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The Committee on
the Elimination of Discrimination against Women, established under article
17 of the Convention on the Elimination of All Forms of Discrimination
against Women,
Meeting on 22 January 2007
Adopts the following:
1. DECISION ON ADMISSIBILITY
1.1 The author of the communication dated 11 April 2005 is Constance Ragan
Salgado, a British citizen born on 24 November 1927 in Bournemouth, United
Kingdom of Great Britain and Northern Ireland, currently residing in Bogot�,
Colombia. She claims to have been a victim of violations by the United
Kingdom of Great Britain and Northern Ireland of articles 1, 2 (f) and 9,
paragraph 2, of the Convention on the Elimination of All Forms of
Discrimination against Women by having been prevented from transmitting her
British nationality to her eldest son by descent. The author is representing
herself. The Convention and its Optional Protocol entered into force for the
State party on 7 May 1986 and 17 March 2004, respectively.
2. THE FACTS AS PRESENTED BY THE AUTHOR
2.1 In 1954, the author left England to make her home in Colombia with her
husband. On 16 September 1954, the author's eldest son, Alvaro John Salgado,
was born in Colombia of a Colombian father. At that time, the author made an
application to the United Kingdom Consulate to obtain British nationality
for her son and was told that the entitlement to British nationality came
through the paternal line; as his father was Colombian, her son was
considered an alien.
2.2 The British Nationality Act 1981 ("the 1981 Act"), which entered into
force in 1983, amended previous nationality legislation and conferred equal
rights to women and men in respect of the nationality of their children
under the age of 18. The author was told that her son still did not qualify
for British citizenship under the 1981 Act. The author protested by letter
to the British Consul and to the Home Office, claiming that, had her son
claimed British nationality through a British father instead of through her,
no age limit would have applied to him.
2.3 British nationality legislation again changed when the Nationality,
Immigration and Asylum Act 2002 ("the 2002 Act") entered into force on 30
April 2003 and added section 4C to the 1981 Act ("Acquisition by
Registration: Certain persons born between 1961 and 1983"). Children - by
now adults - born abroad between 7 February 1961 and 1 January 1983 of
British mothers would now be eligible to register as British nationals if
they satisfied certain other conditions.
2.4 In early 2003, the British Consul in Bogot� contacted the author to
enquire as to whether she had any children born after 7 February 1961. She
replied that her youngest son was born in 1966 and had acquired British
nationality, but that her eldest son still had not. She was told that he did
not qualify due to the fact that he was born before the cut-off date
established under the 2002 Act.
3. THE COMPLAINT
3.1 The author alleges that she suffered sex-based discrimination on account
of the British Nationality Act 1948 ("the 1948 Act"), under which she was
unable to register her son as a British national because the 1948 Act
provided for citizenship by descent from a father but not from a mother. She
claims that the discrimination has been continuous because it was neither
eliminated under the 1981 Act nor under the 2002 Act and her son remains
ineligible to acquire British nationality by registration on account of his
age. The author maintains that discrimination against women has only been
partially corrected through legislation.
3.2 The author claims that, although women are supposed to be able to
transmit their citizenship to any children born abroad "on equal terms with
men", she has continued to be unable to do so, because children who were
already adults before 1981 are not covered under current legislation. She
maintains that the 2002 Act discriminates against her and other British
mothers whose children, having foreign fathers, were born abroad before 7
February 1961.
3.3 All of the author's efforts to obtain citizenship for her eldest son
have been to no avail. She has sent letters to various government officials,
including the British Embassy in Bogot� and the Home Office, as well as to
the Prime Minister and a number of Members of Parliament.
4. THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 By its submission of 13 April 2006, the State party requests that the
communication be rejected as inadmissible. It notes that the United Kingdom
ratified the Convention, subject to certain reservations, on 7 April 1986,
and that the Committee's jurisdiction to receive and consider this
communication in relation to alleged violations of the rights set out in the
Convention derives from the State party's accession to the Optional Protocol
to the Convention with effect from 17 December 2004.
