J.S., an Indian national, was born in 1976. When he was born, the British Nationality Act 1948 prevented his mother from passing her U.K. citizenship onto him. Under section 5 of the Act, only fathers could pass their citizenship onto their children.
J.S. submitted a communication under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) in which he claimed that the State Party had violated articles 1-3 and 9 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
In relation to articles 1 and 2, he claimed that CEDAW
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.
To support his claim regarding a violation of article 9 of CEDAW, J.S. referred to the CEDAW Committee’s General Recommendation No. 21 on equality in marriage and family relations in which it stated that:
[n]ationality 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
The State Party contested the admissibility of communication on several grounds, namely that:
- as a man and a child of a woman denied the right to pass her nationality onto her children, J.S. lacked the requisite standing to submit an individual communication under the Optional Protocol (Optional Protocol, art 2);
- J.S. had failed to exhaust domestic remedies, specifically the possibility of judicial action against the refusal of his application for registration as a British citizen (Optional Protocol, art 4(1));
- the communication was incompatible with the rights set forth in CEDAW (Optional Protocol, art 4(2)(b));
- the communication was manifestly ill-founded due to the State Party’s reservation to article 9 of CEDAW (Optional Protocol, art 4(2)(c));
- the relevant facts occurred prior to the entry into force of CEDAW and the Optional Protocol for the State Party (Optional Protocol, art 4(2)(e).
CEDAW Committee’s decision on admissibility
The Committee on the Elimination of Discrimination against Women declared the communication inadmissible under article 4(1) of the Optional Protocol due to the failure of J.S. to exhaust domestic remedies. In doing so, the Committee noted that J.S. had himself conceded that “he did not exhaust domestic remedies to challenge the refusal of his application for registration as a British citizen … despite the possibility of judicial action including a legal action under the Human Rights Act 1998.” The Committee further noted that J.S. had not established that such remedies had been unreasonably prolonged or were unlikely to bring him effective relief.
Having found the Committee inadmissible under article 4(1), the Committee decided not to examine any other inadmissibility grounds. Interestingly, the Committee’s decision is silent on the author’s legal standing, as a man, to bring a communication under the Optional Protocol to CEDAW.
Communication No. 38/2012, UN Doc. CEDAW/C/53/D/38/2012 (27 November 2012)