News and Updates

Registration for British citizenship as a Chagossian descendant

1st December 2022 By Imogen Simpson

During the 1960s and 70s, the UK government removed all inhabitants of the Chagos Islands from their land, creating what is known as the British Indian Ocean Territory (BIOT). This allowed the islands to become a US military base. The majority of Chagossians were removed to Mauritius and Seychelles.

In 2002, the UK government made the decision to grant British citizenship to all British Overseas Territories citizens, which included Chagossians. However, this applied only to those born on the Chagos Islands and their children. Citizenship was not extended to subsequent generations such as grandchildren or great-grandchildren.

The UK government has finally addressed this issue. The Nationality and Borders Act 2022 amends the British Nationality Act 1981 to create an entitlement for the direct descendants of Chagossians to be registered as British citizens and/or British Overseas Territories citizens (BOTC).

Applicants can apply for British citizenship and BOTC at the same time as part of one application and, if eligible, can obtain both forms of citizenship.

Requirements

The requirements for the application are relatively straightforward, at least in theory. Applicants will need to evidence that they are a direct descendant of someone born in the Chagos Islands. The Home Office published caseworker guidance on these citizenship applications in which they define ‘direct descendant’ as:

‘Direct descendants are the biological children and grandchildren of an ancestor. For example, you are a direct descendant of your mother, your grandmother, your greatgrandmother, and so on. This also applies to the paternal side and includes your father, your grandfather, your great grandfather and so on. Direct descendants do not refer to aunts, uncles, nieces, nephews, brothers, sisters, cousins, and so on.’

Evidence of direct descent will typically include birth certificates and birth records, but can also include:

medical or dental records;
marriage or civil partnership certificates;
change of name deed polls; and
factual records including court proceedings.

The Home Office has confirmed that the BIOT administration is in the process of digitalising the birth records it holds for those born on the Chagos Islands. This means that where an applicant does not have access to a copy of their ancestor’s birth certificate, the BIOT should be able to help with verifying the applicant’s Chagossian ancestry.

Applicants will also need to provide a form of ID, and two referees to verify their identity. There is no good character requirement for these applications.

You are not eligible to apply if you have ever previously been a BOTC or British Dependent Territories citizen.

Applications are open as of 23 November 2022. You can apply online here: Apply for British citizenship as a person of Chagossian descent – GOV.UK (www.gov.uk). There is no application fee.

The Home Office has set a time limit on these applications. Those who are already 18 or over will have five years from 23 November 2022 to apply. The deadline for those under the age of 18 as at 23 November 2022 is the person’s 23^rd birthday. Under the guidance those born between 23 November 2022 and 23 November 2027 may also be eligible to apply up to their 23^rd birthday.

While this does not fully rectify the situation, the introduction of this entitlement to register is good news for Chagossian descendants who have previously been excluded from becoming British citizens or BOTCs.

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 contact@gryklaw.com.

Landmark High Court Case on Transnational Marriage Abandonment

4th November 2022 By Andrew Jones

Migrants who are in the United Kingdom as the partner of a British citizen can apply for indefinite leave to remain if that relationship breaks down permanently because of domestic abuse.

However, if that migrant is outside of the United Kingdom, they cannot apply for indefinite leave. That is because the wording of the Rules makes clear that the application can only be made from inside the United Kingdom.

This becomes a particular problem for migrants (usually women) who are victims of transnational marriage abandonment. This is a phenomenon whereby an abusive partner deliberately removes their partner from the United Kingdom, often by deception, and then leaves them stranded abroad. Common features of transnational marriage abandonment include taking away the woman’s visa and travel documents and the abusive partner contacting the Home Office to declare that the relationship has ended so that the woman’s visa is curtailed. These women have no recourse under the Immigration Rules to return to the United Kingdom, whereas if they were still in the United Kingdom, they would be eligible for indefinite leave to remain. This is the case even though transnational marriage abandonment has been recognised in the Family Courts as a form of domestic violence.

