High Court dismisses section 4L challenge – Alex Finch writes for Free Movement

This article was first published in Free Movement, 6 October 2026

R (on the application of Akinyemi) v Secretary of State for the Home Department [2026] EWHC 2388 (Admin) is the second reported decision on the operation of section 4L of the British Nationality Act 1981, brought into force in 2022.

The claimant, who was born in the UK and has an extensive record of offending, challenged the refusal to register him as British on several grounds, but did not succeed on any of them. The court held that there is no variable approach to good character: it applies in the same way to both registration and naturalisation. It also confirmed that section 4L requires an applicant to show what would have happened ‘but for’ the special circumstances. The loss of a chance was not enough.

Background

The claimant was born in the UK in 1983 to parents who were not settled at the time. He has always lived in the UK. He has ‘twenty-four convictions involving some forty offences’, including for causing death by dangerous driving. He was previously the subject of two cases in the Court of Appeal following attempts to deport him which were ultimately unsuccessful on human rights grounds under Article 8 of the European Convention on Human Rights (see coverage here).

The claimant applied in 2023 for registration as a British citizen under sections 1(4) and 4L(1)(c) of the 1981 Act. Section 1(4) gives a lifetime entitlement to registration as a British citizen where the applicant was born in the UK and lived in the UK for the first ten years of his life. Section 4L(1)(c) provides that an applicant (‘P’) may be registered as a British 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 … exceptional circumstances relating to P.

The exceptional circumstances relied on by the claimant were that his parents were unaware of his entitlement to register as a British citizen, under either section 1(3) or 1(4) of the Act. He contended that had they known, they would have applied for him. In that event, he would have become a British citizen before he was ever convicted of an offence.

Interestingly, while the original refusal letter did not accept that parental lack of knowledge constituted ‘exceptional circumstances’ in this case (see paragraph 85), in her reconsideration letter the Home Secretary did not dispute this point, and the judgment does not re-open the issue.

Good character

There were several grounds of challenge, all of which were ultimately unsuccessful. Grounds 1 and 4 / 4B are of particular interest.

In ground 1, the claimant argued that the defendant had applied a unitary concept of good character. She had treated the issue of good character in the same way in this application, which concerned special circumstances, as in an application for naturalisation. Instead, where section 41A attaches a good character requirement to a registration provision, the defendant should have regard to the provision’s public purpose, so that it is not frustrated by the requirement.

In the case of section 1(4) in particular, this provision directly replaced jus soli (from 1983) by identifying a class of people who had a sufficient connection of belonging to the UK. This would imply that the Home Secretary might be required to apply a lower standard when assessing good character for registration than for naturalisation. There is a presumption that the same term in an Act carries the same meaning; that presumption was capable of being displaced as it was here.

The court rejected this approach entirely. There is ultimately one concept of good character in the 1981 Act, and it is the same across applications for registration and naturalisation (paragraph 49).

Had Parliament intended the criteria of good character to be a variable metric dependent on the nature of the nationality application being made it could have said so but did not…

The interpretation contended for… would also result in a less stringent test of good character applying to those applying for registration under s.1(4) on the basis of their birth in the United Kingdom. The logical consequence of this is that those applicants who “belong” (to use the Claimant’s term) are given greater latitude to engage in poor, unconscionable or offending behaviour by virtue of their having been born in the United Kingdom than those who have not.

This conclusion is relevant to applications under section 4L that rely on a missed opportunity to register, where that registration application would itself have been subject to a good character requirement. It does not displace the wider approach that followed from the Supreme Court decision in R (oao Johnson) v SSHD [2016] UKSC 56. Here it was held that the good character requirement is not applied to certain categories of application for registration.

This includes applications for registration as a British citizen under section 4C, and it also applies to applications under section 4L, where the person would have had an automatic claim. The latter would include, for example, where the person is claiming on the basis that they were born before 1983 in a foreign country and they were denied an opportunity of consular registration having had a grandparent born or naturalised in the UK.

The ‘but for’ test

In ground 4 / 4B, the issue in dispute was the requirement of a causal connection between the special circumstances relied on – in this case exceptional circumstances under section 4L(1)(c) – and the failure to become a British citizen.

This had already been addressed in R (APD) v SSHD [2025] EWHC 246 (Admin), the first reported case on section 4L, at paragraph 59:

“But for” causation is a very well understood legal concept. For event A to be the “but for” cause of event B it is not necessary that event A should be the immediate, proximate or “direct” cause of event B, or even the unique cause of event B. All that is required is that event B would not have occurred if event A had not occurred. It is very common to encounter situations in which event A is the “but for” cause of event B even though there may be a number of further events in the chain or causation that links A to B, or a number of other contributory causes… [however] the question is what “would” have occurred if the putative causal event had not taken place, not what “might” have occurred.

While in Akinyemi the court considered alternative formulations, it left the law on the ‘but for’ test where it already was. In APD the court had found that earlier formulations of Home Office guidance on the ‘but for’ test stated the law incorrectly. Version 3.0 of the Registration as a British Citizen in Special Circumstances guidance, published 4 June 2024, stated there had to be a ‘direct’ connection between the special circumstances and the fact that the person did not become, or was not able to become, a British citizen.

