Opening a new door to registration for British citizenship

Opening a new door to registration for British citizenship: Section 4L of the British Nationality Act 1981

The Nationality and Borders Act 2022 was one of the most hotly debated and controversial pieces of legislation in recent times. However, despite its many controversial and restrictive immigration measures, one (and perhaps the only one depending on who you ask!) positive change it did bring related to British citizenship. It inserted a whole new section of legislation, namely, ‘Section 4L’ into the British National Act 1981 (“the BNA 81”) which opened new routes to register as a British citizen.

The Purpose

Prior to the introduction of section 4L, an adult’s options to register themselves as British were extremely limited. Section 4L opens an all-encompassing route that allows those who are now 18 years or over to submit applications for registration on a discretionary basis. It is very much the equivalent of a discretionary application for registration of British citizenship under section 3(1) of the BNA 81 for children under 18 years.

The Rules

An application under section 4L can be made as long as the person is of full age and capacity and in the Secretary of the State’s opinion, they would have, or would have been able to become British citizens but for one of the following three reasons:

• Historical legislative unfairness;
• An act or an omission of a public authority; and
• Exceptional circumstances relating to that person

There is a lot to unpack here but it is apparent straightaway that section 4L does not place many limits on instances in which an application can be made because the third limb seems to capture all just like section 3(1) of the BNA 81 (and therefore, perhaps may prove to be the most difficult to evidence).

Historical Legislative Unfairness 

One of the main beneficiaries of section 4L are those who may have been eligible for citizenship but could not ultimately obtain it because of the seemingly discriminatory legislation concerning the rights of a woman to pass down her nationality. On 1 January 1983 (the date when the main provisions of the BNA 81 came into effect) the nationality laws in place at the time saw seismic changes.  The notion of nationality as we know it today was very much different before the BNA 81 came into effect.

From 1 January 1983, a British mother (who is British otherwise than by descent) was for the first time able to pass down her nationality to any children born outside the UK. Prior to this change, only a father could pass down nationality to a child born outside the UK under section 5(1) of the British Nationality Act 1948.

Naturally, this legislative unfairness of allowing only fathers to pass down nationality led to a lot of people missing out on British citizenship. This issue was addressed to a certain extent with the introduction of section 4C into the BNA 1981, however, this only allowed children born to a British mother before 1 January 1983 to apply. This still omitted a lot of other people born outside the UK who otherwise could have been British. An example of this is a grandchild of a female British citizen who had married and settled outside the UK. Where a British mother gave birth to a child outside the UK, under the old law, the child was not able to obtain British citizenship. It then followed that their own children then could not be registered as British citizens either.

Section 4L now steps in to rectify the decades long wrongs which essentially deprived the grandchildren of British mothers the chance to be registered as British citizens and provides an avenue for them to be registered as British citizens on the basis of historical legislative unfairness. For an application to be successful under this route, clear evidence which demonstrates the parentage link to a British grandmother will be paramount.

Some people who have an ancestry visa or are eligible for an ancestry visa may now be eligible to register themselves as British citizens under this new route. Also, it is important to note that historical legislative unfairness is an open concept and is not just limited to women historically not being able to pass down nationality. 

An act or omission of a public authority 

This limb, as the name suggests, allows an adult to register as a British citizenship where they were deprived of the chance to become British because of an express act or an omission of a public authority.

A prime example of this would be a person who had been a looked after child, especially for a considerable period of time, and the local authority omitted to apply for them to become British whilst they remained a child. Now it is important to note that a local authority is not under any defined legal obligation to obtain British citizenship for a looked after child, however, generally keeping in mind the best interests of the child, a local authority will look to secure the looked after child’s rights in the UK. For an application to succeed under this avenue, evidence that the person was a looked after child by a local authority will be necessary, along with other documents to demonstrate entitlement to citizenship at the time.

Exceptional circumstances

As mentioned at the beginning, this particular limb of section 4L is quite wide and may be able to capture any instance where a person is unable to register themselves either because of legislative unfairness or because of the act or omission of a public authority.

For an application to succeed under this particular section, the exceptional circumstances which prevented a person from becoming British must have a clear link to their inability to become British. The Home Office are likely to take a more stringent approach to an application under this particular part of section 4L and so it is to be expected that the Home Office will apply a high threshold in determining whether a particular sets facts can be considered ‘exceptional’.

How we can help

While the introduction of the section 4L is a welcome change, the discretionary nature of these applications can bring complications, therefore, it would be important to obtain the correct legal advice before proceeding with an application under this route. At OTB Legal, we offer a no-obligations consultation which will allow us to consider your situation and provide preliminary advice without any charge. Please book in an appointment with one of our expert Immigration lawyers if you want to explore your options of registering as a British citizen.