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The Nationality and Borders Act 2022

Nationality and Borders Act 2022: Discretionary Adult Registration and Naturalisation Requirements

The Nationality and Borders Act received Royal Assent on 28 April 2022. The Act has attracted a great deal of media attention for its reforms in a number of areas, including asylum, immigration enforcement, age assessment and modern slavery. However, the Act has also introduced a number of citizenship reforms. This article will focus particularly on the provisions introduced to permit discretionary adult registration and the amendments to the requirements for naturalisation currently contained in the British Nationality Act 1981.

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Discretionary Adult Registration

Section 3 of the British Nationality Act provides for discretionary registration of children. However, there has not previously been a provision which allows for discretionary registration for adults. This is no longer the case, thanks to Section 8 of the 2022 Act. This section, entitled ‘Registration in Special Cases’, inserts section 4L into the British Nationality Act 1981.

This section grants the Secretary of State discretion to register an adult as a British citizen if they think they would have been able to become a citizen previously were it not for historical legislative unfairness, an act or omission of a public authority, or any exceptional circumstances relating to the applicant. 

The scope of this discretion therefore differs from the discretion afforded to the Secretary of State in respect of children under Section 3(1) of the British Nationality Act 1981. Whilst the provisions for children allow a minor to be registered if the Secretary of State ‘thinks fit’, allowing a very wide range of factors to be taken into account, the provisions in Section 4L appear to have been drafted with a specific focus on historical injustice, looking at whether someone would previously have been able to become a British citizen were it not for a specific set of circumstances in their past. 

Historical legislative unfairness

The 2022 Act provides examples of circumstances which may be considered to constitute ‘historical legislative unfairness’. This includes circumstances where an applicant 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 any subordinate legislation had treated someone differently for the purposes of determining a person’s nationality status. Specific examples are given of the ways in which the legislation may have treated someone differently. These include if males and females had been treated equally, if children of unmarried couples had been treated in the same way as children of married couples, or if children of couples where the mother was married to someone other than the natural father were treated in the same way as children of couples where the mother was married to the natural father. 

This is not an exhaustive list, and there is certainly scope for debate in the future about what might constitute ‘historical legislative unfairness’. 

An act or omission of a public authority and exceptional circumstances

The Act does not expand on this provision, save to define a ‘public authority’ as any public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal. This provision has prompted discussion of the potentially positive implications for children in local authority care in circumstances where the local authority responsible for a child may not have made the necessary application for them to register as a British citizen whilst they were a child. Section 4L leaves scope for such applications to be made once the child is an adult, avoiding the potential injustice faced by individuals when such provisions did not exist for adults.

There are a great number of other examples that one could imagine would fall under this category, and an even greater number which one could imagine would fail under the third category provided by the Act, of ‘exceptional circumstances’. It is likely that, as has been the case with the discretionary provisions introduced for the registration of children in Section 3(1) of the 1981 Act, the scope of the discretion will be defined largely by the guidance published by the Secretary of State for her caseworkers.  However, this is with the caveat that those exceptional circumstances will need to have, in the view of the Secretary of State, previously prevented the applicant from becoming a British citizen. This section also contains a provision relating to good character, as is currently the case in discretionary applications for children who are over the age of 10. The Nationality and Borders Act 2022

Amendments to the Requirements for Naturalisation

Section 9 of the 2022 Act introduces a number of amendments to the requirements for naturalisation. One of the most notable is an amendment to the requirement that a person is physically present in the UK at the beginning of the qualifying period. There is additionally an amendment which allows the Secretary of State to treat a person who has indefinite leave to enter or remain as meeting certain residence requirements in relation to an application for naturalisation without making any further enquiries as to the lawfulness of their previous residence. 

Presence at the beginning of the qualifying period

Schedule 1 of the Nationality and Borders Act amends the British Nationality Act 1981 and introduces the power to waive the requirement that the Applicant be in the UK at the beginning of the qualifying period of residence. 

This seems intended to address a potential injustice for individuals who were able to apply to return to the UK under the Windrush scheme, who had previously been wrongfully prevented from re-entering the UK. This injustice has already been addressed by the High Court.  In R (Vanriel & Anor) v Secretary of State for the Home Department [2021] EWHC 3415 (Admin) it was concluded that it was in fact already possible to read and interpret Schedule 1 of the British Nationality Act as if it contained discretion to disregard the requirement to be present in the UK on the day 5 years before the date of application. The High Court held that the 1981 Act could already be read in a way to allow discretion to be exercised in cases where the failure to meet the requirement was the fault of the Secretary of State and it was necessary for it to be read in this way to avoid an infringement of an applicant’s rights under Section 6 of the Human Rights Act 1998. 

It was noted in that case that such a reading did not compel any particular outcome to an individual’s citizenship application, but was a recognition that the Secretary of State had discretion.  At that time, the draft amendment was already underway in the Nationality and Borders Bill, and it is likely that this amendment has been pursued despite the ruling for clarity. However, even with the express inclusion of this provision, decisions will still require an exercise of discretion, and as with the discretionary registration amendment above, how this discretion will be exercised will be likely only to become clear from future guidance issued by the Secretary of State. 

Lawful residence 

The British Nationality Act 1981 also already allowed the Secretary of State to exercise discretion in treating the applicant as fulfilling the requirement not to have been in breach of immigration laws in the period of five years ending at the date of application if she thought fit in the special circumstances of any particular case. Schedule 1 of the 2022 Act expands this discretion, stating that where an applicant has indefinite leave to enter or remain in the United Kingdom, the Secretary of State may treat the applicant as though they meet the requirement of having been  in the UK lawfully for the five years prior to the date of application without enquiring as to whether or not the applicant was in fact in the United Kingdom lawfully in that period. 

This provision may assist those who are unable to document their lawful residence in the five years prior to the application, but were granted indefinite leave to remain nonetheless. There are likely to be certain categories of application in which the Secretary of State will not, as a matter of policy, make enquiries in respect of lawful residence in the five year period prior to the date of application, and will instead rely only on the grant of indefinite leave to remain. However, once more, the circumstances in which the discretion will be exercised will be likely to be defined in the Secretary of State’s guidance for her caseworkers. It is worth noting that the ‘good character’ requirement, which can take into account the lawfulness of an applicant’s previous residence, would still apply. 

When Will These Provisions Come Into Force?

The Nationality and Borders Act 2022 (Commencement No.1, Transitional and Saving Provisions) Regulations 2022 confirms that Sections 8 and 9 of the 2022 Act will come into force on 28 June 2022. 

Conclusion

Although these amendments are notable, it is clear that the significance and practical implications of the amendments outlined in this article will depend largely on how the Secretary of State’s caseworkers are directed to exercise their discretion in the policy guidance. 

The reforms addressed in this article are selected from a number of citizenship reforms in the 2022 Act. These additional reforms, and the content of the Secretary of State’s future published guidance, will be addressed in future articles. 

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