In fact, instructions that the special circumstances ‘directly’ prevented the acquisition appeared in all iterations of the guidance in force from 28 June 2022 (when section 4L was brought into force), up until the case of APD which explicitly disapproved that formulation, at paragraph 60:

The language used in the 25 January 2024 Decision suggests that, at that stage, the Defendant may well have been misdirecting herself about the “but for” test: it said, for example, that “the act or omission must have directly resulted in you missing out on being, or being able to become, a British citizen” whereas “direct” connection is not the test…

Following APD, version 5.0 of the guidance was published for Home Office staff on 7 May 2025 and contains no such test.

The claimant in Akinyemi sought to argue that the revision of the guidance was an acceptance that the earlier guidance misstated the law. He argued for an ambitious alternative interpretation, in which the claimant would qualify if he could show that there was a ‘real and substantial chance’ that his parents would have applied for his citizenship during his minority, had they known about his lack of status, and this chance was lost by their lack of knowledge. This was by analogy with a test applicable in professional negligence cases (paragraph 79).

The court rejected this. A ‘loss of a chance’ test was a useful legal principle in cases where damages were capable of being awarded in degrees. It was not useful in the context of citizenship, which can be either granted or refused, with no in-between case. The court reaffirmed that the simple ‘but for’ test in APD was the right one. As in APD, the fact that the decision had been based on a version of the guidance that wrongly required a ‘direct connection’, was not enough to impugn the decision; the Home Secretary was applying the correct test even if her policy guidance was faulty.

The error in the earlier guidance is therefore unlikely to prompt a flood of reconsideration applications. (The guidance now replaces the requirement for a ‘direct’ connection with a ‘clear’ one. This may be a distinction without a difference.)

Implications for other cases

In the end, then, the standard remains what ‘would’ have happened, not what ‘might’ have happened. Applicants under section 4L need to present compelling evidence to support their counterfactual histories. Where any actual opportunity to apply for a status existed, whether it was taken, and how quickly, will be critical.

In both APD and Akinyemi, the counterfactuals being entertained were amenable to being addressed with evidence. In APD: Would the applicant have obtained naturalisation earlier, had her husband not been wrongly denied permanent residence under pre-Lounes EEA law on the grounds that his sponsoring family member had been naturalised as a British citizen? This could be addressed with evidence of when the applicant chose to first apply for a spouse visa. (As it happened, there was an unexplained delay.)

In Akinyemi: Would the parents of the claimant have registered him as a British citizen, if they had known that jus soli had been ended? This could be addressed with a witness statement from the parents as to their state of knowledge. (Again, as it happened, the evidence was unclear on this point.)

Notably, neither of the reported cases on section 4L so far concerns the harder question of addressing, as in Romein, whether someone would have done something to acquire British citizenship had special circumstances not existed, in a situation where the special circumstances actually made that acquisition impossible. In the Romein litigation (The Advocate General for Scotland v Romein [2018] UKSC 6), in the decision below (Court of Session in Scotland), weight was attached to the fact that Romein’s mother had tried to register her as a UK citizen, despite that being impossible. Lord Sumption disapproved this formulation:

It is clear that Ms Romein’s mother not only attached a high value to her unborn child’s future nationality, but not realising the legal impediments, took some steps towards registering her. Someone who knew about the legal impediments would have done nothing and generated no evidence of this kind. Yet it is not obvious why that should make any difference. There is a conceptual problem about making the operation of section 4C dependent on an enquiry conducted years later into the question whether a parent would before 1983 have wished or intended or attempted to avail herself of a right which did not then exist.

The court was considering the case of a child born to a mother whose father was born in the UK, and where the mother wished to pass UK citizenship on to her child. It was wrong to require evidence that the mother had actually applied to register her child, since doing so was impossible. That factual scenario is now directly addressed by primary legislation, but there are many other scenarios which may arise under section 4L. Here are three:

1. A is a Canadian national. Before 1983, A was married to a Canadian-born man, B, whose mother was born in the UK (and whose father had no relevant UK connection). Had the law been fair, A would have had an opportunity of registering as a UK citizen through her marriage to B, by entitlement (under section 6(2) of the British Nationality Act 1948). Had she done so, she would be a British citizen today. Had A not realised the legal impediments, she might have generated evidence by making an application (which would have been refused). If she had realised, she would have made no application and generated no evidence.

2. C and D were married. D was born in the USA in the 1970s to a British-born mother. In 1995, C and D moved together to the UK, under a work permit, and lived there together until 1999 before emigrating again. Had the law been fair, D would have been a British citizen, and C could instead have been sponsored under a spouse visa, becoming eligible to be granted indefinite leave to remain in 1997 and granted naturalisation as a British citizen in 1998. Their impending emigration in 1999 would not have disqualified C, as there was no future intentions requirement.

3. E was born in the 1990s overseas to a mother, F, who was born in the US in the 1970s. F’s grandmother was born in the UK. When E was a small child, F had tried to move to the UK, but had been unable to obtain a visa. Had the law been fair, F would have moved to the UK, and it would have been straightforward to register E as a British citizen.

   
   

These and similar cases will continue to test the Home Office requirement for a ‘clear’ causal connection in the ‘but for’ test.

Alex Finch is a partner at Constantine Law.