4.2 As to the facts, the State party states that there is no indication of
the nature of the application that the author made to the United Kingdom
Consulate in Bogot� in 1954, but from the summary contained in the
communication, it appears to have been no more than a request for
recognition of the British citizenship of Alvaro John Salgado on the basis
of his birth as the son of a mother who was a British citizen. This
application could not have succeeded as a matter of the domestic law in
force at that time.
4.3 Following repeated approaches to the United Kingdom Government, whether
through its embassy or consulate in Bogot� or directly, the State party
points out that the author has been informed that her eldest son remains
ineligible for registration as a British citizen on the basis of having been
born to a mother who had British citizenship.
4.4 According to the State party, there is no evidence to suggest that the
author has ever sought to challenge any of these decisions through the
English courts and the State party is not aware of any such proceedings
having been brought by the author.
4.5 As regards relevant domestic law, the State party holds that, as a
matter of general principle, under English law the acquisition of British
citizenship by birth or descent is determined by reference to the
individual's circumstances at the time of his or her birth and by reference
to the law in force at the time of his or her birth. Exceptions would have
to be expressly provided for in subsequent legislation.
4.6 The State party explains that, at the time of the birth of the author's
eldest son, i.e., 16 September 1954, British nationality law was governed by
the 1948 Act. Under section 5 of the 1948 Act, a person born after the
commencement of the Act (subject to a number of exceptions) had a right to
British citizenship by descent if his or her father was a British citizen at
the time of birth. This automatic right by descent was not available to
persons whose mother was a British citizen at the time of birth. The 1948
Act provided other means of acquiring British citizenship. Minor children of
any British citizen could also be registered as a British citizen upon
application made in the prescribed manner by a parent or guardian at the
discretion of the Secretary of State of the Home Department, who, in
principle, would have exercised his discretion in line with Departmental
policy at the time. Naturalization was subject to a number of conditions,
including that the applicant was of full age and capacity.
4.7 The State party states that, in the mid- to late 1970s, the United
Kingdom Government recognized the discriminatory impact of section 5 of the
1948 Act and, as a result, the (then) Home Secretary, Merlyn Rees, announced
to the House of Commons on 7 February 1979 a transitional policy change with
regard to applications by women who were born in the United Kingdom to have
their minor children registered as British citizens. This general and
transitional policy would apply to anyone under the age of 18 on the date
that the new policy was announced (i.e., any child born to a British citizen
mother after 7 February 1961).
4.8 The State party further explains that, on 1 January 1983, the 1981 Act
entered into force and repealed the provisions of the 1948 Act. Section 2
(1) of the 1981 Act made provision for acquisition of citizenship by descent
from either parent under certain conditions. The 1981 Act was further
amended by section 13 of the 2002 Act. The amendment introduced section 4C
into the 1981 Act, which gave persons who were covered by the policy
announced on 7 February 1979 a statutory entitlement to register as British
citizens. The effect of the new provision was that they were able to apply
for registration even after they had attained the age of majority; the
applicant had to have been born after 7 February 1961 and before 1 January
1983. These two dates reflect the fact that the policy announced on 7
February 1979 applied to persons born after 7 February 1961 and that 1
January 1983 was the date on which the 1981 Act came into force, from which
time a mother who was a British citizen could transmit her citizenship in
the same way as a British citizen father.
4.9 As regards inadmissibility ratione temporis, the State party states that
the author complains that the United Kingdom violated her rights under
article 9 (2) of the Convention and that she rightly draws the Committee's
attention to the definition of discrimination against women in article 1 of
the Convention and the obligation assumed under article 2 (f). The State
party submits that, in order to determine whether the communication is
inadmissible ratione temporis, it is important to consider with care the
actual content of the complaint that is being made. The author complains
that, in relation to her son born in 1954, she does not enjoy equal rights
with men in relation to the passing on of her nationality to that son. She
clearly did enjoy such equal treatment in relation to her younger son. As a
result, the State party states that it is important to consider what rights,
as a matter of domestic law, men have (or had) in relation to passing on
their nationality to their children in relation to which women did not have
"equal rights".
