The claim

The dual citizenship crisis continues to haunt the Parliament into 2018.

On February 5, 2018, Leader of the House Christopher Pyne told RN Breakfast "Susan Lamb, the Member for Longman, is still, right now, a UK citizen. She is sitting in the House of Representatives and she is a citizen of the United Kingdom".

The Labor Party will not refer Ms Lamb to the High Court for consideration of her citizenship status unless the Government refers some of its MPs.

So is Ms Lamb really a British citizen sitting in the Australian Parliament? And what does this mean?

RMIT ABC Fact Check investigates.

The verdict

Mr Pyne's claim about Ms Lamb's citizenship status is a good call.

Ms Lamb's own legal advice confirms that she obtained British citizenship by descent at birth.

She applied to renounce her British citizenship before nominations for the 2016 election closed, but she did not enclose any evidence of her British citizenship with her application, as is required by the UK Home Office (and explained in its guidance notes).

After the election, she provided some documents, but her application was still rejected.

On publicly available information, she has not sought a review of the Home Office decision or made a new renunciation application.

There is no evidence that the British Secretary of State has registered a declaration of her renunciation, which the Australian High Court has described as "the moment at which British citizenship is lost".

Whether or not in the circumstances her continuing status as an Australian and British dual citizen means she is ineligible to remain in Parliament is a matter for the High Court to decide.

Who is Susan Lamb?

The eligibility to sit in Parliament of the Labor Party's Susan Lamb is under a cloud due to section 44 of the constitution. ( supplied: susanlamb.org.au )

Susan Lamb is a Labor Party politician, the member for the Queensland seat of Longman.

She was first elected in 2016, defeating the incumbent LNP member Wyatt Roy by 1,390 votes.

At that election, Longman was one of only two seats in Queensland where Pauline Hanson's One Nation party recommended preferences to Labor over the LNP.

It is now a marginal seat: the ABC's election analyst Antony Green tells Fact Check: "had One Nation preferences been directed to the LNP as in other electorates, then Lamb would probably have lost to Wyatt Roy."

What has happened?

Ms Lamb is an Australian — born in Mackay in 1972.

She says she has never held a British passport or even visited the UK.

However, her "statement in relation to citizenship" lodged with Parliament in December 2017 indicates that while her mother was born in Queensland (in 1948), her father was born in Edinburgh in the UK (in 1945).

There have been many changes to British nationality law since 1945, however the upshot for Ms Lamb is that she became a British citizen by descent as her father was British born and her parents were married at the time she was born.

In her statement, Ms Lamb marked a box "NO" in answer to the question "Are you now a citizen of any country other than Australia?".

Ms Lamb obtained a British legal opinion from English barrister Adrian Berry and attached it to her citizenship statement.

It is acknowledged in that opinion that Ms Lamb did obtain British citizenship at birth.

Mr Berry says this was because her parents were married to each other and thus she was "born legitimate to her father".

The issue is then whether Ms Lamb remains a British citizen today.

How do you renounce British citizenship?

The British Government allows people to renounce British citizenship and sets out the procedure on its website.

A person has to fill out a "Form RN" and pay the required fee.

The current version of the form (issued in June 2016) includes a section where the applicant must indicate how they came to hold their British citizenship (by birth, descent, registration or naturalisation).

However the version of the form in use when Ms Lamb was seeking to renounce her citizenship did not include such a section.

Both versions of the form include the words "See section 1 of the Guide and enclose evidence of your citizenship(s) or status".

The guide (issued in December 2015) includes the following information under the heading "WHAT YOU SHOULD SEND WITH THE FORM":

"Documents – Send evidence: That you are a British citizen, a British overseas territories citizen, a British Overseas citizen, a British subject or a British National (Overseas) (depending upon which citizenship or status you wish to renounce). • Normally, a passport will establish your citizenship or status. If you do not have one, you should send a birth certificate or a certificate of naturalisation or registration. If you have your citizenship or status through descent from a parent or grandparent, you should send documents proving that person's citizenship or status and your relationship to him or her."

Given the way that the former RN was drafted prior to June 2016, the British Home Office was unlikely to know the basis of the applicant's claim to citizenship unless documents were provided or that person had previously held a British passport.

Dr Helena Wray, Associate Professor in Migration Law at the UK's University of Exeter, tells Fact Check:

"The UK Government will want to ascertain that a person is a British citizen before allowing them to renounce because, among other reasons, a renunciation can be reversed and it would be difficult to claim at that stage that the person was never, in fact, a British citizen."

