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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Romein, Re Judicial Review [2014] ScotCS CSOH_174 (10 December 2014)
URL: http://www.bailii.org/scot/cases/ScotCS/2014/[2014]CSOH174.html
Cite as: 2015 GWD 1-27, [2014] ScotCS CSOH_174, [2014] CSOH 174, 2015 SLT 32

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OUTER HOUSE, COURT OF SESSION

[2014] CSOH 174


 

P1107/13

OPINION OF LORD BRAILSFORD

In the Petition of

SHELLEY ELIZABETH ROMEIN

Petitioner;

for Judicial Review of the decision of the Secretary of State for the Home Department to refuse the Petitioner’s application for registration as a British citizen pursuant to section 4C of the British Nationality Act 1981

 

Petitioner:  Irvine;  McGill & Co

Respondent:  Komorowski;  Office of the Advocate General

10 December 2014


[1]        This matter called for a first hearing in the application for judicial review of the decision of the Secretary of State for the Home Department (“the Secretary of State”).  On 20 June 2013 the Secretary of State determined to refuse the petitioner’s application for registration as a British citizen pursuant to section 4C of the British Nationality Act 1981 (“the 1981 Act”).  By letter dated 18 September 2013 the Secretary of State advised that the said decision had been maintained.  There is no right of appeal against these decisions and the only remedy available to the petitioner is by way of judicial review.  In the present proceedings the respondent is the Advocate General for Scotland. 


[2]        The petitioner seeks the following remedies:

(i)      reduction of the decision of 20 June 2013 refusing the petitioner’s application for citizenship pursuant to section 4C of the 1981 Act (“the Decision”);

(ii)     reduction of the decision of 18 September 2013 by which the Decision was maintained;

(iii)    declarator that, in refusing the petitioner’s application for registration as a British citizen pursuant to section 4C of the 1981 Act, the Secretary of State acted in violation of the petitioner’s rights under article 14 of the European Convention on Human Rights when read with article 8 of the Convention, and so unlawfully within the meaning of section 6(1) of the Human Rights Act 1998;

(iv)    declarator that subsection (3D) of section 4C of the 1981 Act, when read in accordance with common law principles of statutory interpretation, et separatim compatibility with article 14, does not require registration of a birth as a matter of fact for satisfaction of the condition in subsection (3) of section 4C of the 1981 Act;

(v)     declarator that, when subsection (3D) of section 4C of the 1981 Act is read in accordance with common law principles of statutory interpretation, et separatim compatibility with article 14, the petitioner satisfies the condition for registration in subsection (3) of the section 4C of the 1981 Act. 


[3]        This petition has had the benefit of a degree of case management.  At a procedural hearing on 8 December 2013 Lord Boyd of Duncansby ordered the preparation and submission before the first hearing of notes of argument for both compearing parties.  Prior to the procedural hearing, both parties had lodged a “Statement of Issues” arising out of the pleadings for determination by the court.  Unfortunately although there was a degree of overlap in the identified issues they were not in identical terms.  The petitioner’s Statement of Issues was in the following terms:

“1.    The legal meaning of section 4C of the 1981 Act and, in particular:

(i)      whether section 4C applies where the person from whom citizenship is sought to be obtained is a British citizen “by descent”;

(ii)     whether subsection (3D) of section 4C of the 1981 Act has the effect of requiring proof of consular birth registration as a matter of fact; and

(iii)    the effect on subsection 3D of section 3 of the Human Rights Act 1998

2.      Whether articles 8 and 14 of the European Convention on Human Rights are engaged in the circumstances of the present case;

3.      Whether the provisions of section 4C(3D) of the 1981 Act discriminate against the petitioner in violation of article 14 of the Convention on grounds of one or both of:

(i)      sex, on the basis of the petitioner’s status as an indirect victim of the discrimination directed against her mother; and

(ii)     “other status”, on the basis of the petitioner’s factual situation as an individual whose birth was not registered at a British consulate.

