Routes to British Citizenship for BN(O) Holders and Their Children: Section 4B, 4(2) & More Explained

Before the handover of Hong Kong to China in 1997, the British government opened a voluntary registration process for residents of Hong Kong with British Dependent Territories (BDTC) status to retain a connection with the UK. The scheme was open from 1 July 1987 until 31 December 1997. Those who actively registered acquired the status of British National (Overseas), often abbreviated to BN(O) status. Those BDTC’s who did not apply for BN(O) nationality and had another nationality on 1 July 1997 lost their British nationality automatically. It is not possible to apply for BN(O) nationality now and there were no provisions made for this status to be transmitted to future generations.

BN(O)s are British nationals and therefore entitled to consular protection when travelling abroad. However, they are not British citizens, do not hold the right of abode and are subject to immigration control when entering the United Kingdom, although they are not required to make visa applications to come to the UK for up to six months with an ETA. BN(O) nationality also does not provide an automatic right to live in Hong Kong – although being settled in Hong Kong was a requirement to become a BN(O).

In recent years the British government have opened a visa route for BN(O)s and their dependent family members to live in the UK. Further information on the visa route can be found here. However, the remainder of this blog will focus on potential scenarios for which those with BN(O) nationality (or their children) could qualify for British citizenship instead. Please note that the applications referred to below do not necessarily depend on an applicant (or parent) holding BN(O) nationality but are discussed in the context of the applicant (or parent) holding BN(O) nationality. It is possible for a person to hold British citizenship and BN(O) nationality concurrently.

Section 4B

Section 4B of the British Nationality Act 1981 is a type of adult registration application. It makes provision for registration of BN(O)s who do not have any other citizenship or nationality (other than BN(O) status) and who after 19th March 2009 have not “renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality.” It is common for BN(O) nationals to hold a connection to a country that does not permit dual nationality, perhaps because they were born there or their parents were a national of such a country, increasingly the likelihood of them qualifying on this route.

The key requirement of this application is demonstrating that the applicant does not hold any other nationality (and has not lost their other nationality since 19th March 2009). This can sometimes be difficult as it requires proving a negative. The Home Office also require statements from relevant authorities confirming that they do not hold citizenship or nationality of another country. The Home Office guidance also shows an awareness of the nationality laws of other countries (including Kenya, Nepal, India, Pakistan, Sri Lanka and China). This can be helpful but equally the Home Office guidance indicates that they may not accept a supporting letter from the authorities of another country where it contradicts the information they hold about that country.

As an example, a Court of Appeal decision in 2021 found that the appellant, Hashim Tariq, had lost his citizenship through inaction after the relevant date of 19th March 2009 (Secretary of State for the Home Department v Tariq [2021] EWCA Civ 378 ) and was therefore not entitled to register under section 4B.

The initial application was submitted in 2010 and relied on a letter from the Pakistani consulate in Hong Kong stating that Mr Tariq ceased to be a Pakistani national from the point that he acquired BN(O) nationality in 1997. However, expert evidence found that Mr Tariq in fact only lost his Pakistani citizenship after turning 21 (on 2 January 2010, after the relevant date of 19 March 2009). He was therefore found to have lost his Pakistani citizenship by inaction after the relevant date. It is therefore vitally important to be able to prove the circumstances of when any other citizenship or nationality was lost for an application to be successful.

Registration on this route confers British citizenship by descent. This means that citizenship cannot be automatically passed on to further generations born outside of the UK. Given that BN(O) passports are no longer recognised as valid travel documents in Hong Kong, obtaining full British citizenship can be very useful for residents of Hong Kong who need to travel, even if they have no immediate intention of relocating to the UK.

Section 4(2)

Applications made under section 4(2) of the British Nationality Act 1981 are tailored towards BN(O)s who have completed a period of 5 years residence in the UK (for example with permission on the BN(O) immigration route), which is unlikely to be the case for applicants applying under section 4B.

As well as holding BN(O) nationality, the requirements of an application under 4(2) are:

• The applicant must have been in the UK at the beginning of a five year period ending on the date of application, without being absent from the UK for more than 450 days across those five years or 90 days in the 12 months prior to the date of application
• The applicant must have had no time limit attached to their stay for at least 12 months before making the application (for example, by holding indefinite leave to remain)
• The applicant (if aged over 10) is of good character

The requirements of a section 4(2) application are therefore similar to those made by those without BN(O) nationality to naturalise under section 6(1) of the 1981 Act. The key differences are there is no requirement to pass the Life in the UK test, there is no English language requirement and no requirement for the applicant to intend to make the UK their principal home after the application is granted. The registration fee is also cheaper than applying to naturalise, currently costing £1,670 for an adult application (inclusive of the citizenship ceremony fee).

Registration on this route confers British citizenship otherwise than by descent, meaning that British citizenship can be transmitted to the applicant’s children born outside of the UK after registration. If an applicant meets the requirements of this application and section 4B they should generally apply under section 4(2) as it provides the stronger form of British citizenship.

Routes for Children

There are various application routes available for children to register depending on the circumstances. The most relevant for children of BN(O) nationals are likely to be section 3(1) and section 3(5).

Section 3(1) allows a child born outside of the UK to be registered as a British citizen if the application is made whilst they are a minor and the Secretary of State thinks the applicant fit to be registered. Whilst the statutory requirements are minimal, there is extensive guidance on when registration is likely to be appropriate. Most of the time this includes one parent being British and the other parent being settled, the child having completed a period of residence, both parents consenting to the application and the applicant being of good character (if over the age of 10). Full guidance can be found here.

A section 3(1) application may be an option for a child born abroad who has subsequently moved to the UK with parent(s) granted immigration permission as a BN(O) national (who will generally need to have subsequently settled here).

Alternatively, section 3(5) permits registration for a child born outside of the UK to a parent that was a British citizen by descent at the time of the birth who has lived in the UK with their parents for at least three years prior to the date of application without the applicant or either parent having been absent from the UK for more than 270 days across the three year period. The consent of both parents is a statutory requirement of this application and the application must be made whilst the applicant is a minor. This application may be suitable where a BN(O) parent has registered under section 4B prior to the applicant’s birth and then moved with the family to the UK afterwards (although registration under 4B is not necessary for a BN(O) to be eligible for immigration permission in the UK).

If a child is born inside the UK to a BN(O) parent, they will be automatically born British if the parent has settled on any immigration route or registered/naturalised under one of the provisions outlined above prior to their birth. If a parent registers or naturalises after their birth (whilst the child is still a minor), there is very likely to be a straightforward section 1(3) registration application that the child can make.

How OTB Legal can help gain British Citizenship for BN(O) Holders and Their Children

There are a wide range of different circumstances when registration may be possible and the examples provided above are there to demonstrate a selection of scenarios rather than an exhaustive list. It is strongly recommended that you seek legal advice before making an application, so please contact us should you wish to make an application.

At OTB Legal we offer an initial consultation in which you can outline your enquiry to us. Once we have provided you with an initial assessment we are then able to provide further advice and assistance with submitting your application. If you think you may be eligible, please get in touch with us as we would be delighted to help you make a successful application.