4.10 The State party clarifies that, under section 5 of the 1948 Act,
children of British citizen fathers would be automatically, as from the time
of their birth, British citizens by descent, while the children of British
citizen mothers (whose father was not also British) did not enjoy such a
right. The change in policy of 7 February 1979 did not provide any further
rights for men in relation to the nationality of their children. On the
contrary, it sought to modify, long before the United Kingdom ratified the
Convention, existing practice in order to mitigate the effects of what was
recognized as discrimination against women in the operation of the 1948 Act.
The 1981 Act also did not provide any different rights for men in relation
to the nationality of their children. Finally, section 4C of the 1981 Act,
introduced by the 2002 Act, also provided no new or different rights for men
in relation to the nationality of their children, but rather made statutory
provision for persons born to British mothers, who were covered by the
change in policy of 7 February 1979. As a result, it is submitted that the
author's complaint can only be directed at the right provided under section
5 of the 1948 Act (at that time for men only) to pass on their nationality
to their child born abroad automatically at the time of their birth. In
temporal terms, the critical date, therefore, is the date of birth of the
author's eldest son, namely 16 September 1954, i.e., long before the
Convention was adopted by the General Assembly or came into force, and even
longer before the United Kingdom ratified the Convention and/or acceded to
the Optional Protocol. This would also be in line with the general principle
underlying United Kingdom nationality law and the nationality law of most
States, namely that a person's entitlement to acquisition of (British)
citizenship by birth or descent is determined by reference to that person's
circumstances and the law applicable at the time of their birth. Reference
to the child's date of birth (or at the very least, the period of time
during which the child can still be described as such) is also clearly in
line with the wording of article 9 (2) of the Convention, which expressly
relates to equal rights for women in relation to the nationality of their
children. This reference to "children" must be read in line with the use of
the term in other relevant international (human rights) instruments, such as
article 24 (3) of the International Covenant on Civil and Political Rights;
article 7 (1) of the United Nations Convention on the Rights of the Child;
and articles 6 (1) and (2) of the European Convention on Nationality. In the
United Kingdom, the age of majority was, at all material times, 18 years.
4.11 The State party further submits that, at the very least, from the date
on which the author's eldest son achieved his majority, i.e., 16 September
1972, the author ceased to be the "victim" of the denial of British
citizenship to her oldest son. As a general rule, it is only while a person
is still a child that he should be able to benefit from a parent's
citizenship; once a person has attained the age of majority, any application
for citizenship should be based on the child's own personal connections with
a country rather than through the child's mother's connections. Section 4C
of the 1981 Act is very much an exception to this general rule and applies
to a very limited category of persons. Therefore, any complaint about the
continuing failure to recognize or register the author's eldest child as a
British citizen would have to be brought by him.
4.12 The State party maintains that this analysis would not be undermined by
a suggestion, if it were made, that the author has repeatedly and
unsuccessfully sought the registration of her eldest son as a British
citizen, whether under section 7 of the 1948 Act as applied following the
announcement of the change of policy on 7 February 1979 or under the 1981
Act. Any refusal to register the author's eldest child under those
provisions could not, by itself, form the basis of a complaint that the
author has not been granted "equal rights with men", because none of these
provisions are addressed to or provide specific rights for men. In any
event, it is not clear that the author ever made an application for
registration in relation to her eldest son at any time while he was still a
child and, if so, that she pursued the available domestic remedies in the
English courts.
4.13 The State party submits that, for these reasons, it cannot be said that
this is a case in which "the facts that are the subject of the communication
continued after that date", i.e., of entry into force of the Optional
Protocol for the United Kingdom; nor can it be said that the latest
correspondence gives rise to a new violation. While the consequences of the
difference in treatment experienced by the author in 1954 (or between 1954
and 1972) subsist in that the author's son remains without British
citizenship, the State party also submits that the situation as it relates
to the son's nationality does not, by itself, constitute a continuing or new
violation of the author's rights under article 9 (2) of the Convention. FN1
---------------------------------------------------------------------------------------------------------------------FN1
Reference is made by analogy to the following two decisions of the Human
Rights Committee: communication No. 174/1984 J. K. v Canada (CCPR/C/23/D/174/1984)
and communication No. 872/1999 Kurowski v Poland (CCPR/C/77/D/872/1999).