4.      Whether any discrimination made out under article 14 of the Convention is justified.”

 


The respondent’s Statement of Issues was in the following terms:

I.        Without resort to the interpretive obligation in the Human Rights Act 1998, section 3, what is the correct interpretation of the British Nationality Act 1984, section 4C (‘the orthodox interpretation’)?  In particular, is section 4C of the 1984 Act of any application to any children whose mothers were British citizens by descent, and whose fathers were not British citizens, where a purported registration of that birth took place at a British consulate?

 

II.        In view of the petitioner’s successful immigration appeal, can she claim that the lack of British citizenship makes her the victim of discrimination in how her rights to private and family life are secured (Article 14 in conjunction with Article 8)?

 

III.       Does section 4C of the 1984 Act, according to the orthodox interpretation, subject the petitioner to less favourable treatment by reason of her having a mother who is a British citizen by descent and who is mutatis mutandis in the same situation as the petitioner?

 

IV.       Does section 4C of the 1984 Act, according to the orthodox interpretation, subject the petitioner to less favourable treatment by reason of her birth having not been registered at a British consulate compared to how it treats a person whose birth was registered, or was purportedly registered?

 

V.        Is any differential treatment in terms of questions IV and V objectively justified, or conversely, is it discriminatory treatment of a kind that violates Article 14 in conjunction with Article 8?

 

VI.       If the answer to question V is that the orthodox interpretation of section 4C would result in discriminatory treatment of the petitioner in violation of Article 14, is it possible to read section 4C in a way that avoids such a violation in terms of the Human Rights Act 1998, section 3?”


 


[4]        It was agreed between the parties at the procedural hearing that a number of issues identified in the statements of issues were suitable for standalone determination.  These were identified as the petitioner’s first and second issues and issues I to IV identified by the respondent.    In the event that as a result of the first hearing a second hearing was required the remaining issues would be dealt with at that time. 


[5]        The factual background against which this application requires to be determined is in relatively narrow compass and was not the subject of dispute.  The petitioner was born in the United States on 16 June 1978.  She is a United States citizen by birth.  The petitioner’s father was a citizen of the United States.  The petitioner’s mother was born in South Africa on 16 February 1948.  She is a British citizen by descent.  The petitioner’s maternal grandmother was also born in South Africa and was also a British citizen by descent.  The petitioner’s maternal grandfather was born on 1 November 1905 in Wales.  He was a British citizen by birth.  He died in 1977.  Although not pled, it is a reasonable inference from the terms of paragraph 6 of the petition that the gentleman died in South Africa.  Following his death the petitioner’s mother, who had by that time left South Africa, returned to that country in order to make arrangements following her father’s death.  She remained in South Africa until the beginning of February 1978 and during her period in the country, and at a time when she was pregnant, contacted the British consulate in Johannesburg enquiring about the possibility of securing British citizenship for her, at that date, 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.  As a consequence of that advice, the petitioner’s mother did not register her birth, when that event occurred, with the British consulate.  The petitioner’s mother has sworn an affidavit (number 6/2 of process) where she depones that had registration of the petitioner’s birth at a British consulate allowed her to transmit British citizenship to her daughter she would have undertaken that step.


[6]        The petitioner is, at the date of these proceedings, 35 years of age.  She has suffered from a number of health problems and has received treatment for these in the United Kingdom.  She currently lives with her mother in Edinburgh.  She has two younger half-sisters, who are both British citizens.  The petitioner and her mother are close and are said to be “mutually emotionally dependent”.  The petitioner’s mother has provided her with practical and emotional support in relation to her illnesses.  The petitioner’s father is now dead and she has no family connections in the United States.  The petitioner is close to her two half-sisters. 


