Section 4L of the British Nationality Act 1981, ('The 1981 Act'), is a route to British citizenship for adults who would have been able to obtain citizenship, was it not for one or more of three reasons. This route aims to offer a pathway to citizenship for those who were affected by historical legislative unfairness. This was introduced by the Nationality and Borders Act 2022 which contains other measures to deal with historical unfairness, some of which are explained in our post: Nationality and Borders Act 2022: Discretionary Adult Registration and Naturalisation Requirements.
Section 4L sets out the requirements for registration:
If an application is made for a person of full age and capacity ("P") to be registered as a British citizen, the Secretary of State may cause P to be registered as such a citizen if, in the Secretary of State's opinion, P would have been, or would have been able to become, a British citizen but for—
- historical legislative unfairness,
- an act or omission of a public authority, or
- exceptional circumstances relating to P.
As such, one or more of these reasons must have directly prevented the applicant from becoming, or being able to become, a British citizen.
Assessment as to British Citizenship
The decision maker will consider whether an applicant would have, or would have been able to become, bar the reason(s) set out, either:
- A British citizen automatically – this can be by birth, descent or adoption, or
- Qualified for registration or naturalisation as a British citizen.
Historical Legislative Unfairness
The 1981 Act states at section 4L(2) that historical legislative unfairness includes but is not limited to circumstances where P would have become, or would not have ceased to be, a British subject, a citizen of the United Kingdom and Colonies or a British citizen, if an Act of Parliament or subordinate legislation had:
- treated males and females equally,
- treated children of unmarried couples in the same way as children of married couples, or
- treated children of couples where the mother was married to someone other than the natural father in the same way as children of couples where the mother was married to the natural father.
The above are therefore examples of what might be considered legislative unfairness. For background information regarding the history of nationality law in the UK, the Home Office has produced guidance here.
The Home Office guidance on 'Registration as a British citizen in special circumstances' suggests that this would also be the case for inequality of treatment due to a protected characteristic. There must be a direct link between the unfairness in the law and the individual's inability to obtain citizenship.
The guidance makes clear that where individuals did not become a British citizen due to a legislative change, they will typically not be successful under this provision. This is because Parliament will have made a conscious decision about nationality law changes, despite the consequences of such being seemingly unfair. It further notes that it is Parliament's intention that citizenship will normally only be passed on for one generation born overseas and the provisions of the 1981 Act are not intended to change that. Nevertheless, each application should be considered on its own merits.
It is worth considering if an applicant's circumstances fit more squarely under the other provisions of the 1981 Act, including those for children of British parents in section 4C and 4F to 4I of the 1981 Act or provisions for children of unmarried parents.
An Act or Omission of a Public Authority
The 1981 Act defines a public authority as any public authority within the meaning of section 6 of the Human Rights Act 1998. This is a court, tribunal or any person whose functions are of a public nature, including government departments and local authorities. It does not include either House of Parliament, MPs or members of the House of lords.
As with the other factors, the individual must clearly show how an act or omission directly prevented them from being, or being able to become, a British citizen.
Exceptional Circumstances
The 1981 Act does not define exceptional circumstances; however, examples of what might constitute exceptional circumstances are contained within the guidance document. This document further explains that section 4L is not intended to be used as a mechanism for cases where an individual does not meet the requirements for other routes.
It further explains that where an individual's circumstances might be exceptional or compelling, it needs to be demonstrated that it was those circumstances that directly prevented them from becoming a British citizen.
Other Considerations: Good Character Requirement
The relevant guidance states the decision maker may take into account whether an applicant is of good character.
If the individual would have been able to acquire citizenship through registration or naturalisation but for one of the above reasons, under a provision that had a good character requirement, then their good character must be considered.
These provisions are:
- naturalisation under section 6(1) or 6(2)
- registration under one of the following sections:
- 1(3) – child born in the UK whose parent became a British citizen or became settled in the United Kingdom while the child was a minor
- 1(3A) – child born in the UK whose parent becomes a member of the armed forces while the child is a minor
- 1(4) – a person (of any age) who was born in the UK and lived there for the first 10 years of their life
- 3(1) – discretionary registration of a child under 18
- 3(2) – a child born outside the UK to a British citizen by descent parent, and that parent has lived in the UK for 3 years before the birth
- 3(5) – a child born outside the UK to a British citizen by descent parent, and the child and both parents have lived in the UK for 3 years
- 4(2) – registration based on 5 years residence
- 4(5) – registration based on Crown service.
- 4A – registration of a British overseas territories citizen
- 4D – children born outside the UK to members of the armed forces
- 5 – British overseas territories citizens with a connection to Gibraltar
- 10(1) or 10(2) – registration following renunciation of citizenship of UK and Colonies
- 13(1) or 13(3) – registration following renunciation of British citizenship
- registration under section 4F, if the registration was on the basis that the person could have qualified under section 1(3), 3(2) or 3(5), had their parents been married
If the individual would have acquired citizenship automatically, but for the above reasons, the decision maker will not ask them to provide evidence that they are of good character. The guidance further provides that an individual who missed out on an automatic claim to citizenship will not normally be refused on character grounds.
Further information on good character can be found in this blog post.
When Might This Apply?
Several examples are given of when it might be appropriate to grant an application under section 4L. No exhaustive list is provided and as such each case should be considered on its own merits.
Some of these examples are summarised below:
Historical legislative unfairness:
- Those with British grandmothers in Crown Service;
- Those born in the UK to foreign diplomats;
- Those born to a mother in a civil partnership with a British citizen before 2009;
Act or Omission of a Public Authority:
- Those prevented from qualifying for citizenship due to a Home Office act or omission – although, note the separate Windrush Scheme if applicable.
- Those who were in local authority care who would have been eligible to register but the local authority did not do so;
Exceptional Circumstances:
- Those adopted by British citizens in the UK after turning 18.
What Type of Citizenship Does a Grant Under 4L Give?
If an individual is registered under section 4L, they will become a British citizen otherwise than by descent. They will be able to pass on their citizenship to a child born outside of the UK.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.