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Convention on the Elimination of All Forms of Discrimination Against Women

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Convention on the Elimination of All Forms of Discrimination Against Women United Nations CEDAW/C/53/D/38/2012 Convention on the Elimination Distr.: General 27 November 2012 of All Forms of Discrimination against Women Original: English Committee on the Elimination of Discrimination against Women Communication No. 38/2012 Decision adopted by the Committee at its fifty-third session, 1-19 October 2012 Submitted by: Mr. J.S. (not represented by counsel) Alleged victims: The author State party: United Kingdom of Great Britain and Northern Ireland Date of communication: 24 February 2011 (initial submission) References: Transmitted to the State party on 23 February 2012 (not issued in document form) Date of adoption of decision: 12 October 2012 GE.12 CEDAW/C/53/D/38/2012 Annex Decision of the Committee on the Elimination of Discrimination against Women under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women concerning Communication No. 38/2012* Submitted by: Mr. J. S. Alleged victims: The author State party: United Kingdom of Great Britain and Northern Ireland Date of communication: 24 February 2011 (initial submission) The Committee on the Elimination of Discrimination against Women, established under article 17 of the Convention on the Elimination of All Forms o f Discrimination against Women, Meeting on 15 October 2012, Adopts the following: Decision on admissibility 1.1 The author of the communication is Mr. J. S., an Indian national born in 1976. He claims to be a victim of a violation by the State party of his rights under articles 1, 2, 3 and 9 of the Convention on the Elimination of All Forms of Discrimination against Women (the Convention). The author is acting on his own behalf and is not represented by counsel. The United Kingdom of Great Britain and Northern Ireland ratified the Convention on 7 April 1986 and acceded to the Optional Protocol to the Convention (the Optional Protocol) on 17 December 2004, which came into force on 17 March 2005. 1.2 Upon ratification of the Convention, the State party made the following reservation concerning 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 * The following members of the Committee participated in the adoption of the present communication: Ms. Ayse Feride Acar, Ms. Nicole Ameline, Ms. Magalys Arocha Dominguez, Ms. Violet Tsisiga Awori, Ms. Barbara Bailey, Ms. Olinda Bareiro-Bobadilla, Ms. Meriem Belmihoub-Zerdani, Mr. Niklas Bruun, Ms. Náela Gabr, Ms. Yoko Hayashi, Ms. Ismat Jahan, Ms. Soledad Murillo de La Vega, Ms. Violeta Neubauer, Ms. Pramila Patten, Ms. Victoria Popescu, Ms. Zohra Rasekh, Ms. Patricia Schultz, Ms. Dubravka Šimonović and Ms. Xiaoqiao Zou. 2 CEDAW/C/53/D/38/2012 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”. 1.3 On 21 May 2012, the Working Group on Communications, acting on behalf of the Committee pursuant to rule 66 of the Committee’s rules of procedure, decided to examine the admissibility of the communication separately from its merits. Facts as presented by the author 2.1 The author’s mother was born in Kenya in 1943 and holds United Kingdom and Colonies’ citizenship (CUKC). This citizenship could not be passed on to the author at the time of his birth pursuant to section 5 of the British Nationality Act 1948, which only allowed the passing on of citizenship from the father, and not from the mother, to the children. 2.2 In 2011, the author inquired about the acquisition of British citizenship with the UK Border Agency. On 17 February 2011, through an e-mail correspondence, he was informed that, before 1983, British women were unable to pass on their citizenship in the same way as men and that he would not have been able to acquire British citizenship under section 5 of the British Nationality Act 1948 through a mother who was a citizen of the United Kingdom and Colonies at the time of his birth. However, as of 1979, within the British Nationality Act 1948, a child under 18 could be registered as a citizen of the United Kingdom and Colonies. In 2002, a section 4 C was added to the British Nationality Act 1981, allowing registration as British citizens if the persons interested could have been registered in accordance with the policy announced in 1979. The authorities’ aim in introducing section 4 C was to allow those who would have acquired British citizenship automatically on 1 January 1983,1 but for the sexual discrimination in section 5 of the British Nationality Act 1948, to register as British citizens. The author was not able to acquire citizenship of the United