On 14 October 2022 the Home Office released a second iteration of their caseworker guidance for handling applications to register as a British citizen in special circumstances (section 4L, inserted by the Nationality Act Borders Act 2022).

The caseworking scenarios from the first version are now supplemented by fresh examples, responding to enquiries from practitioners. Although these examples are short, the range and complexity of the issues is vast. Below, I have covered only some of the main categories of ancestral claims to British citizenship based on historical legislative unfairness, and have not attempted to deal with Windrush-based claims, claims connected with action (or inaction) of public authorities and claims based on exceptional circumstances.

The new guidance confirms a significant extension of British nationality law, trailed as Example C from this earlier July 2022 article. In Romein [2018] UKSC 6, the Supreme Court held that, in an application for registration under s4C of the British Nationality Act 1981:

“…it is not possible to apply the registration condition in section 5(1)(b) of the 1948 Act to those claiming on that basis, because its application would make nonsense of that assumption. The past is done, and cannot be undone…”

In Romein the court made a finding in relation to section 5(1)(b) of the British Nationality Act 1948. The 2018 ruling meant in effect that where an applicant was born in the period 1949 to 1982, in a foreign country (meaning, roughly, a non-Commonwealth country) and their maternal grandfather was born in the UK, then the applicant could succeed in an application to register under section 4C.

There are several restrictions to an application for registration under section 4C using the Romein principle, but these are in effect removed by the latest iteration of the guidance.

UK-born grandmother

First, and most importantly, Example 12 now indicates that the Romein principle will be applied to those with a UK-born grandmother. The applicant must still have been born in a foreign country in the relevant time period (before 1988 – see below) (Section 4C only permitted counterfactual variation of the gender of the applicant’s mother, so did not allow transmission from a UK-born grandmother).

In this context and going forward, if an ancestor was naturalised or registered in the UK, this would have the same effect as if they were born in the UK. So too if they were born on a British ship (I am yet to come across that in practice though). There is a restriction if the father of the UK-born ancestor was a foreign diplomat at the time. Finally, if an ancestor was born in a place that from 21 May 2002 was a British overseas territory as listed in Schedule 6 of the 1981 Act (Cayman, Bermuda, Turks and Caicos, Gibraltar, British Virgin Islands, etc) this will be as advantageous as birth in the UK.

Birth outside of marriage

Second, a section 4C application using Romein could only work if the applicant’s mother was herself a citizen of the UK and colonies at the time of birth of the applicant. This could fail to be the case if her claim to British nationality was through her father, and her parents (i.e. the maternal grandparents of the applicant) were not married at the time of the mother’s birth. Section 4L(2)(b) and (c) of the new legislation specifically lists as examples of historical legislative unfairness cases in which illegitimate children were treated less favourably for the purposes of determining their nationality status. While this is not covered in the casework examples, it is highly probable that ancestral claims can now be formulated based on descent from parents who were not married to one another, subject to the applicant still discharging their burden of proof.

Transitional period until 1988

Third, it is a requirement for an application under section 4C that the applicant was born before 1983.  There was a transitional period during the first 5 years of operation of the 1981 Act, from 1 January 1983 to 31 December 1987, which in effect extended the operation of section 5(1)(b) of the 1948 Act.  During this period, a full registration application (as opposed to consular birth registration) continued to be possible under section 9 of the 1981 Act, in similar circumstances to those in section 5(1)(b) of the 1948 Act, and this section contained similar gender discrimination.  Example 14 considers this case, and confirms that registration under section 4L “might… be reasonable”.

In this case, the applicant would have become a British citizen upon their registration under the 1981 Act (rather than by operation of law on 1 January 1983), and therefore an application under section 4L will attract the full adult registration fee (currently £1,126), whereas only the £80 ceremony fee will be payable for those applying under this rule born before 1983. Section 9 of the 1981 Act did not contain a good character requirement (an application had to be made within 12 months of the person’s birth).

Births before 1949

Fourth, Romein considered (paragraph 14) but did not decide upon, the position of those with UK-born grandparents born before 1949. A person born outside of HM Dominions and Allegiance in the period before 1 January 1949 (and whose grandmother or maternal grandfather was born in the UK) would have a corresponding argument that they were prejudiced, because of gender discrimination in the operation of section 1(1)(b)(v) the British Nationality and Status of Aliens Act 1914 (as inserted by the 1922 Act of the same name). HM Dominions referred broadly to any British territory (the British empire); Example 17 considers the case of a person, Ingrid, born in 1939 in Sweden, with a UK-born grandmother, and states that she could be registered under section 4L “if such consular registration would have meant that she went on to become a British citizen”. Ingrid in this case would indeed have become a citizen of the UK and colonies in 1949 under section 12(4) of the 1948 Act (the ‘residual’ class within the transitional provisions), and would have gone on to acquire right of abode under section 2 the Immigration Act 1971 as originally enacted, so a claim in this case could be made out.

Grandmother born in the UK, relevant parent lived in the UK for at least 3 years, applicant born 1983 onwards

Another commonly arising scenario will be where the applicant’s grandmother was born in the UK, and the relevant parent (the child of that grandmother) lived in the UK for at least 3 years before the applicant’s birth, or the applicant and both their parents lived in the UK for at least 3 years together. In these cases, an opportunity of registration under section 3(2) or section 3(5) of the 1981 Act could have been missed, and this would be attributable to gender discrimination. This would most commonly occur where the parent resided in the UK under an immigration permission or entitlement, such as a work permit, ancestry visa or free movement right (although lawful presence is not a requirement).  The guidance confirms in Example 18 that registration “might be appropriate” provided the relevant parent did in fact accrue 3 years’ residence in the UK.

In such cases, an opportunity to register as a British citizen would have been missed, and so the full adult application fee would now be payable. The Home Office guidance prescribes that a good character test should apply, but in practice refusing an application in reliance on this point might be problematic for the Home Office; the good character test would not have applied until the child’s 10^th birthday, and the prejudice might have arisen before this date.

Conclusion

There are still many scenarios in which an ancestral claim to British citizenship relying on historical legislative unfairness might be made, and it is unlikely this is the final version of the guidance.

I am grateful to Bruce Mennell at Aora for conversations about these and other cases.