[7]        The statutory provision which gives rise to the legal issue which constitutes the subject matter of this judicial review is section 4C of the 1981 Act.  Section 4C of the 1981 Act was inserted into that Act by section 13 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).  Section 4C was subsequently amended by section 45(3) of the Borders, Citizenship and Immigration Act 2009.  Section 4C is, insofar as relevant, in the following terms:


            “4C   Acquisition by registration: certain persons born between 1961 and 1983


 

(1)     A person is entitled to be registered as a British citizen if—

(a)  he applies for registration under this section, and

(b)  he satisfies each of the following conditions.

(2)     The first condition is that the applicant was born before 1st January 1983.

 

(3)     The second condition is that the applicant would at some time before 1st January 1983 have become a citizen of the United Kingdom and Colonies—

(a)  under section 5 of… the 1948 Act if assumption A had applied…

(b)  under section 12(3), (4) or (5) of that Act if assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1st January 1949, or

 

(3A)    Assumption A is that—

(a)  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, and

(b)  references in that provision to a father were references to the applicant’s mother.

 

(3B)    Assumption B is that—

(a)  a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and

(b)  references in that provision to a father were references to the applicant's mother.

 

(3C)    For the purposes of subsection (3B), a nationality status is acquired by a person (“P”) by descent where its acquisition—

(a)  depends, amongst other things, on the nationality status of one or both of P's parents, and .

(b)  does not depend upon an application being made for P's registration as a person who has the status in question.

 

(3D)    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… were met.

 

(4)      The third condition is that immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 (c. 77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above.

 

(5)      For the purposes of the interpretation of section 5 of the 1948 Act in its application in the case of assumption A to a case of descent from a mother, the reference in the proviso to subsection (1) of that section to ‘a citizen of the United Kingdom and Colonies by descent only’ includes a reference to a female person who became a citizen of the United Kingdom and Colonies by virtue of—

(a)  section 12(2)… of the 1948 Act…”


 


The reference in section 4C aforesaid to the “1948 Act” is a reference to the British Nationality Act 1948 (the “1948 Act”).  Section 5 of the 1948 Act provides insofar as relevant as follows:

“5   Citizenship by descent


 

(1)      Subject to the provisions of this section, a person born after the commencement of this act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth:

          

           Provided that if the father of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless—

(b)  that person’s birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State later; ...

 

(2)      If the Secretary of State so directs a birth shall be deemed for the purposes of this section to have been registered with his permission notwithstanding that his permission was not obtained before the registration.”


 


[8]        The petitioner’s submission at the hearing followed that presigned in her statement of issues, that three distinct legal issues arose in the circumstances of the present case out of the foregoing legislation.  These issues were, firstly, the legal meaning of section 4C of the British Nationality Act 1981.  Secondly, whether in the circumstances pertaining in the present case article 8 and article 14 of the European Convention on Human Rights (the “European Convention”) were engaged.  The third issue was in relation to whether in the circumstances of the present case the petitioner had been discriminated against in terms of the European Convention.  As already noted at the procedural hearing in this case it had been agreed that only the first two of these issues would be addressed and determined at the present hearing.  In the event that any requirement to deal with the third issue, that of discrimination, arose that would fall to be dealt with at a second hearing.


[9]        In relation to the first of these questions, the correct legal meaning to be applied to section 4C of the 1981 Act, it was firstly submitted by the petitioner that the sole object in statutory interpretation is to identify the legislative intention of Parliament in passing the enactment concerned.  The legal meaning of an enactment corresponds to the legislative intention which is thereby identified (Jones & Bennion (ed), Bennion on Statutory Interpretation: A Code, 6th edn, (hereinafter “Bennion”) at 442.)  The intention of Parliament is an objective concept, not a subjective one, and is to be deduced from what the court reasonably imputes to Parliament by virtue of the language used (R v Secretary of State for the Environment, Transport and the Regions, Ex Parte Spath Holme Ltd [2001] 2 AC 349 per Lord Nichols of Birkenhead at 397-398[1].)  Legislative intention is primarily to be ascertained from the text of the enactment in question (Bennion at 478).  If there is no real doubt as to the meaning of the words used in an enactment their plain meaning is to be applied (Bennion at 510). 


