R (APD) v Secretary of State for the Home Department [2025] EWHC 246 (Admin) (07 February 2025)
The High Court (Aidan Eardley KC) dismissed these proceedings but held that the words "would have become" section 4L(1) of the British Nationality Act 1981 simply directed the decision-maker to consider what the position in the past would have been had the historic wrong or other relevant matter not occurred, and did not carry any implication that that position could not occur again in the future. The words "able to become a British citizen" in turn referred to the point at which a person satisfied the criteria for registration or naturalisation under some other provision of the 1981 Act. Thus, a person "would have been able to become, a British citizen" for the purposes of section 4L if, at some point before they made their section 4L application, they would have satisfied the criteria for registration but for a reason falling within section 4L(1). On that approach, section 4L was not limited to the situation of a person who had been definitively excluded from citizenship, in such a way that the matter could never be reopened even if a person's circumstances changed. It followed that the SSHD had misdirected herself in her decision. However, that misdirection did not require that the decision be quashed since the SSHD had, in the alternative, also addressed the "but for" question by reference to the correct position by which the ability to apply again in the future was no obstacle to registration via section 4L. The claimant "APD" and her husband were both Pakistani nationals.
The husband, who lived and worked in the UK, applied under the Immigration (European Economic Area) Regulations 2016 for permanent residence as a family member of a European Economic Area national, namely his son from a previous marriage who was a British citizen. The SSHD refused that application on the basis that, applying case law of the Court of Justice of the European Union on the right of free movement, the husband did not qualify for a derivative right of residence under the 2016 Regulations. The husband challenged that decision and, following a further judgment of the European court which made it clear that the 2016 Regulations were incompatible with European Union law, he was finally granted permanent residence. He subsequently applied for and was granted naturalisation under section 6(1) of the British Nationality Act 1981. Thereafter, the claimant was granted leave to re-enter the UK as the spouse of a British citizen. She subsequently applied to be registered as a British citizen, pursuant to section 4L of the 1981 Act, as someone who "would have been, or would have been able to become" a British citizen but for, inter alia, historical legislative unfairness or an act or omission of a public authority.
She asserted that she had been mainly residing in the UK since 2014 and that, but for the SSHD's misinterpretation and misapplication of EU law, she would have remained in or returned to the UK under conditions that would have enabled her to obtain ILR to remain and apply for naturalisation by either 2019 or early 2021.
The SSHD refused her application, stating that section 4L was about being prevented from applying, not about being prevented from applying earlier; and that, in any event, even if APD's husband had been granted permanent residency earlier, there were still so many steps that she would have needed to take, and so many further decisions that would have needed to be made, before she was in a position to become a British citizen herself that there was no causal effect or clear link between the SSHD's decision-making in the husband's case and APD's own lack of citizenship.
APD sought judicial review of the SSHD's decision as being irrational and procedural irregular. She challenged the decision-maker's interpretation of the words "would have been able to become, a British citizen".
Section 4L
Notably, section 4L provides that:
4L Acquisition by registration: special circumstances
(1) 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—
(a) historical legislative unfairness,
(b) an act or omission of a public authority, or
(c) exceptional circumstances relating to P.
(2) For the purposes of subsection (1)(a), "historical legislative unfairness"includes 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 (within the meaning of the Interpretation Act 1978) had, for the purposes of determining a person's nationality status—
(a) treated males and females equally,
(b) treated children of unmarried couples in the same way as children of married couples, or
(c) 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.
(3) In subsection (1)(b), "public authority" means any public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.
(4) In considering whether to grant an application under this section, the Secretary of State may take into account whether the applicant is of good character.
Judgment of Aidan Eardley KC
The court first addressed the meaning of the phrase would have been able to become and then addressed materiality, the "But for" issue and historical legislative unfairness. Aidan Eardley KC refused the application for judicial review. However he preferred the claimant APD's submissions to those advanced by the SSHD which he said were "to the contrary to be tortuous and unconvincing."
(i) Meaning of "would have been able to become"
The claimant averred that the requirement did not exclude applicants who, like her, might be in a position to become a British citizen in the future. Aidan Eardley KC said that the parties' cases were "starkly contrasting" as the SSHD contended that the requirement was only satisfied where the opportunity to become a British citizen had been definitively lost. Aidan Eardley KC's discussion and conclusions as to the meaning and effect of "would have been able to become" were as follows at paragraph 47:
47. As to the main dispute (whether, to satisfy the condition, a person who would have been able to become a citizen must have now definitively lost the opportunity to do so), I prefer the Claimant's submissions:
(1) First, I do not accept that, as a matter of ordinary language, "would have become" refers only to a situation that might have arisen in the past but cannot arise again in the future. It simply directs the decision maker to consider what the position in the past would have been. That is obvious and does not require any impermissible reading-in.
(2) Second, I agree with the Claimant that the Defendant's construction would commit decision makers to impossible speculation as to how an applicant's situation might change in the future and would render s4L useless for most applicants: there are likely to be relatively few situations in which it can be said that the door to citizenship is definitively shut and can never be re-opened even if a person's circumstances change. The fact that it is relatively easy to assess the Claimant's own future prospects of citizenship (she will likely be granted ILR in November 2025, having completed the 5-year "spouse route", putting her in a position to apply) should not obscure the great complications that would arise in many cases if the Defendant's analysis is correct.