What did Ms Lamb do?

Fact Check has relied on the information provided by Ms Lamb in her citizenship statement, including the summary of facts recounted in Mr Berry's legal opinion.

On May 24, 2016, Ms Lamb completed the Form RN and the following day sent it, along with the Queensland Australian Labor Party's credit card details, to the UK Home Office.

Ms Lamb told the Parliament on February 7, 2018 that she "posted [the Form RN] by registered post with the required supporting documents".

In fact, Ms Lamb did not enclose any documents supporting her British citizenship status, such as the birth certificate referred to in the guidance notes. She did provide a copy of the photo page of her Australian passport.

This is acknowledged in Mr Berry's legal opinion, where he states:

"She did not enclose any evidence with the Form RN. Such evidence as was subsequently provided to the United Kingdom Home Office, was provided after she was elected on 2 July 2016."

Ms Lamb would have been able to obtain a copy of her birth certificate and her father's death certificate (if he died in Queensland) from the Queensland Department of Births Deaths and Marriages by making an application and paying the required fee.

Ms Lamb was also entitled to obtain a copy of her father's birth certificate from the British Registar's Office — the office has told Fact Check that "any person [can] apply for a certified copy of a register entry providing they can supply sufficient information to identify the entry".

The next events, according to the information in Ms Lamb's legal opinion were:

On or around July 7, 2016 the UK Home Office informed Evan Moorhead, the Queensland State Secretary of the ALP, that "in order to process [Ms Lamb's] application they required her birth certificate, her father's birth certificate and her parents' marriage certificate".

On or around July 7, 2016 the UK Home Office informed Evan Moorhead, the Queensland State Secretary of the ALP, that "in order to process [Ms Lamb's] application they required her birth certificate, her father's birth certificate and her parents' marriage certificate". On August 1, 2016, Mr Moorhead forwarded the birth certificates of Ms Lamb and her father to the Home Office.

On August 1, 2016, Mr Moorhead forwarded the birth certificates of Ms Lamb and her father to the Home Office. On August 10, 2016, the Home Office wrote to Ms Lamb refusing the renunciation application. The letter stated that the office "cannot be satisfied from the documents available that you hold British citizenship".

Only the August 10 letter was attached to Ms Lamb's parliamentary citizenship statement.

It is unclear what form the July 7 Home Office correspondence took and the precise request for documents it contained.

Can she appeal?

If Ms Lamb disputes the Home Office's decision to deny her renunciation application, it is open to her to have the decision reconsidered through the UK processes, including those mentioned in the August 10 Home Office letter.

The Home Office's August 10 letter states:

"If you believe the decision to refuse your application was not soundly based on nationality law, policy or our procedures and you wish to be reconsidered, you must complete Form NR and pay a fee".

Form NR is available on the Home Office's website.

According to the British Home Office's website:

"You'll get a 'declaration of renunciation' if your application is successful. This will be your application form, officially signed and stamped. The date your citizenship or status stops will be shown on the form."

The relevant law is the British Nationality Act 1981 section 12 which states:

12 Renunciation (1) If any British citizen of full age and capacity makes in the prescribed manner a declaration of renunciation of British citizenship, then, subject to subsections (3) and (4), the Secretary of State shall cause the declaration to be registered. (2) On the registration of a declaration made in pursuance of this section the person who made it shall cease to be a British citizen.

Dr Wray tells Fact Check:

"There is no appeal against these decisions but it is possible to bring a judicial review (which would be concerned with whether the law was correctly applied). It should also be possible to have a reasonable dialogue with the Home Office ... particularly if the individual has instructed specialist lawyers who understand the complexities of the law."

In the 2017 case involving former One Nation senator Malcolm Roberts, it was noted by High Court Justice Patrick Keane that "It was common ground between the experts that the moment at which British citizenship is lost is when a declaration of renunciation is registered by the Secretary of State".

Mr Berry was one of the two expert witnesses in that case.

Given there is no indication that Ms Lamb's declaration has been registered and the Home Office has not issued a declaration to her, Ms Lamb remains a British citizen.

There is also no indication that Ms Lamb made an application for reconsideration, sought a judicial review, had further discussions with the Home Office or filed a fresh renunciation application.

Fact Check asked Ms Lamb's office whether she had made any further attempts to renounce her British citizenship.

A spokesman said "All information relating to Susan's case is available in the public Member's Register … Or in Susan's speech which was delivered in the Chamber [on February 7]."

