The Advocate General for Scotland v Romein

When determining entitlement to British citizenship under section 4C of the British Nationality Act 1981, the statutory assumption of equal maternal transmission must be given practical effect. A historic condition requiring consular registration cannot apply where registration would have been legally ineffective because the claim depended on descent through a woman.

Section 4C(3D) prevents a decision-maker from inventing registration or other historic facts. It does not require compliance with a condition which would nullify the remedial assumption. Disapplying that condition corrects the continuing consequences of discrimination against mothers; it does not create present discrimination between applicants.

The respondent was born in the United States in 1978. Her mother was a citizen of the United Kingdom and Colonies by descent, but the respondent's father had no British connection. The law then permitted transmission through a father but not through a mother. The respondent's mother therefore could not have registered the birth at a British consulate.

After section 4C of the British Nationality Act 1981 retrospectively addressed discrimination in maternal descent, the respondent applied for registration as a British citizen. Her application was refused because her birth had not been registered at a consulate within the period required by section 5(1)(b) of the British Nationality Act 1948.

The Lord Ordinary substantially accepted the Secretary of State's construction. The Inner House allowed the respondent's reclaiming motion: [2016] CSIH 24. The central issue was how the statutory assumption of equal maternal descent operated where historic law had made satisfaction of the consular-registration condition impossible.

1. Appeal dismissed unanimously. Lord Sumption gave the judgment, with which Lady Hale, Lord Reed, Lord Hodge and Lady Black agreed. The Inner House's decision was affirmed, although for different reasons.

2. Section 4C of the British Nationality Act 1981 requires the decision-maker to assume that section 5 of the British Nationality Act 1948 always provided for citizenship by descent from a mother on the same terms as from a father. Section 4C(3D), however, forbids an assumption that registration or another statutory requirement was met. The decision-maker therefore could not assume that consular officials had registered the respondent's birth.

3. The statute also did not authorise an inquiry into what parents or officials hypothetically would have done under a non-discriminatory law. Such inquiries would be unrealistic and often unanswerable. The only authorised counter-historical assumptions were Assumptions A and B. The Inner House's broader counterfactual approach could not therefore be accepted.

4. The Advocate General's literal construction was also rejected. Requiring actual compliance with section 5(1)(b) would make section 4C ineffective for substantially every maternal-descent claim based on that provision. Only births registered unlawfully or by mistake could qualify. That result would significantly undermine the remedial purpose of section 4C without any rational legislative reason.

5. The registration condition in section 5(1)(b) was consequently inapplicable to a claim based on descent from a mother. This was the only construction which respected section 4C(3D) while giving practical effect to the assumption of equal maternal transmission.

6. The court declined to decide whether section 4C(3C) excluded particular claims by persons born before 1 January 1949. The subsection used different language and did not affect the respondent's case. Any resulting difference between pre- and post-1949 applicants arose from the statutory language.

7. Disapplying the registration condition did not discriminate against persons claiming through fathers. Section 4C corrected the continuing consequences for children of historic discrimination between mothers and fathers. It created no present discrimination between applicants.

1. United Kingdom Supreme Court: Dismissed the Advocate General's appeal and affirmed the Inner House's decision, although on different reasoning: [2018] UKSC 6.
2. Inner House of the Court of Session: Substantially adopted the respondent's counterfactual construction and reversed the result reached by the Lord Ordinary: [2016] CSIH 24.
3. Lord Ordinary: Substantially accepted the construction advanced for the Secretary of State and rejected the respondent's challenge.