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4.14 As regards exhaustion of domestic remedies, the State party states that
article 4 (1) of the Optional Protocol requires the exhaustion of all
available domestic remedies. The State party submits that this requires the
author to have made "use of all judicial or administrative avenues that
offer [her] a reasonable prospect of success".FN2 There is no indication in
the author's communication that, at the relevant time (in 1954 or between
1954 and 1972), she ever made an application for registration of her eldest
son as a British citizen under section 7 (1) of the 1948 Act, an option that
was clearly open to her. Furthermore, any refusal of such an application
could and should have been challenged by way of judicial review in the High
Court, which body exercised then and continues to exercise a supervisory
jurisdiction over the exercise of statutory functions and/or the exercise of
discretion by public authorities, including the Home Office in relation,
inter alia, to decisions concerning questions of acquisition of nationality.
The High Court, in exercising that jurisdiction, had and continues to have
the power to quash decisions and/or make mandatory orders requiring a
different decision to be made where it concludes that the public authority
has acted unlawfully or irrationally. While the Convention had not been
concluded at that stage, it would have been open to the author to challenge
any refusal to exercise the discretion under section 7 (1) of the 1948 Act
in favour of her eldest son on the basis that it was unreasonable under
domestic law. She might have referred to the European Convention on Human
Rights, which formed an international obligation to which the United Kingdom
was subject and which would have been relevant to the exercise of statutory
discretion.
---------------------------------------------------------------------------------------------------------------------FN2
The State party quotes from communication No. 437/1990 Pati�o v Panama (CCPR/C/52/D/437/1990)
and refers to communication No. 942/2000 Jonassen et al. v Norway (CCPR/C/76/D/942/2000).
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4.15 The State party submits that the test for an effective remedy cannot be
whether a complaint would have been successful or not but rather whether
there is a procedure available in the domestic system capable of considering
and, if persuaded of the merits, providing a remedy without the need for
recourse to the Committee. FN3 If the Committee were to consider, contrary
to the above submissions, that the matter complained of by the author
amounts not to a continuing violation but to a fresh violation which is not
inadmissible ratione temporis, the State party maintains that the complaint
would be equally inadmissible by reason of the author's failure to have
exhausted all available domestic remedies. While there is ample evidence
that the author has sought to exhaust the available administrative remedies
(and any legislative redress, through her communications with the United
Kingdom Government and sympathetic members of Parliament), she has wholly
failed to exhaust the judicial remedies available. FN4 The State party
further maintains that the rule that local remedies must be exhausted before
international proceedings may be instituted is also a well-established rule
of customary international law. The rule reflects the view that "the State,
where a violation occurred, should have an opportunity to redress it by its
own means, within the framework of its own domestic legal system"
(International Court of Justice in the Interhandel Case, ICJ Reports, 1959,
p. 6 (27)).
---------------------------------------------------------------------------------------------------------------------FN3
The State party refers to the European Court of Human Rights application No.
18304/05 Nykytina v United Kingdom and suggests that the case applies
mutatis mutandis in relation to the present communication.
FN4 The State party refers to the jurisprudence on the matter of the Human
Rights Committee, in particular, to communication No. 222/1987 H. K. v
France (CCPR/C/37/D/222/1987) and to jurisprudence of the European Court of
Human Rights, including Fressoz and Roire v France [GC] No. 29183/95,
paragraph 37, ECHR 1999-I; Kudla v Poland [GC], No. 30210/96, paragraph 152,
ECHR 2000-XI; and Banfield v UK, app. No. 6223/04, decision of 18 October
2005.
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4.16 The State party also maintains that the rules of international law
emphasize the high test of ineffectiveness of possible remedies which must
be found to exist before the general requirement of exhaustion of domestic
remedies will be held no longer to apply. FN5 The author could and should
have brought proceedings under the Human Rights Act 1998 to challenge the
lawfulness of the continuing refusal to register her eldest son as a British
citizen.
---------------------------------------------------------------------------------------------------------------------FN5
The State party refers to C. F. Amerasinghe's Local Remedies in
International Law (1990), p. 195; and Oppenheim's International Law (9th
edition), p. 525.