Nath Gbikpi set out this issue in further detail in an earlier blog.

On 14 October 2022, the High Court found that by treating victims of domestic violence differently depending on whether or not they are in the United Kingdom, victims of transnational marriage abandonment are being unlawfully discriminated against. The Home Office will now have to introduce new Rules and guidance to ensure that victims of transnational marriage abandonment are treated the same as victim of domestic violence who are in the United Kingdom. This should mean that they will be able to apply for indefinite leave to enter.

In the meantime, however, many women will have been excluded from indefinite leave on the basis of this discriminatory treatment. Some may have returned to the United Kingdom on different visas. It remains to be seen whether the Home Office will allow them to apply for indefinite leave to remain, too.

Our Diana Baxter wrote a detailed analysis on this issue on Lexis Nexis.

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 contact@gryklaw.com.

Amendments to the requirements to naturalise as a British citizen

29th September 2022 By Rachael Ockenden

Two of the requirements to naturalise as a British citizen relate to the lawfulness of an applicant’s residence in the UK. Firstly, there is the requirement to complete five years’ lawful residence immediately preceding the application (or three years if you are married to a British citizen). The second requirement falls within the good character criteria which includes compliance with the immigration rules in the 10 years preceding the application.

The Nationality and Borders Act brought in amendments to these provisions on 28 June 2022 and the nationality guidance has recently been updated to reflect these changes.

Where an individual holds indefinite leave to remain in the UK (ILR), they can be treated as meeting the lawful residence requirement during the qualifying period, without further enquiry.

This is useful for many EEA nationals and their family members who may not have resided in the UK in accordance with the EEA Regulations, for example if they did not have Comprehensive Sickness Insurance, but were granted settled status under the EU Settlement Scheme.

The guidance also now states that breaches relating to illegal entry, absconding and overstaying may also be disregarded in the 10 year period, provided that they have been granted ILR and there are no concerns arising in relation to this.

The new, more generous provisions apply only to naturalisation applications submitted on or after 28 June 2022.

We understand that some clients who were previously advised against applying to naturalise may now be eligible under the new provisions. We would encourage anyone with any queries on these changes to contact us for advice.

Nationality by registration: special circumstances

16th September 2022 By Ilhaan Dirshe

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.

Exceptional circumstances

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.

Application process

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 contact@gryklaw.com.

What happened to the requirement to register with the police?

1st September 2022 By Nikhil Kabariya

In early August, a notice was published on the Metropolitan Police’s website stating that the Police Registration Scheme had come to an end. After some confusion about whether the scheme had been withdrawn, the Home Office confirmed on their website that it closed on 4 August 2022.

The Police Registration Scheme was in place for many years. It required nationals of over 40 countries, stateless persons, and those with non-national travel documents to register themselves with the police if they were aged 16 or over and granted more than six months’ limited leave to enter or remain in the UK under certain categories. There were some exemptions to the scheme. For instance, individuals with refugee status or leave as the partner of a person settled in the UK were not normally required to register.

Those with the condition imposed on their visa had to update the police with changes to their personal details, including their name, address, and visa details. Criticism about the usefulness of the scheme grew as efforts to introduce an online portal over the Covid pandemic did not appear to assist much with the efficiency of the service.

The Metropolitan Police has confirmed that there is no longer a need for people to comply with a requirement to register. This applies to individuals with the condition listed on their visa who have already registered with the police, meaning that they do not have to notify the police about changes to their personal details. Any new visas will not contain the condition. The police announcement explains that those who have been issued a visa containing the requirement but are yet to travel to the UK will be informed before travelling or have a new visa issued to them. It is unclear how this will happen in practice.

Although the law giving effect to the requirement to register has yet to be changed at the time of writing, the assumption is that it will not be enforced given that the Home Office and Metropolitan Police have confirmed the withdrawal of the scheme.

Nevertheless, certain changes must still be reported to the Home Office as requested for those with visas or biometric residence permits. See the government website for more information.

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 contact@gryklaw.com.