptions to be met.

The petitioner submitted that it was to be assumed, by virtue of the assumption set out in subsection (3A), that section 5 of the 1948 Act provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father.

However, the respondent argued that since the petitioner’s birth was not registered at a British consulate she was not entitled to register as a British citizen.

It was submitted that subsection (3D), which provides that for the purposes of subsection (3) “it is not to be assumed that any registration or other requirements of the provisions mentioned in that subsection or in subsection (3B) were met”, means that it is impermissible to employ a legal fiction so as to suppose that registration had taken place.

The appeal judges noted that the leading textbook on nationality law describes section 4C as “a dense and at times impenetrable piece of drafting” and in endeavouring to find what must be taken to be the intended meaning of the provision they did not disagree with that characterisation.

The judges said: “It is however our duty to penetrate even the apparently impenetrable. Having done so to the best of our ability, we have concluded, for the reasons set out below, that the petitioner’s proposed construction of section 4C is to be preferred over that proposed by the respondent. We intend therefore to recall the Lord Ordinary’s interlocutor of 22 January 2015 and reduce the decisions complained of.”

The appeal judges disagreed with not only the Lord Ordinary but also the learned judge in the 2015 case of Navarro v Secretary of State for the Home Department.

Delivering the opinion of the court, Lord Brodie said: “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.

“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…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.

“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.”