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4.17 The State party states that if, and insofar as the High Court were to
find a violation of the author's rights under the European Convention, the
High Court would have had two options: either to seek to construe the 1981
Act in a manner compatible with the author's or her son's rights under the
European Convention on Human Rights; or to make a declaration of
incompatibility under section 4 of the Human Rights Act 1998. The latter
option enables the United Kingdom Government to take swift remedial action.
The State party further states that, while it is impossible to assess with
any certainty whether such an application to the High Court would, in the
end, be successful, there can be no suggestion that such access to the High
Court does not amount to an effective remedy which the author is required to
have exhausted.
4.18 The State party also puts forward that the communication is
inadmissible because it is manifestly ill-founded. Upon ratification of the
Convention, the United Kingdom entered the following reservation in relation
to article 9: The British Nationality Act 1981, which was brought into force
with effect from January 1983, is based on principles which do not allow of
any discrimination against women within the meaning of article 1 as regards
acquisition, change or retention of their nationality or as regards the
nationality of their children. The United Kingdom's acceptance of article 9
shall not, however, be taken to invalidate the continuation of certain
temporary or transitional provisions which will continue in force beyond
that date. The State party considers that the continuing consequences of the
application of section 5 of the 1948 Act, which is at the heart of the
communication, clearly falls within the "temporary and transitional
provisions" contained in the 1981 Act. As a consequence, the effect of the
reservation is that the United Kingdom incurs no responsibility under the
Convention. The State party refers to the statement on reservations to the
Convention of the Committee on the Elimination of Discrimination against
Women, published as part of its report on its nineteenth session (see
A/53/38/Rev.1). The State party considers that certain passages in that
statement rightly reflect the position under international law, and in
particular articles 19-23 of the Vienna Convention on the Law of Treaties,
that it is for the States parties rather than the Committee to make binding
determinations of whether a reservation entered by another State party is
impermissible as being incompatible with the object and purpose of the
Convention. The State party submits that the reservation to article 9 cannot
be classified as "incompatible with the object and purpose of the present
Convention" so as to be prohibited by article 28 (2) of the Convention. The
State party considers it noteworthy that none of the other States parties to
the Convention has sought to object to or challenge the compatibility of
this reservation with the object and purpose of the Convention; nor has the
Committee, other than through its general expression of concern about the
number of reservations to the Convention contained in its general
recommendations 4, 20, and 21 (paras. 41-48) and its statement on
reservations, in its concluding comments on the United Kingdom raised any
specific concerns about this reservation to article 9. As a consequence, the
State party argues that the present communication, insofar as it is not
inadmissible for any of the reasons set out above, is manifestly ill-founded
because its subject matter falls squarely within the reservation entered by
the United Kingdom upon ratification.
4.19 For the reasons set out above, the State party submits that the
communication is inadmissible under article 4 (1) and/or article 4 (2) of
the Optional Protocol; and insofar as that is relevant, at the very latest
through the adoption of the 1981 Act, the United Kingdom has fulfilled its
obligations under article 9 (2) read with articles 1 and 2 (f) of the
Convention.
5. THE AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
5.1 By her submission of 29 May 2006, the author reiterates her contention
that her communication should be considered admissible as the facts that are
the subject of the communication clearly continued after the entry into
force of the Optional Protocol for the State party concerned inasmuch as the
discrimination was once again made obvious on 7 February 2006 at the second
reading of the Nationality, Immigration and Asylum Act 2006, when amendment
67, which mentioned her name as well as others and would have lifted the
discrimination against them, was denied.
5.2 The author points out that the "temporary or transitional provisions"
mentioned in the reservation of the United Kingdom have lasted for more than
20 years. The author is of the view that the temporary or transitional
provisions ought to have been repealed with the 2002 Act or in 2006. She
adds that the Government has deliberately blocked the legal route to redress
by way of the reservation vis-�-vis those British mothers with children born
before 1961 of foreign fathers.
5.3 The author maintains that the State party has not gone as far as it
reasonably and practicably could to address the fact that persons, such as
her son, are still unable to acquire British citizenship through the
maternal line.
