News and updates | Wesley Gryk Solicitors LLP

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.

Joint Parliamentary briefing on Afghanistan August 2022

19th August 2022 By Caroline Asken

The Immigration Law Practitioner’s Association (ILPA), along with multiple other organisations including Human Rights Watch, Scottish Refugee Council have issued a parliamentary briefing on Afghanistan, one year on from the Taliban taking control of the country following the withdrawal of US and allied forces.

The briefing addresses human rights abuses committed by the Taliban and outlines the problems associated with the Afghan Relocations an Assistance Policy (ARAP) and the so-called Afghanistan Citizens Resettlement Scheme (ACRS) and makes recommendations for the government.

UK Relocation and Resettlement Schemes

The UK Government evacuated around 18,000 people, including more that 6,000 British nationals, to the UK during Operation Pitting following the Taliban’s takeover.

The UK Government set up two schemes for the relocation and resettlement of Afghan nationals and certain family members.

The ARAP scheme launched on 1 April 2021 to relocate former military interpreters and other staff. The briefing comments that the scheme remains not properly functioning, being marred by ongoing substantive and procedural problems. As of 27 July 2022, around 10,100 eligible individuals and their families have been relocated to the UK under ARAP. It states that thousands of Afghans remain at real risk because of their work with the UK mission in Afghanistan and they have yet to be relocated to the UK. The briefing refers to reports of a backlog of 23,000 applications since October 2021, with only one in four applications having been processed and many applicants not having received a decision a year on. The briefing comments that many Afghans still remain excluded from the ARAP scheme due to the heightening of risk thresholds to levels unduly restrictive, in December 2021.

The ACRS was announced in August 2021 and formally opened in January 2022 and committed to resettle more than 5,000 people in the first year and up to 20,000 over the coming years. Afghans already in the country following Operation Pitting were moved into ACRS and counted towards its places. The briefing comments that this decision reduces the number of places available in the scheme and emphasised that the UK commitment to 20,000 is significantly less than other countries, such as Canada, that has doubled its commitment to resettling 40,000. It confirms there have been no further updates on how many individuals have been resettled or relocated under the three pathways outlined in the scheme.

Recommendations

The recommendations in the briefing include:

expediting all ARAP applications, providing applicants with clear timelines and urgently relocating eligible Afghans; and
expanding the ARAP scheme to ensure that all Afghans who worked alongside, in partnership with or closely supporting the UK Government, who currently fall outside the narrow categories of the scheme, are eligible for relocation, emphasising that it should not be unduly restrictive; and
increasing the number of ACRS places beyond 20,000 by at least the amount of those who arrived in the UK under Operation Pitting and were counted under pathway one of the ACRS scheme (approximately 6,500, including British nationals and their family members); and
ensure the schemes are adequately resourced and managed to allow decisions to be made in a timely manner; and
ensure the same approach for all refugees, regardless of origin, and establish an Afghan family reunion scheme, on parallel terms to the Ukraine Family Scheme.

The full briefing can be found here: Parliamentary Briefing on Afghanistan

50+ Years A Gay Man: A Personal Life in A Historical Context – an essay by Wesley Gryk

7th July 2022 By Barry O’Leary

For Pride month, the US Presidential Scholars Foundation & Alumni Association project ‘Scholar Perspectives on Societal Change: Sexuality, Gender, and Identity’ published an essay by our founder, Wesley Gryk. In that essay, Wesley recounts his very personal experience of being a gay man during more than half a century of what have been unprecedented historical positive changes in societal attitudes in some parts of the world. He cautions that the impact of such changes may often depend on the personal circumstances of the individual concerned and, in particular, warns against complacency, given that large swathes of the globe remain unaffected by such progress and, further, that such progress which has been achieved could easily be erased.

Read the essay here:

Wesley Gryk 2022 — Presidential Scholars Foundation

Home Office introduces two new private life routes to ILR

23rd June 2022 By Andrew Jones

On 20 June 2022, a large number of changes were made to the Immigration Rules. Included in those changes is the introduction of two new routes to indefinite leave to remain (‘ILR’) on the basis of private life, which benefit children and young adults in the UK.

ILR for a child born in the United Kingdom

A child who was born in the UK may now apply for indefinite leave to remain where:

The child was born in the UK and can provide a full UK birth certificate.
The child has lived in the UK continuously since their birth and for at least seven years at the date of application.
It would not be reasonable to expect the applicant to leave the UK.

This rule closely mirrors provisions in the previous private life rules which allowed a child to apply for limited leave to remain in the UK if they have lived here for at least seven years and it would not be reasonable to expect them to leave the country. This ‘seven years rule’ also allowed the parents of such a child to make an application under the Parent route.

However, in light of these changes, the child can now apply for ILR at that stage if they were born in the UK.

Unfortunately, if the child was not born in the UK, then they will need to apply for limited leave to remain in the same way as before.

ILR for young adults in the United Kingdom

As we have covered in a previous blog in November 2021, the Home Office announced a concession to the private life rules to allow young adults aged between 18 and 25 years old who had spent more than half of their lives in the United Kingdom to apply for ILR after just five years.

The Home Office has now incorporated this concession into the Immigration Rules. Therefore, an applicant would be eligible for ILR where:

They were last granted leave to remain on the basis of their private life as a child or on the basis that they are aged between 18 and 25 years old and have spent more than half of their lives in the UK.
They have spent five years in the UK with leave to remain on the basis of private life, family life or outside of the Rules under Article 8. In limited circumstances, it can include time spent in the UK with different visas, so long as they had leave to remain on the basis of private life for at least one year before they apply.

This represents a far quicker route to ILR for young adults who, previously, had to wait 10 years until they were eligible.

If you would like more information or advice on how this may affect you or your children, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.