[10]      In the present case it was submitted there are two relevant enactments to be considered.  The first is the second condition set forth in section 4C of the 1981 Act which, by way of assumption A, provides that section 5 of the 1948 Act is to be taken as applying to women “in the same terms” as it applied to men. 


[11]      This provision was explained by counsel for the petitioner in the following way.  The terms of section 5 of the 1948 Act, by way of a proviso in subsection (1), allowed a second generation citizen of the United Kingdom and Colonies (“2GCUKC”) father to transmit citizenship to his child in certain circumstances.  The only operative significance of a proviso was said to be to place a burden of proof on the person seeking to avail themselves of its operation.  The section 5 proviso did not, therefore, prevent CUKC status being obtained where a parent from who it was sought to be obtained was a 2GCUKC.  Rather, it provided that, in such a situation the person seeking to obtain CUKC status was required, where necessary, to prove that the relevant requirement had been satisfied.  If that requirement was satisfied, CUKC status would have been transmitted under section 5 from a 2GCUKC father to his child.  Section 4C of the 1981 Act effectively resurrects section 5 for the purpose of remedying the discrimination which was previously inherent in British nationality law.  Assumption A imports the terms of section 5 without any qualification.  The literal meaning of the second condition is, therefore, that in equivalent circumstances, the terms of section 5 can in effect be relied upon by the child of a 2GCUKC mother, subject to the provisions of the second enactment, subsection (3D). 


[12]      In developing this argument, counsel submitted that the literal meaning of the second condition was supported by consideration of the legislative context of section 4C of the 1981 Act.  This she said could be deduced from, in particular, (i) the post-enactment history, in the form of departmental instructions issued by the Secretary of State for the purposes of administering section 4C and, (ii) the international legal context, specifically the UN “Convention on the Elimination of All Forms of Discrimination Against Women” (“CEDAW”), article 9(2).


[13]      In relation to the first of those issues, the post enactment history, subsequent to the 2002 Act instructions were issued by the Secretary of State to the Nationality Directorate of the United Kingdom Border Agency for the purposes of administering applications for citizenship pursuant to section 4C.  These departmental instructions identify the children of 2GCUKC as a section 4C applicant category.  They further set out the evidential requirements to be met in order for a section 4C application to succeed.  In relation to the second aspect of what counsel characterised as the legislative context, article 9(2) of CEDAW requires state parties thereto to “grant women equal rights with men with respect to the nationality of their children”.  The UK ratified CEDAW on 7 April 1986, a matter with which the respondent did not take issue.  Parliament is to be assumed to have legislated in accordance with international treaties to which it is a state party.  It was therefore submitted that section 4C should be read having regard to the provisions of CEDAW. 


[14]      It was therefore submitted that when section 4C is viewed in light of the interpretative criteria, the literal meaning of the second condition in Assumption A, that section 5 is to apply “in the same terms” to women now as it applied to men, should be taken as the plain meaning, and applied accordingly.


[15]      The submission was developed, in anticipation of arguments to be advanced by the respondent to consider the extent to which it was legitimate for courts to have regard to Hansard reports of proceedings in Parliament.  The general rule was said to be that courts were not permitted to have regard to such reports except to the extent that they fell within the exception set out in Pepper v Hart [1993] AC 593.  The exception only permits reference to Hansard as an aid to construction of a statutory provision where: (i) the legislation in question is ambiguous or obscure or leads to an absurdity; (ii) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together, if necessary, with such other Parliamentary material as is necessary to understand such statements and their effect; and (iii) the statements sought to be relied upon for the purposes of the exercise in issue are clear (Pepper v Hart (supra) per Lord Browne-Wilkinson at 640).  On this basis, the Pepper v Hart (supra) exception should only be available for the purpose of preventing the executive from placing a different meaning on the words used in legislation from the meaning which the government attributed to these words when promoting the legislation in Parliament (R v A [2002] 1 AC 45 per Lord Hope of Craighead at 79).  Applying that consideration to the present case the Pepper v Hart (supra) exception should not be available to the respondent for the purpose of seeking to attribute a different meaning to the legislation under consideration from that which the ordinary words of the provision bear. 