5.4 The author points out that the 1981 Act acknowledged the right of minor
children born abroad after 7 February 1961 to British mothers (and foreign
fathers) to register as British citizens. She maintains that once the
Government acknowledged the right of selfsame persons to register as British
citizens as adults under the 2002 Act, the cut-off date of 7 February 1961
was no longer relevant. If it was unjust and discriminatory to deny some
children (who had now reached the age of majority) born abroad to British
mothers the right to apply for registration, it would be equally unjust and
discriminatory to deny the same right to others. The author wonders why the
same right of registration could not be given to those adults who had
previously been discriminated against under the 1981 Act.
5.5 The author disputes that nationality is determined by applying the
legislation in force at the time of the individual's birth inasmuch as
certain persons were able to register through their mothers in 1981 under
the 1981 Act and on their own behalf as adults in 2002.
5.6 The author concedes that the 1981 Act partially corrected the sex
discrimination which had historically existed by recognizing the right, as
from that date, for women to pass on their nationality to their children on
equal terms with men. However, it created new discrimination between certain
mothers, those with children born before 1961 and those with children born
after 1961. She submits that the discrimination was retained under the 2002
Act because those children who were born after 1961, whose mothers had
failed to register them as minors, were able to do so as adults.
5.7 The author questions the fairness of nationality legislation that has
not been made retroactive at least for those people who are still alive and
affected by it and compares the situation with the Act abolishing slavery
under which all slaves were freed. She believes that there should be a
legitimate aim before a difference in treatment can be justified and wonders
what that legitimate aim could be to single out one group of mothers. While
the author recognizes that no Government can redress all the injustices of
history and past generations, she thinks that it is any Government's
obligation to redress those injustices which are within their capabilities,
such as the present-day discrimination against living people, particularly
if formal commitments, such as the Human Rights Act and the Convention on
the Elimination of All Forms of Discrimination against Women, have been made
by that Government to the rest of the world. She furthermore submits that
the only possible excuse for a State not to fulfil its human rights
obligations to its citizens would perhaps be overwhelmingly damaging
consequences for the country (which is certainly not perceived as being the
case) and, if this were so, the Government would have the moral duty to
explain such consequences fully and satisfactorily.
5.8 The author maintains that a mother has a fundamental human right to pass
on her nationality to her child on equal terms with men and with other
mothers, whether that child be a minor or an adult, particularly as the same
right has already been recognized for other persons, as minors and as
adults, by two different nationality acts. She considers all continuing
injustices, predicated or defended on the grounds that they were legal when
they originated, unacceptable.
6. ADDITIONAL COMMENTS OF THE STATE PARTY ON ADMISSIBILITY
6.1 By its submission of 21 July 2006, the State party continues to rely on
its submissions on admissibility made on 13 April 2006.
6.2 The State party notes that the author has not expressly sought to engage
with or dispute the State party's submission regarding the following: that
the communication is inadmissible ratione temporis, by reason of the fact
that, at the very least from the date on which the author's eldest son
achieved his majority on 16 September 1972 (i.e., well before the adoption
of the Convention by the General Assembly and, a fortiori, well before the
State party's ratification of the Convention), the author had ceased to be a
victim; that the communication is inadmissible by reason of her failure to
exhaust all available domestic remedies; and/or that the provisions of the
continuing consequences of section 5 of the 1948 Act are clearly covered by
the actual terms of the reservation entered by the State party upon
ratification of the Convention. The State party submits that any one of the
first two grounds alone or these grounds in combination are sufficient to
render this communication inadmissible.
6.3 The State party states that the author's comments appear to have focused
primarily on the assertion that the legislative provisions covered by the
reservation have been more than "temporary" but have been "prolonged for
more than 20 years", and on the implicit invitation to the Committee to rule
that the reservation is impermissible and invalid.
