It’s Not Right but (now) It’s Okay? Registration under special circumstances: a potential route to British citizenship

The history of British nationality law has been marked by instances where individuals were unfairly denied British citizenship or were excluded from it. To address this historical legislative unfairness and offer a pathway for these individuals, the Nationality and Borders Act 2022 introduced Section 4L into the British Nationality Act 1981 (‘the 1981 Act’).

Section 4L introduces a discretionary route allowing adults to register as British citizens if they would have been, or would have been able to become, a British citizen but for the following:

• Historical legislative unfairness
• An act or omission by a public authority, or
• Exceptional circumstances relating to the applicant

Building on our previous blog, in this blog post, we will explore examples of when these three criteria may apply and offer individuals a route to British citizenship.  

Historical legislative unfairness

Section 4L creates a wide provision for those who were excluded from British citizenship because of historical legislative unfairness. The concept is not defined as such but the Home Office does set out examples of what type of circumstances are intended to fall under the provision. At a minimum, the intention is for this category to cover cases where there is discrimination on the basis of a protected characteristic: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Q&A 1: Were you born outside of the UK and do you have a UK-born grandmother?

If you were born outside of the UK (before 1988) with a UK-born grandmother, Section 4L may offer you a path to citizenship. According to the British Nationality Act 1948 (‘the 1948 Act’), individuals born outside the UK to a UK-born father were recognised as Citizens of the United Kingdom and Colonies (CUKC) by descent. Consequently, they could register any of their children (grandchildren to that UK born man), born outside of the UK, at a UK consulate within a year of their birth. Therefore, individuals born abroad with a UK-born grandfather had the right to register for citizenship.

However, this provision did not extend to cases where the grandmother was UK-born since, at that time, women could not pass citizenship to their children. Although Section 4C of the 1981 Act addresses the issue of women being unable to pass on citizenship to their children born abroad, it does not retrospectively address the grandchildren who could not be registered in the first year of their life as they did not at the time have a British parent. For individuals who were unable to register as children due to the historical sexism present in the 1948 Act, Section 4L may provide a solution.

It is important to note that these provisions only apply to individuals born before 1988. Since 1 January 1988, the transmission of British citizenship has been restricted to one generation born abroad, regardless of registration at a consulate.

Q&A 2: Were you born to a mother in a civil partnership with a British citizen before 2009?

As of 6 April 2009, the Human Fertilisation and Embryology Act 2008 introduced provisions acknowledging a mother’s female civil partner as their child’s parent. Consequently, if a child is born to a non-British mother whose civil partner is a British woman, the child can register (prior to their 18th birthday) as a British citizen based on having a British parent.

If you missed out on this opportunity because you turned 18 before 2009, but would have been eligible to register as a British citizen under these circumstances, Section 4L may apply. This section addresses historical legislative unfairness by rectifying the situation where civil partnerships were treated differently from marriages, thus excluding certain individuals from acquiring British citizenship.

An act or omission of a public authority

Section 4L(1)(b) allows for registration of an adult where the applicant missed out on being or becoming a British citizen as a result of an act or omission of a ‘public authority,’ for example a government department or local authority.

Q&A 3: Are you applying for citizenship based on long residence but are struggling to provide evidence of your life here due to public authorities’ failure to maintain proper records?

To apply for citizenship based on long residence, as per Section 1(4) of the 1981 Act, you must prove you lived in the UK for the first ten years of your life, with no more than 90 days absence per 12-month period.

However, gathering childhood records can be challenging for many applicants. If public authorities, like the NHS or educational institutions, failed to maintain accurate or any records of your residence in the UK as a child, and this evidence is critical to your application, you may consider applying under Section 4L. You must offer alternative evidence of your residence, for example through sworn affidavits from family or friends. Applicants must also provide evidence of state actions or omissions, such as email exchanges or attendance notes confirming the lack of relevant records and the reasons behind it.

Q&A 4: Were you eligible to be registered for British citizenship as a child but you were under local authority care and they failed to do so?

If a local authority responsible for your care as a child failed to register you for British citizenship, Section 4L may apply. An application in this context would require evidence of your entitlement to citizenship as a child (such as a birth certificate, your parents’ details and evidence of UK residence) and proof of local authority care. A lack of records from local authority care demonstrating the above may also fall under Section 4L but note the requirement to provide credible, alternative evidence that you were entitled to British citizenship and were in local authority care.

Exceptional circumstances

The final provision of Section 4L allows for registration in cases where an individual was unable to acquire British citizenship due to exceptional circumstances pertaining to them (and which do not fall under the other two categories previously discussed). This provision is applicable when such exceptional circumstances directly prevented the individual from obtaining, or being born with, citizenship and is not intended to cover situations where the individual fails to meet the requirements through other means.

Q&A 4: Were you adopted by British parents after you turned 18?

In certain cases, Section 4L might be relevant for adopted children of British parents where the adoption took place in the UK. For example, the scenario where an adoption application was submitted prior to an individual’s 18^th birthday but the adoption order was not granted until after they turned 18. If the adoptive parent is a British citizen, the individual would have automatically become a British citizen under Section 1(5) of the 1981 Act had the adoption order been issued before their 18^th birthday.

Exceptional circumstances may therefore apply if the individual is no longer eligible for citizenship purely because they turned 18 before their adoption was finalised.

Supporting evidence should include the adoption order, documentation indicating the processing timeline for the adoption application (such as a copy or acknowledgment), any relevant information concerning the adoption and its timing, and evidence confirming the adoptive parent's British citizenship.

These are just some of the instances in which an individual may be deemed eligible for British citizenship. Our specialist immigration team at Kingsley Napley has considerable experience of navigating British nationality law and can assist you to find out whether you and your family members can apply to be British. 

About the authors

Bukunmi joined the Immigration team as an Associate in April 2021 and is a member of the department’s private client team. Bukunmi is experienced in assisting a wide range of clients with their UK immigration matters, in particular private individuals, who wish to work, study, visit or relocate to the UK. She advises on a broad range of UK immigration matters.

Zoe is a trainee solicitor at Kingsley Napley. She is currently in her second seat, with the Clinical Negligence team. Her first seat was in the Immigration team. Zoe works with the Zacchaeus 200 Trust charity, acting for clients to appeal disability benefit decisions. She also volunteers for Amicus, Queen Mary Legal Advice Clinic and the Schools Consent Project.

 

Further information

If you have any queries in relation to the above or any other immigration or nationality matter, please contact a member of the immigration team.