[16]      This line was further developed by submitting that, in any event, Hansard can only be resorted to to assist the understanding of a particular statutory word or phrase, it cannot be resorted to for the purpose of identifying the aim of the legislation at issue, R (Spath Holme Ltd) v Secretary of State for Environment, Transport and the Regions [2001] 2 AC 349 per Lord Hope of Craighead at 408[2]


[17]      Having regard to those considerations it was submitted that any attempt by the respondent to rely on Hansard for the construction of section 4C of the 1981 Act should be rejected and the plain meaning of the second condition applied. 


[18]      The second enactment which was said to be an issue in the present case is subsection (3D), which qualifies the operation of the second condition.  Subsection (3D) provides that, for the purposes of satisfaction of the second condition, it is not to be assumed that any of the registration or other requirements set out in section 5 “were met”.  It was therefore submitted that subsection (3D) preserves the requirement set out in the section 5 proviso, including, for the purposes of the present case, the registration requirement.  In that regard it was said to be noteworthy that subsection (3D) is written in the past tense, imperative mood, meaning it requires that something has actually been done. 


[19]      The effect of these provisions was said to be that whilst the first assumption had the effect of removing the ban on acquisition of citizenship by descent through the maternal line the prima facie meaning of subsection (3D) was to impose a burden of proof on the applicant for section 4C citizenship by way of section 5.  This burden of proof was to be discharged by the applicant evidencing that the relevant requirement in section 5 had been satisfied, as a matter of fact.  In the context of the registration requirement the prima facie meaning of subsection (3D) was therefore to require proof by a section 4C applicant for citizenship of the fact that their birth was registered at a British consulate, within one year of the birth, or later, but only with the permission of the Secretary of State. 


[20]      It was however further submitted that the literal meaning could not correspond with the objective legislative intention of Parliament.  The reasons for this was that there is a strong presumption in favour of legal certainty.  That presumption is even stronger where rule of law has retrospective effect.  Moreover, Parliament is presumed to have legislated conform to international law, which would include article 9(2) of CEDAW.  The effect of subsection (3D) is to exclude an entire category of women from the remedial effects of section 4C.  Further, Parliament is presumed to have legislated with due respect for the principle about doubtful penalisation.  Lastly, Parliament is assumed not to intend absurd consequences to follow from an application of the enactment concerned.


[21]      Having regard to all the foregoing the petitioner submitted that the court was entitled to arrive at the strained meaning of subsection (3D). 


[22]      In response to the submissions counsel for the respondent accepted that for the purposes of the debate the proper interpretation of section 4C of the British Nationality Act 1981 was critical.  The respondent’s submission was split into a number of parts.  First, counsel set forth what was said to be the background to the proper interpretation of section 4C of the British Nationality Act 1981 which was the previous history of nationality law in practice and the law on registration of births overseas.  He then set out details of a policy operated by the Home Office which relaxed the rigours of the law on nationality.  It was submitted that the policy set out explained the impetus for the original introduction of section 4C.  He then set out the law and practice of registration of births overseas and concluded by explaining how section 4C operated both in its original form and currently. 


[23]      The first part of this submission, which was presented in writing, amounted to an explanation of how various categories of person at different dates could become British nationals.  In the present petition the factual position averred by the petitioner is that her mother was a British citizen by descent (paragraph 5 of the petition).  That proposition was not challenged by the respondent.  Having regard to that averment I do not consider that it is necessary to repeat in this opinion the history provided by counsel in relation to the inheriting of nationality from a parent. 