Kingdom and Colonies through his mother, as women were not able to pass that status on before 1983, but he was informed that he might be able to register as a British citizen if he met the criteria of section 4 C. To qualify, he needed to show that he could have become a citizen of the United Kingdom and Colonies and had the right of abode in accordance with the Immigration Act in the United Kingdom, had women been able to pass on citizenship in the same way as men. 2.3 The author made a claim for citizenship to the Home Office but he maintains that the law needs to be changed and he does not have the necessary financial means to exhaust domestic remedies in this connection, as it would entail a challenge to an Act of Parliament. Complaint 3.1 The author claims that he is a victim of discrimination of a continuous nature, because the revision of the 1948 British Nationality Act in 1981 and 2002 did not eliminate the discrimination against women. He claims that if he had been born of a father with United Kingdom and Colonies’ citizenship, or after 1983, he could have applied for a British passport. 3.2 The author claims that he cannot enjoy his family life, as his parents live in the United Kingdom and he lives in India. 1 The British Nationality Act 1981 came into force on 1 January 1983. 3 CEDAW/C/53/D/38/2012 3.3 The author claims that the Convention recognizes women’s autonomy and equality in the transfer and acquisition of nationality, and permits either spouse to confer nationality on their children. On the issue of nationality, the granting of equal rights to women requires having an independent nationality, regardless of the nationality of one’s husband, and granting equal rights regarding the nationality of children. States parties are also expected to uphold equal rights with regard to laws relating to the movement of persons and the freedom to choose one’s residence and domicile. They must also take measures to eliminate discrimination against women in matters relating to marriage and family relations, and ensure that overall equality between men and women exists. Any State which does not respect these provisions in practice and law fails in its duties under articles 1 and 2 of the Convention. 3.4 The author claims to be a victim of a violation of article 9 of the Convention. In substantiation, he refers to the Committee’s general recommendation No. 21 (1994) on equality in marriage and family relations2 (which emphasizes the importance of granting equal rights to women concerning acquisition and retention of citizenship. The author notes in particular that paragraph 6 of general recommendation No. 21 reads as follow: “Nationality is critical to full participation in society […]. Without status as nationals or citizens, women are deprived of the right to vote or to stand for public office and may be denied access to public benefits and a choice of residence. Nationality should be capable of change by an adult woman and should not be arbitrarily removed because of marriage or dissolution of marriage or because her husband or father changes his nationality.” State party’s observations on admissibility 4.1 The State party presented its observations on admissibility by note verbale of 23 April 2012. It requested the Committee to examine the admissibility of the communication separately from its merits. The State party considers that the communication should be declared inadmissible under article 2 of the Optional Protocol and rule 68 of the Committee’s rules of procedure, as the author does not have “victim standing”. According to the State party, the communication should also be declared inadmissible under article 4, paragraph 1, of the Optional Protocol, for non-exhaustion of domestic remedies, and also for incompatibility with the provisions of the Convention under article 4, paragraph 2 (b), of the Optional Protocol. Moreover, the communication should be declared inadmissible under article 4, paragraph 2 (c), of the Optional Protocol, as manifestly ill-founded, and under article 4, paragraph 2 (e), of the Optional Protocol, as the relevant facts occurred before the entry into force of the Optional Protocol for the State party. 4.2 The State party recalls the facts of the case. The author is an Indian national, born in 1976 in India, where he presently resides. His mother was born in Kenya in 1943 and was a British Subject at birth. The author’s mother became a citizen of the United Kingdom and Colonies (CUKC) under the British Nationality Act 1948 (the 1948 Act). She retained CUKC status when Kenya became independent in 1963 because she was not eligible for Kenyan nationality.
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