(3) Third, assuming that Mr Tabori is right to submit that the examples of "historical legislative unfairness" given in s4L(2) would all have operated to deprive the applicant definitively of any opportunity to be or become a citizen, I do not accept that this informs the construction of "would have been able to become". They are expressly only examples, and they are only examples of one of the three categories of situation that an applicant can rely upon (see s4L1(a), (b) & (c)). I found Mr Tabori's ejusdem generisargument to the contrary to be tortuous and unconvincing.
(4) Fourth, the fact that some of the preceding sections are titled "person unable to become" etc does not assist the Defendant. On the contrary, it rather begs the question – if the Defendant's construction is correct – why s4L is not also titled "Person unable to become a citizen due to special circumstances".
(5) Fifth, I do not read the Explanatory Notes as supporting or undermining either parties' case.
(6) Sixth, the Defendant's own guidance for her decision makers is not a proper aid to construction as to what s4L actually means. (I would add that, in any event. many of the worked examples I was shown appeared to be directed to whether the decision maker should exercise the discretion under s4L in a case where the applicant has an opportunity to qualify via another route, not the question of whether the applicant is within s4L in the first place).
As to the meaning of to be able to become a British citizen, Aidan Eardley KC agreed with the SSHD that it referred to the point at which a person satisfies the criteria for registration or naturalisation under some other provision of the 1981 Act.
If Parliament had simply stated would have become a British citizen then, in a case where the SSHD is considering a notional route to citizenship under which registration was discretionary, it would require her to second guess how the notional decision maker on the former occasion would have exercised that discretion. That is obviously undesirable and unnecessary, since the SSHD has a discretion under section 4L in any event. The court did not see any warrant for treating "ability to become" a citizen as arising at any earlier point in the journey towards citizenship. Accordingly, a person would have been able to become, a British citizen for the purposes of section 4L if, at some point before they made their section 4L application, they would have satisfied the criteria for registration but for a reason falling within section 4L(1)(a), (b) or (c).
(ii) Materiality
The court said that although the SSHD had misdirected herself, she had also rejected the claim on the separate basis of "but for" causation. The two aspects of the decision were severable. Accordingly, the erroneous construction of "would have been able" did not infect that reasoning on the "but for" question. Aidan Eardley KC drew attention to the cases listed in Fordham, Judicial Review Handbook (7th edn) at 48.1.16.
(iii) "But for" question
The court made the following points on the issue of "but for" causation.
APD characterised the state of the Regulations prior to their amendment as "historical legislative unfairness" and relied on the unlawful refusal to grant her husband permanent residence in September 2017 as preventing her from taking the "spouse route" much earlier in her citizenship journey. The unlawful decision was an act or omission falling within section 4L(1)(b) and was a candidate for consideration as the "but for" cause of her inablity to become a British citizen prior to the date of her section 4L application.
The SSHD submitted that her decision to refuse the permanent residence application was not an act or omission of a "public authority" by reason of the proviso in section 4L(3). The SSHD was not a court or tribunal, and the fact that she made a decision that referred to the McCarthy judgment did not make her one. The purpose of the proviso was to avoid the constitutionally improper situation in which the SSHD might treat as wrongly decided a court decision that resulted in an applicant being unable to obtain citizenship. She could not do that: a wrongly decided court decision could only be reversed by way of appeal to a higher court. Aidan Eardley KC said that "but for" causation is a very well understood legal concept. Identifying the "but for" cause of a later event or situation was an exercise in prediction, not speculation and he held that:
59. … It is an exercise in prediction, not speculation. As the language of section 4L properly reflects, the question is what "would" have occurred if the putative causal event had not taken place, not what "might" have occurred. Where there is a long causal chain between the putative "but for" causal event and the eventual outcome, it may well be harder to say, with sufficient certainty, that event B would not have occurred, "but for" event A. That is particularly so when the hypothetical events one has to consider in the chain consist of the voluntary actions of human beings rather than purely physical events.
APD had not placed herself on the five-year "spouse route" until May 2020, even though she could have done so in July 2018 when her husband was granted permanent residence. The court found that the SSHD was entitled to find that, having regard to that unexplained delay, it was insufficiently clear that the claimant would have completed her five-year journey by 2023. Accordingly, her conclusion that the "but for" test was not satisfied was a rational one.
(iv) Historical legislative unfairness
As to the issue of historical legislative unfairness, the court held that despite the wording of the Immigration (EEA) Regulations 2016, it was open to the SSHD to disapply them or read them down when considering APD's husband's permanent residence application. Thus, whether or not the Regulations were unfair within the meaning of section 4L(1)(a), they could not have been a candidate for the but for cause of APD's inability to become a British citizen.
Comment
The background to section 4L was that the SSHD already had a power to register minors as British citizens by discretion under subsection(1) of section 3 of the 1981 Act. But no such power existed to grant citizenship by discretion to adults and so section 4L allows the SSHD to grant of British citizenship and/or British overseas territories citizenship to a person who does not meet the existing naturalisation or registration requirements and is intended to benefit those persons who would have qualified for automatic acquisition of citizenship or who would have met the naturalisation or registration requirements, were it not because of, for example, unintended consequences caused by historical legislation or the result of the act or omission of a public body.