A similar case

Ms Lamb's situation can be compared to that of Labor Senator Katy Gallagher, who agreed to be referred to the High Court.

Katy Gallagher announces her decision to refer herself to the High Court during a speech in the Senate on December 6, 2017. ( ABC News: Marco Catalano )

Senator Gallagher was British by descent through her father, who was born in the UK.

According to Senator Gallagher's citizenship statement lodged with the Senate (which also included a legal opinion from Mr Berry), the following occurred:

Senator Gallagher completed a Form RN on April 20, 2016 and sent it, along with her birth certificate, to the British Home Office.

Senator Gallagher completed a Form RN on April 20, 2016 and sent it, along with her birth certificate, to the British Home Office. On July 1, 2016, the Home Office wrote to her asking for "original copies of her birth certificate and her parents' marriage certificate".

On July 1, 2016, the Home Office wrote to her asking for "original copies of her birth certificate and her parents' marriage certificate". On July 20, 2016, Senator Gallagher sent original versions of her father's birth certificate, her parents' marriage certificate and her own birth certificate.

On July 20, 2016, Senator Gallagher sent original versions of her father's birth certificate, her parents' marriage certificate and her own birth certificate. On August 16, 2016 the Home Office wrote to Senator Gallagher, confirming the registration of her renunciation effective August 16, 2016.

Mr Berry suggests that the birth certificate supplied with the initial application "was sufficient to determine that her father was a British national by virtue of birth in the UK and that he was married to her mother at the time of Senator Gallagher's birth".

In Senator Gallagher's case, there is no suggestion that she remains a British citizen.

Instead, her case comes down to the timing of the registration of renunciation, as it was not confirmed until after she was elected.

What happens next?

As is now well known, Section 44 of the Australian Constitution deals with the disqualification of members who hold citizenship of another country or have an allegiance to a "foreign power".

Based on existing court rulings, candidates in the 2016 federal election needed to have renounced any foreign citizenship by June 9, 2016, the closing date for nominations.

The test as noted by Justice Gerard Brennan in the Sykes v Cleary case is that a person needs to take "all reasonable steps…under the relevant foreign law to renounce the status, rights and privileges carrying the duty of allegiance or obedience and to obtain a release from that duty".

Ms Lamb asserts she is "validly elected to Parliament and [is] eligible to sit in [the] House" as she "took all reasonable steps to renounce [her] citizenship".

Ms Lamb says that she was unable to obtain her parents' marriage certificate as she is estranged from her mother and Queensland law does not allow her to obtain the marriage certificate.

It is indeed correct that Ms Lamb is only entitled to obtain a copy of the marriage certificate after submitting her mother's written permission and proof of identity.

However, there is scope for her to make a special application to the Registrar-General.

A spokeswoman for the Queensland Department of Births Deaths and Marriages tells Fact Check: "Where an application might fall outside the policy, for example where parental consent may not be obtainable, the Registrar-General considers such requests on a case-by-case basis."

It may also be possible for a third party to obtain proof of divorce.

Further, in January 2018, Ms Lamb's mother told the media that she would have assisted her daughter had she been asked, telling The Australian:

"I didn't know about her going into politics until it was pretty much all over and done…It was a big surprise. She didn't contact me but I would have definitely helped her."

Sorry, this video has expired Susan Lamb says "mum dropped me off at school and she never came back"

It is worth noting that the request for a marriage certificate only came after Ms Lamb won her seat, and she did not provide those documents that she did have access to, until after that time.

A legal argument proffered in Mr Berry's opinion is that the British law and regulations do not require an applicant for renunciation to provide evidence.

He says:

"While the Home Office, as a matter of administrative practice, may have desired evidence to show the basis on which she was a British citizen, it is plain that the legislation does not require that evidence to be provided."

That is an argument that could be put in any discussions with the Home Office or argued in a judicial review, but on publicly available information neither has taken place.

Ms Lamb may argue that she did all that was reasonable under the British law and regulations and so complied with the Sykes v Cleary test.

But the Australian High Court would need to decide that point.

Constitutional law expert Professor Anne Twomey tells Fact Check:

"The problem is that the High Court has never clearly explained what its reasonable steps test is and when it applies. It would seem odd, however, if the High Court did not require people to meet reasonable procedural or administrative tests in order to renounce their foreign citizenship. It does not seem to be unreasonable for the British Government to ask for formal proof that a person is a citizen before accepting that person's renunciation of citizenship."

Lead researcher: Paul Crossley, Senior Researcher, RMIT ABC Fact Check

Sources