6.4 The State party furthermore argues that the author's comments ignore the
fact that the reservation refers to certain temporary and transitional
provisions which will continue in force beyond January 1983 and that the
continued consequences of section 5 of the 1948 Act clearly fall within the
definition of such a temporary, and more importantly, transitional
provision. The State party explains that the word "transitional" is intended
to refer to measures in place until the transfer from an "old" to a "new"
regime has been completed, and not merely to provisions that remain in place
until appropriate legislative changes can be made. Section 5 of the 1948 Act
is the sole remnant of the old regime following the transition to the new,
non-discriminatory regime set up under the 1981 Act. The State party further
submits that, ever since the introduction of the 1981 Act, women have been
able to pass their nationality to their newborn children in the same way as
men have.
6.5 Moreover, the State party submits that the author's comments ignore the
position that, as a matter of international law, the Committee is not
competent to make binding determinations of whether the reservation is
impermissible owing to incompatibility with the object and purpose of the
Convention; and the State party's submissions that the reservation is, in
any event, not incompatible with the object and purpose of the Convention.
7. ADDITIONAL COMMENTS OF THE AUTHOR ON ADMISSIBILITY
7.1 By her submission of 9 August 2006, the author reiterates that her
communication should not be declared inadmissible ratione temporis. She
claims that the nationality law in force at the time of her son's birth in
1954 was discriminatory and that the current nationality law is
discriminatory and that she is indeed still a victim.
7.2 As regards the exhaustion of all available domestic remedies, the author
claims that, by making repeated applications for the citizenship of her
eldest son since his birth through the British Consulate, the Home Office,
correspondence with government officials and legal advisers, she has
exhausted all those remedies available to her. Her complaint was even
presented in the House of Lords debate as recently as 7 February 2006 and
was firmly rejected. She further asserts that, in order to obtain the
justice she seeks, the law has to be changed. She maintains that the avenue
of judicial procedure is a long and complicated route and would present for
her, at her age and with her resources, an enormous and impossible task far
beyond her capabilities and energies; to challenge an Act of Parliament and
all that it implies is an impossible mission for her to carry out. She
states that she could easily exhaust what is left of her life seeking to
exhaust all available domestic remedies and still arrive at nothing. She
sought the help of the Committee for this reason.
7.3 As regards the provisions of the continuing consequences of section 5 of
the 1948 Act being clearly covered by the reservation, the author finds it
hard to imagine that any continuing violation of human rights can be
maintained indefinitely on grounds that a reservation exists to allow it.
She would like to assume that this was not the interpretation intended when
the reservation was originally made.
7.4 The author argues that the State party is relying on semantics when it
refers to the meaning of "temporary" and "transitional". The author's
interpretation is that anything declared "temporary" and "transitional" will
eventually be reviewed and changed. She claims that the State party took the
route of solving the injustice by waiting it out until all the people who
are suffering the injustice become irrelevant by death and, as a
consequence, the problem is solved by its disappearance - rather than by
extirpating the old remnant of medieval legislation which discriminated
against old ladies and their adult children both in reference to men and to
other women. She considers this route to be contrary to the object and
purpose of the Convention as well as to official statements made publicly by
the State party to the effect that discrimination has no place in British
society.
7.5 The author submits that the Committee is competent to make binding
determinations on whether the reservation entered by the State party upon
ratification was impermissible and invalid and she also submits that the
reservation is indeed incompatible with the object and purpose of the
Convention.
8. ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE CONCERNING ADMISSIBILITY
8.1 In accordance with rule 64 of its rules of procedure, the Committee
shall decide whether the communication is admissible or inadmissible under
the Optional Protocol.
8.2 In accordance with rule 66 of its rules of procedure, the Committee may
decide to consider the question of admissibility and merits of a
communication separately.
8.3 The Committee has ascertained that the matter has not already been or is
being examined under another procedure of international investigation or
settlement.
