Under UK immigration and nationality law, there are numerous routes under which individuals can apply for settlement and/or British citizenship, and which require an individual to evidence their or their parent’s residence in the UK from many decades ago. These include Settled Status applications (under the EU Settlement Scheme), as well as various routes for British passports and citizenship, all based on a person’s historic residence in the UK. The focus of this blog is on the latter, and will look at a new(ish) legal provision which may help those struggling to find evidence that they (or their parents) lived in the UK many tens of years ago…
British citizenship based on historic residence
Regardless of a person’s age, under section 1(4) of the British Nationality Act 1981, if you can prove that you: (1) were born in the UK; (2) lived the first ten years of your life here, and; (3) were not absent from the UK for 90 days in any 12-month period of those first ten years, you are entitled to register as a British citizen.
The Home Office have confirmed to us that this can include not only evidence of the child’s residence in the UK, but also that of the ‘wider family unit’ – i.e. evidence of the child’s parents’ residence, including evidence of their employment, national insurance contributions, etc.
The problem with these applications can be (and in the case of a few of my clients, has proven to be) – what if you, like me, were born as long ago as the early 1990s (!) and there is seemingly an absence of any evidence that you ever existed…
Absence of evidence
For many reasons, it is not always desirable or practical for someone in their 30s to hang on to paperwork relating to their infancy and primary school years, and even less so to keep hold of their parents’ employment, tax or property ownership records from that time.
In the absence of personal records, some organisations you might think to approach for records of a child’s (or their parents’) existence might include:
- Education: schools, education authorities, local authorities, universities, colleges;
- Health/ dental: local GP / NHS dental surgeries, local NHS trusts, Primary Care Support England;
- Immigration records: the Home Office…(!)
From experience, obtaining third party records of a person’s existence in these cases can feel like a wild goose chase. Reasons quoted by organisations for an absence of any records include: (1) moving from paper to electronic record keeping systems and losing records in the process; (2) simply not holding records from such a very long ago (including in the case of the Home Office, who have told us they only keep a person’s immigration entry/exit records for five years); (3) multiple changes of ownership of an institution (ex. in the case of some school or colleges) meaning records were lost in the process.
One thing to note about these applications is: you should provide all the evidence you can of residence. While the Home Office incorrectly insists only on accepting “official” documents (as listed in the Home Office Guidance for registration applications), strong affidavit evidence form family and friends, former teachers attesting to your residence in the UK can also be helpful. In the absence of any evidence listed in the Guidance, we have successfully argued that the Home Office should consider all information that meets the standard of proof in immigration applications – that is to say, that based on the documents provided, is it “more likely than not” that the person who was born here did in fact spend the first 10 years of their life in the UK. However, where the Home Office are sticking to their guns and insisting on official records and documents, the new section 4L can come in handy.
Act/ omission of a public authority
For all its controversy, the Nationality and Borders Act 2022 did bring about the enactment of at least one helpful legal provision – namely, the insertion of section 4L into the British Nationality Act 1981. Section 4L was introduced to correct wrongs that resulted from historic legislative unfairness, for example in cases where British mothers were prevented from passing on their citizenship to their children.
A less well-known part of section 4L relates to those who missed out on (or might have had difficulties in applying for) British citizenship due to an act or omission of a public authority. To paraphrase, section 4L provides that where a person applies for British citizenship and would have been, or would have been able to become a British citizen but for an act or omission of a public authority, they may be entitled to be registered as British citizens.
Section 6(3)(b) of the Human Rights Act 1998 defines ‘public authority’ as “any person certain of whose functions are of a public nature”. So, this would include all the authorities listed above.
Applications to register as British under section 4L are entirely discretionary in nature, which means that applications submitted under this provision have no guarantee of being approved. Nevertheless, for clients facing evidential / documentary challenges, it is an option worth exploring.
Home Office Guidance on section 4L makes it clear that this is not an alternative to meeting other statutory requirements, and that it is essential for applicants to be able to show causation – i.e. that the omission (of public authorities failing to retain records) has resulted in the applicant’s inability to become a British citizen, and that they can clearly show that this omission has directly prevented them from being able to become a British citizen.
Applicants will need to provide evidence of the act/ omission of the state – i.e. in the form of emails / attendance notes with public bodies in which they confirm they no longer hold the relevant records and why.
From a practical point of view, it might seem that applicants who (as a result of public authority omissions) do not have the ‘official’ evidence the Home Office requires in order to register, are first required to apply to register under section 1(4), to be refused and then re-apply on the basis of section 4L. Our view is that the Home Office should consider 4L before refusing any application and in fact pre-empt the refusal based on omissions by looking at the reasons why the evidence wasn’t available. This would be a sensible and pragmatic approach, which would clearly help to right the wrongs that have been caused by historical omissions at the hand of the State.