[24]      The second part of counsel’s submission was to set forth the policy on registration of children of British born mothers.  Here counsel for the respondent set out the terms of Home Office Policy which was said to temper the rigours of the restrictions of the existing law up until 1983, the significance of that date being that the law up until that point permitted only fathers to pass on nationality to their children either automatically or as a matter of right upon registration of the child’s birth.  The policy was said to be based upon an announcement made on 7 February 1979 by the then Secretary of State for the Home Department in a written answer to the House of Commons[3].  The announcement was in the following terms:

“The registration of minor children as citizens of the United Kingdom and Colonies under section 7(1) of the British Nationality Act 1948 is at my discretion.  I have decided to make some alterations to the general policy in dealing with applications by women who were born in the United Kingdom and whose children born overseas are still minors.  The practice hitherto has been to refuse registration if it appeared that the child was likely to live overseas or if, when the child was living in this country, the father had taken no steps to seek out our citizenship for himself.  In future, registration will not be refused on those grounds and a woman born in the United Kingdom will normally be able to have her child registered, subject to their being no well-founded objection by the father – as there could be, for example, if registration would deprive the child of his or her existing citizenship.  The notes for the guidance of intending applicants will be suitably amended.  The whole question of transmission of citizenship in the female line will be a matter to be dealt with in future nationality legislation.”


 


The third part of the respondent’s submission was to set forth the law in relation to registration of births overseas.  For the purposes of the present petition the important part of this submission appears to be the acceptance that between 1915 and 1983 in relation to the issue of acquisition of British citizenship for a child born overseas registration of the birth was a prerequisite to acquiring the status of British subject or of a citizen of the United Kingdom.  The important aspect of this consideration was that it was accepted by the respondents that it was never lawfully possible to register the birth abroad of a child solely on the basis that the child’s mother was a British national.


[25]      After these, essentially introductory, submissions counsel for the respondent turned to the provisions of section 4C of the 1984 Act.  Counsel first sought to identify the purpose said to be behind section 4C.  It was said to be legitimate to ascertain the mischief that parliament intended the enactment to remedy.  In this regard ascertainment of the mischief was said to be distinct from the exercise of ascertaining the meaning parliament intended the enactment to have.  The respondent’s submission was that this did not require and did not rely upon the rule in Pepper v Hart (supra).  It was further submitted to be legitimate to have regard to statements made in parliament to ascertain the purpose of legislation in order to apply to European Convention on Human Rights.  Reference was then made to a statement made by the Under‑Secretary of State for the Home Department in the House of Lords on 31 October 2002 in introducing the amendment to the bill that would ultimately insert section 4C into the 1981 Act as providing that explanation[4]

“My Lords under the nationality legislation in force before 1983, British women were unable to transmit their citizenship to any children born abroad.  Under the British Nationality Act 1981, they are now able to do so on equal terms with men.  Anticipating this development, the then Home Secretary announced on 7  February 1979 that he would use his discretion under the British Nationality Act 1948 to confer citizenship by registration on any foreign‑born children of women born in the United Kingdom, provided they were still minors on the date of application.  The practice continued after the commencement of the 1981 Act in respect of the children of British women born before commencement, since the change I have described did not have retrospective affect.  However, the scope of the discretion to compare citizenship in this way continued to be limited by statute to those who were still under the age of 18 when they applied for it.  Inevitably some of those born to British women before 1983 remained ignorant of the option of registration, or learned of it too late to take advantage.  Such people may now be excluded from the United Kingdom and thus from contact with their families here, because there is no specific provision in our immigration rules for their admission.  The noble lord, Lord Avebury, has spoken persuasively in favour of a permanent provision that would enable them, at last, to acquire the citizenship they would have had automatically had their ancestral connection with the UK been through the male rather than the female line.  We have listened to the arguments, and this amendment is the result.”


