The Nationality and Borders Act 2022 amended the British Nationality Act British Nationality Act 1981 (BNA 1981) and introduced a new discretionary route allowing adults to register as British citizens. This new provision came into force on 28 June 2022.
Section 4L Acquisition by registration: special circumstances outlines three new instances when the Secretary of State would grant citizenship to an adult. An adult can be registered 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.
Historical legislative unfairness
‘Historical legislative unfairness’ is defined in the Act to include circumstances where previous legislation treated men and women differently, or treated children differently depending on the marital status of their parents. Other sections have already previously been introduced to the BNA 1981 to correct such historical discrimination, but this is a mopping up provision designed to fill any previous gaps in rectifying complex historical nationality legislation.
The Act and accompanying guidance focuses on unfairness rooted in protected characteristics, such as gender, although the definition of ‘historical legislative unfairness’ is not restricted and may leave open the possibility of seeking to make applications based on other types of unfairness.
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’. Examples could include where an applicant was previously issued a British passport in error for many years, only coming to light after they had lost a previous entitlement to register as British; or a local authority failing to apply to register a child in their care as British where they were eligible to do so.
Finally, Section 4L (1) (c) allows for registration in ‘exceptional circumstances’. These must not only relate specifically to the applicant, but there must also be a clear causal link between these exceptional circumstances and the individual’s inability to become a British citizen. The guidance has made it clear this is not a last resort should you fail to meet other requirements, and the example provided is a parental child abduction case, which prevented the individual from becoming a citizen. This would not have been an exceptional circumstance had the family decided to move elsewhere, but the fact that it was outside the control and without the consent of one of the parents, means it falls under the scope of exceptional circumstances. Another example is young persons who are adopted in the UK after they turn 18 years old, but where the adoption proceedings started while they were a minor. Under the BNA 1981, a child adopted in the UK will automatically become a British citizen if one of the adopters is British, but only while they are still a minor. This conflicts with adoption law which allows an adoption to take place beyond the age of 18, and the new s4L provides a route for such young people to benefit and register as British.
There is a new Form ARD for ‘special circumstances’ registration. Whether or not a fee is payable depends on whether the applicant would have acquired the status automatically but for the special circumstances (no fee is payable except the ceremony fee) or whether they would only have qualified for registration or naturalisation (in which case the full registration or naturalisation fee is due).
If you require advice in relation to the above, we would be happy to help. Please contact us on 020 7401 6887 or by email at firstname.lastname@example.org.