High Court considers new provisions for registration as a British citizen in special circumstances

On 7 February the High Court gave judgment in the case of R (oao) APD v Secretary of State for the Home Department [2025] EWHC 246 (Admin). This was the first judicial treatment of section 4L of the British Nationality Act 1981, which was inserted by the Nationality and Borders Act 2022 and which I have written about previously here and here. The Home Office guidance refers to these applications as ‘Registration as a British citizen in special circumstances’. How does APD develop the state of play in this type of application?

The law

Section 4L(1) of the 1981 Act provides that if P being of full age and capacity applies for registration:

…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—
(a) historical legislative unfairness,
(b) an act or omission of a public authority, or
(c) exceptional circumstances relating to P.

An application under section 4L is challengeable by way of a reconsideration request. If the outcome of the request is that the Home Office maintains the decision (or remakes it with the same result) then there is no statutory right of appeal, and in England and Wales the challenge is by way of judicial review to the Administrative Court within the High Court. Here, a decision of the High Court is a strong persuasive authority on subsequent High Court decisions. 

Section 4L clearly has discretionary elements (“…the Secretary of State may cause P to be registered if, in the Secretary of State’s opinion,…”). So judicial treatment is of interest for how it might define the available grounds of challenge to Home Office decision-making.

Background

APD involved a claim that, had it not been for a Home Office mistake, the applicant would become a British citizen by naturalisation. The claimant’s husband had applied for permanent residence under the EEA Regulations in April 2017. This was initially refused by the Home Office based upon their then-prevailing but incorrect interpretation of EEA law. 

Following the November 2017 CJEU judgment in Lounes (C-165/16) this mistake was corrected, with the husband being granted permanent residence under the EEA Regulations in July 2018, backdated to January 2016. The claimant made the section 4L application on 13 May 2023, arguing that she would have already applied for and been granted naturalisation as a British citizen, were it not for the earlier mistake in failing to grant her husband permanent residence.

The application was refused and a further refusal was issued following a request for reconsideration.

The judicial review

On the facts of APD, the special circumstances arose from the incorrect interpretation of EEA law, and not from any discriminatory legislation. This court agreed that this fell within subsection (1)(b) of section 4L as an act or omission by the Secretary of State [at 57]. Consequently, the ratio of APD does not concern subsection (2) (on what is included in “historical legislative unfairness”).

It is helpful to distinguish the counterfactual issue at stake, as expressed in section 4L:

[if] P would have been, or would have been able to become, a British citizen but for [special circumstances]

This is preceded by the qualifier, “in the Secretary of State’s opinion…”. The court held (paragraph 37) that this was: “…classic statutory language indicating that the Court should defer to the decision maker’s view and only interfere with it if it is irrational.”

On the facts of APD, the relevant counterfactual became whether the claimant would have entered the spouse visa route earlier than she in fact did, had her husband been correctly granted permanent residence under the EEA Regulations at the earlier date. The Home Office decision placed weight on the fact that the claimant had an unexplained delay in applying for a spouse visa two years later than she might have. 

This delay created a reasonable doubt as to whether the claimant really was keen to place herself on a route to settlement as soon as possible.  Given this doubt was Wednesbury reasonable, the court could not substitute its own judgment.

Another decision maker might well have placed much less weight on the unexplained delay that occurred once the “spouse route” opened up for the Claimant: there was, after all, a considerable body of evidence before the Defendant tending to show that the Claimant and her husband were keen to get settled and acquire citizenship as soon as possible. However, I am reviewing the decision for rationality, not correctness. In my judgement, the Defendant’s conclusion that the but-for test was not satisfied was a rational one. (paragraph 63)

This point is perhaps unappealing to claimants, but it is unsurprising given the wording of subsection (1). Of more interest however are the findings that the court was entitled to intervene, if the Secretary of State is considering the wrong counterfactual.

Questions about the correct interpretation of a statute are entirely matters for the Court: a public authority cannot defend their decision-making on the basis that they applied a reasonably arguable, but ultimately wrong, interpretation of a statute. If the public authority has applied the wrong interpretation then they have committed an error of law and the question then becomes whether the error is a material one, i.e. so significant that it vitiates the decision. [at 39]

In considering the issue at stake, if the Secretary of State has asked itself the wrong question, then there is an error of law, and the decision is potentially ultra vires.

In APD, she appeared in the first refusal decision to misdirect herself on what the ‘but for’ test in s4L(1) meant, for example stating that “the act or omission must have directly resulted in you missing out on being, or being able to become, a British citizen”. The court commented that “direct connection is not the test”. Rather, the question is one of “but for” causation: “… It is an exercise in prediction, not speculation.”

Furthermore, the court was prepared to rule in favour of the claimant that the issue at stake could, for example, be satisfied if she had been prevented (by a special circumstance such as a wrong interpretation of EEA law) from entering the spouse visa route earlier than she would in fact have done. Put another way, the argument (for registration under section 4L based on delay in naturalisation because of a misreading of EEA law) was ultimately valid, albeit unsound on the facts.

Implications for other cases

This suggests intriguing possibilities. There are a variety of circumstances in which a person might be able to demonstrate that they should have been granted (or recognised as having) permanent residence. And where they have been prevented from accessing permanent residence, inability to obtain British citizenship by naturalisation might naturally result. This might happen for because:

• their claim for asylum was wrongly refused;
• their application for settled status under the EU Settlement scheme was refused in error (whether because of an incorrect assessment of the evidence, procedural mistake, or a wrong interpretation of the relevant law); or
• their application for limited or indefinite permission ( / ‘leave’) was refused because of a caseworking error, or they were not recognised as having indefinite leave, when they in fact did;

and this list is by no means exhaustive.

In many cases where this has occurred, a naturalisation application now may be available as a remedy. And the guidance already directs that the Secretary of State exercise her discretion in various ways which may take account of historical special circumstances. To take the first example above, where it is recognised that a person’s asylum claim should originally have been granted, the naturalisation guidance to caseworkers already directs that their unlawful presence in the UK during the period of making their asylum claim may be waived.

In other cases, a naturalisation application may not be available. For example, it is an unwaivable requirement for a section 6(1) application that in the event the applicant is granted naturalisation, he intends to make his main home in the UK (or his principal home if more than one, or that he intends to continue in specified service).

If a person had already completed a period of residence in the UK, and had now emigrated, it would not be possible to grant naturalisation under section 6(1) as they would fail the intentions requirement. If at the relevant time they were married to, or in a civil partnership, with a British citizen (for example), there would be no intentions requirement; a section 6(2) naturalisation application can be granted even where the applicant has a definite intention to leave the UK. 

In such a case, if they could show that they would have made the naturalisation application, had their permanent residence status been granted or recognised, and it would have fallen to be granted, a claim for registration under section 4L could now be brought.