 


[26]      Counsel then stated what he submitted was the correct interpretation of section 4C.  He submitted that by its explicit terms the provision extended only to those persons who would by operation of law have become British subjects or CUKC’s without the need for registration.  The provision provided registration as a British citizen if a person applied and satisfied each of two conditions.  The first condition stated in section 4C(2) was that “…the applicant was born before 1st January 1983.”  This condition was in line with an already operated discretionary policy introduced by a ministerial answer in the House of Commons as long ago as 1979[5] and dealt with the mischief identified in Parliament in the passage quoted in the immediately preceding paragraph. 


[27]      Section 4C(3) states the second condition, “…that the applicant would at some time before 1st January 1983 have become a citizen of the United Kingdom and Colonies¾…”.  This provision was submitted to be designed to cater for illegitimate children who could not, by reason of that status, inherit nationality from their father at birth, but who were subsequently legitimated by their parent’s marriage, and who were then treated as retrospectively legitimate for nationality purposes.  The reference to “would … have become” was said to make clear the requirement that as a matter of law it is certain that the person would have acquired CUKC status.  It was submitted that the law could not intelligibly be taken to mean that the Secretary of State was to be required to predict what might have happened in an alternative world if history had provided that descent through the female line was possible, with equivalent facilities to register births of children with mothers who were CUKC’s by descent.  To do this would have required prediction of whether registration would have been made at all, whether it would have been made in time, and, if those conditions had not been satisfied, what the attitude of successive Secretaries of State might have been to permitting or ratifying late registration.  It was submitted that such an interpretation would be unworkable.


[28]      The reference in section 4C(3)(b) to sections 12(3), (4) or (5) was required as part of the removal of the mischief already identified.  The reference in section 4C(3B) to “…at some time…” was intended to cater for the law operating before 1949.  Similarly, reference in section 4C(3C)(b) to the words “…as a person who has the status in question.” is a further reference to the law operating before 1949. 


[29]      In section 4C(3D) it was submitted that the words “…it is not to be assumed…” are used in the same sense as the expression “assumption” used earlier in the section, that is as a hypothesis rather than as a presumption that can be disproven.  The interpretation ensures consistency of treatment between those born before and after 1949.  It was submitted that the petitioner’s alternative construction as a form of presumption is implausible, first because of the arbitrary distinction in treatment it would require for those born before 1949 but second because any enquiry into whether the birth would have been registered would be impractical. 


[30]      The first question to be determined is, as was recognised by both parties, the correct legal meaning to be applied to section 4C of the 1981 Act.  In regard to this question there was no material dispute between the parties as to the approach to construction.  They agreed that the legislative intention of Parliament was to be determined by the language used.  They both agreed that the language used in the provision was not ambiguous albeit that they differed as to what that meaning was.  They agreed that the policy background to the enactment was of assistance in determining the intention of the legislature.  They appeared to be in broad agreement that the general intention of the legislature was to ameliorate aspects of British nationality law which had hitherto operated unfavourably to those seeking to acquire British nationality by descent through the female line.  Where they differed was in respect to the interpretation of the language used in the relevant provision in relation to the requirement for registration as a prerequisite of the acquisition of British nationality.  In that regard, the petitioner relying on impediments she said the language of the enactment imposed upon those failing to register who had acquired their potential right to British nationality through the female line submitted that it could not have been the intention of Parliament to have imposed these impediments.  She therefore submitted a construction of the critical words in the enactment which, she candidly accepted, was unnatural.  The justification for this was to avoid what she said would be a manifestly unjust and discriminatory result.  By contrast, counsel for the respondent submitted that the language used quite clearly demonstrated that the policy of the legislature as deduced from various statements already quoted was plainly being implemented.