8.4 In accordance with article 4, paragraph 2 (e), of the Optional Protocol,
the Committee shall declare a communication inadmissible where the facts
that are the subject of the communication occurred prior to the entry into
force of the present Protocol for the State party concerned unless those
facts continued after that date. The Committee observes that the Optional
Protocol entered into force for the United Kingdom of Great Britain and
Northern Ireland on 17 March 2004. The Committee considers that the alleged
discrimination complained of originated at the time of the birth of the
author's eldest son (16 September 1954), well before the Optional Protocol
or even the Convention were adopted. In those days, British nationality law
did not grant women - the author included - the right to pass on British
citizenship to their children, whereas their husbands, had they been
British, would have had such a right. The Committee notes that on 7 February
1979 there was a change in government policy, which allowed applications by
British women to have their minor children born on or after 7 February 1961
registered as British citizens. As a result of this change, the author
acquired the right to pass on her nationality in 1980 through registration
to her youngest son, who was born in 1966 and was still a minor, whereas she
was unable to do so for her eldest son, who remained ineligible on account
of his age. Bearing this in mind, the Committee considers that the relevant
facts of the case, i.e., the alleged discrimination against the author as
manifested in her inability, as compared to a British male citizen, to pass
on her nationality to her eldest son (as opposed to any discrimination
against her eldest son) stopped on the date on which her son achieved his
majority, i.e., 16 September 1972. After that date, her son had a primary
right to either retain his acquired nationality or to apply for the
nationality of another State, subject to the conditions set by that State.
More generally, such discrimination against the author and other women
stopped on 7 February 1979 with the new government policy. Both dates
precede the entry into force of the Optional Protocol. The Committee,
therefore, concludes that the communication is inadmissible ratione temporis.
8.5 In accordance with article 4, paragraph 1 of the Optional Protocol, the
Committee shall not consider a communication unless it has ascertained that
all available domestic remedies have been exhausted, unless the application
of such remedies is unreasonably prolonged or unlikely to bring effective
relief. The Committee notes the State party's unchallenged assertion that,
at the relevant time, i.e., in 1954 or between 1954 and 1972, the author
never made an application for registration of her eldest son as a British
citizen under section 7(1) of the 1948 Act and that, had she done so, any
refusal of such an application could have been challenged by way of judicial
review in the High Court, which body exercised then and continues to
exercise a supervisory jurisdiction over the exercise of statutory functions
and/or the exercise of discretion by public authorities. Neither has the
author ever since 1972 challenged in the High Court the continuing refusal
of the British authorities to grant her eldest son British nationality. In
line with a longstanding jurisprudence of other international human rights
treaty bodies, in particular the Human Rights Committee, FN6 the Committee
on the Elimination of Discrimination against Women considers that authors of
communications are required to raise in substance before domestic courts the
alleged violation of the provisions of the Convention on the Elimination of
All Forms of Discrimination against Women, which enables a State party to
remedy an alleged violation before the same issue may be raised before the
Committee. The Committee on the Elimination of Discrimination against Women
for this reason finds the present communication inadmissible under article
4, paragraph 1, of the Optional Protocol.
---------------------------------------------------------------------------------------------------------------------FN6
See for example communication Nos. 222/1987 M. K. v France, 1356/2005
Antonio Parra Corral v Spain and 1420/2005 Eugene Linder v Finland.
---------------------------------------------------------------------------------------------------------------------
8.6 The Committee sees no reason to find the communication inadmissible on
any other grounds.
8.7 The Committee therefore decides:
(a) That the communication is inadmissible under article 4, paragraph 2 (e),
of the Optional Protocol because the disputed facts occurred prior to the
entry into force of the Optional Protocol for the State party and did not
continue after that date and under article 4, paragraph 1, of the Optional
Protocol because of the author's failure to exhaust domestic remedies;
(b) That this decision shall be communicated to the State party and to the
author.
* The following members of the Committee participated in the examination of
the present communication: Ferdous Ara Begum, Magalys Arocha Dominguez,
Meriem Belmihoub-Zerdani, Saisuree Chutikul, Dorcas Coker-Appiah, Mary
Shanthi Dairiam, Cees Flinterman, Naela Mohamed Gabr, Fran�oise Gaspard,
Hazel Gumede Shelton, Ruth Halperin-Kaddari, Tiziana Maiolo, Violeta
Neubauer, Pramila Patten, Silvia Pimentel, Fumiko Saiga, Heisoo Shin, Glenda
P. Simms, Dubravka Simonović, Anamah Tan, Maria Regina Tavares da Silva, Zou
Xiaoqiao.
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