[31]      Whilst it is true that the language of the enactment is not easy to follow and, at least at first reading, there appears to be force in the submissions of the petitioner, I have come to the view that the argument advanced by counsel for the respondent is to be preferred.  Albeit the legislative background is complicated the enactment is consistent with and appears to give effect to the policies outlined in the various Parliamentary statements relied upon.  Moreover, the language is explicable and gives effect to that intention.  It appears to me to be undesirable to resort to a construction of language which is accepted as “unnatural” when a natural construction, as here, is possible.  In particular the requirement to make assumptions in relation to conduct regarding registration which are of necessity hypothetical, which is implied in the petitioner’s construction, is, in my view, inconsistent with general principles of statutory construction and, moreover, fraught with difficulty.  No doubt any person seeking to bring themselves within the provision relating to registration would be prepared to assert, as is done in the present case, that a certain state of facts would have existed.  I am unclear as to how such an assertion could ever properly be tested or verified.  It seems to me that the intention of Parliament cannot have been to introduce such uncertainty into the law.  I recognise that in order to ensure compliance with the ECHR and other treaty obligations, a degree of flexibility may require to be introduced to statutory construction.  It does not however appear to me be legitimate to stretch flexibility of language to such an extent that what was accepted to be an “unnatural construction” is preferred over a straightforward, although possibly unattractive, construction.  For these reasons I consider that the construction advanced by counsel for the respondents is correct. 


[32]      There remains at this stage the issue of whether articles 8 and 14 of the European Convention on Human Rights are engaged in the circumstances of the present case.  The petitioner’s position was that she could claim victim status under article 8 of ECHR because of interference with the right to family and private life occasioned by prolongation of her stay in the UK without any guarantee of the permanence of such prolongation.  In addition, she submitted the denial of a right to vote as a European Union citizen likewise infringes her ECHR rights.  The respondent disputed these arguments on the ground that they were stated prematurely.  It is fair to state that this aspect of the discussion did not occupy a significant part of the debate before me.  On the basis of the arguments I heard I am of the view that in the circumstances of the present case the amended articles of the ECHR are potentially engaged, but final determination of that matter would require further construction.    


[33]      Having regard to the terms of my decision and to the consideration that a number of arguments were left over for consideration pending determination of the initial questions, I will put this case out by order. 




[1] “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.  The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration.  This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective.  The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used.  It is not the subjective intention of the minister or other persons who promoted the legislation.  Nor is it the subjective intention of the draftsmen, or of individual members or even of a majority of individual members of either House.  These individuals will often have widely varying intentions.  Their understanding of the legislation and the words used may be impressively complete or woefully inadequate.  Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.  As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613: ‘We often say that we are looking for the intention of Parliament, but that is not quite accurate.  We are seeking the meaning of the words which Parliament used.’ “

[2]No such issue has been raised in this case.  As I have already sought to explain, the passages in Hansard to which your Lordships have been referred deal not with the meaning of words or possible interpretations of expressions that were or might be ambiguous but with statements made by ministers as to matters of policy.  I consider that to permit resort to Hansard as a source for material of that kind to define the scope of a discretionary power conferred by Parliament would be to extend the decision in Pepper v Hart well beyond its proper limits.  I respectfully agree with my noble and learned friend, Lord Bingham of Cornhill, for all the reasons that he has given, that it is important that the conditions laid down by the House in that case should be strictly insisted upon.  I also agree with him that, if a minister were to give a categorical assurance to Parliament that a discretionary power would not ever be used in a given set of circumstances, that statement would be admissible against the executive in order to control its exercise.  But I also think that it is important to stress that as a matter of principle the decision in Pepper v Hart should be confined to cases where the court is concerned with the meaning that is to be given to the words used in legislation by Parliament.  It would be contrary to fundamental considerations of constitutional principle to allow it to be used to enable reliance to be placed on statements made in debate by ministers about matters of policy which have not been reproduced in the enactment.  It is the words used by Parliament, not words used by ministers, that define the scope within which the powers conferred by the legislature may be exercised.”

[3] House of Commons Debates, Volume 962, 204W.

[4] House of Lords Debates Volume 640 column 295.

[5] Written answer of 7 February 1979, HC Deb, Volume 962, c204W


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