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An absence of proof – nationality purposes primarily based on historic residence | Immigration Legislation Weblog | Kingsley Napley


Beneath UK immigration and nationality regulation, there are quite a few routes below which people can apply for settlement and/or British citizenship, and which require a person to proof their or their mum or dad’s residence within the UK from many a long time in the past. These embrace Settled Standing purposes (below the EU Settlement Scheme), in addition to numerous routes for British passports and citizenship, all primarily based on an individual’s historic residence within the UK. The main focus of this weblog is on the latter, and can have a look at a brand new(ish) authorized provision which can assist these struggling to seek out proof that they (or their mother and father) lived within the UK many tens of years in the past…  

British citizenship primarily based on historic residence

No matter an individual’s age, below part 1(4) of the British Nationality Act 1981, when you can show that you just: (1) have been born within the UK; (2) lived the primary ten years of your life right here, and; (3) weren’t absent from the UK for 90 days in any 12-month interval of these first ten years, you’re entitled to register as a British citizen.  

The Residence Workplace have confirmed to us that this could embrace not solely proof of the kid’s residence within the UK, but in addition that of the ‘wider household unit’ – i.e. proof of the kid’s mother and father’ residence, together with proof of their employment, nationwide insurance coverage contributions, and so on.

The issue with these purposes will be (and within the case of some of my shoppers, has confirmed to be) – what when you, like me, have been born as way back because the early Nineties (!) and there may be seemingly an absence of any proof that you just ever existed…

Absence of proof

For a lot of causes, it isn’t at all times fascinating or sensible for somebody of their 30s to hold on to paperwork referring to their infancy and first college years, and even much less so to maintain maintain of their mother and father’ employment, tax or property possession information from that point.  

Within the absence of non-public information, some organisations you may suppose to method for information of a kid’s (or their mother and father’) existence may embrace:

  • Training: faculties, training authorities, native authorities, universities, faculties;  
  • Well being/ dental: native GP / NHS dental surgical procedures, native NHS trusts, Major Care Help England;
  • Immigration information: the Residence Workplace…(!)

From expertise, acquiring third occasion information of an individual’s existence in these instances can really feel like a wild goose chase. Causes quoted by organisations for an absence of any information embrace: (1) transferring from paper to digital file holding methods and dropping information within the course of; (2) merely not holding information from such a really way back (together with within the case of the Residence Workplace, who’ve advised us they solely maintain an individual’s immigration entry/exit information for 5 years); (3) a number of adjustments of possession of an establishment (ex. within the case of some college or faculties) that means information have been misplaced within the course of.  

One factor to notice about these purposes is: you need to present all of the proof you possibly can of residence. Whereas the Residence Workplace incorrectly insists solely on accepting “official” paperwork (as listed within the Residence Workplace Steerage for registration purposes), sturdy affidavit proof type household and pals, former academics testifying to your residence within the UK can be useful. Within the absence of any proof listed within the Steerage, now we have efficiently argued that the Residence Workplace ought to take into account all data that meets the usual of proof in immigration purposes – that’s to say, that primarily based on the paperwork offered, is it “extra doubtless than not” that the one that was born right here did actually spend the primary 10 years of their life within the UK. Nevertheless, the place the Residence Workplace are sticking to their weapons and insisting on official information and paperwork, the brand new part 4L can come in useful. 

Act/ omission of a public authority

For all its controversy, the Nationality and Borders Act 2022 did deliver concerning the enactment of at the least one useful authorized provision – specifically, the insertion of part 4L into the British Nationality Act 1981.  Part 4L was launched to right wrongs that resulted from historic legislative unfairness, for instance in instances the place British moms have been prevented from passing on their citizenship to their kids. 

A much less well-known a part of part 4L pertains to those that missed out on (or might need had difficulties in making use of for) British citizenship as a consequence of an act or omission of a public authority.  To paraphrase, part 4L offers that the place an individual applies for British citizenship and would have been, or would have been capable of grow to be a British citizen however for an act or omission of a public authority, they could be entitled to be registered as British residents. 

Part 6(3)(b) of the Human Rights Act 1998 defines ‘public authority’ as “any particular person sure of whose features are of a public nature”.  So, this would come with all of the authorities listed above.

Functions to register as British below part 4L are fully discretionary in nature, which signifies that purposes submitted below this provision haven’t any assure of being accredited.  However, for shoppers going through evidential / documentary challenges, it’s an choice value exploring.

Residence Workplace Steerage on part 4L makes it clear that this isn’t an alternative choice to assembly different statutory necessities, and that it’s important for candidates to have the ability to present causation – i.e. that the omission (of public authorities failing to retain information) has resulted within the applicant’s incapacity to grow to be a British citizen, and that they will clearly present that this omission has immediately prevented them from with the ability to grow to be a British citizen.

Candidates might want to present proof of the act/ omission of the state – i.e. within the type of emails / attendance notes with public our bodies during which they verify they not maintain the related information and why. 

From a sensible standpoint, it might sound that candidates who (on account of public authority omissions) shouldn’t have the ‘official’ proof the Residence Workplace requires as a way to register, are first required to use to register below part 1(4), to be refused after which re-apply on the idea of part 4L. Our view is that the Residence Workplace ought to take into account 4L earlier than refusing any software and actually pre-empt the refusal primarily based on omissions by trying on the explanation why the proof wasn’t accessible. This might be a wise and pragmatic method, which might clearly assist to proper the wrongs which have been brought on by historic omissions on the hand of the State.

Additional data

You probably have any questions concerning this weblog, please contact Josephine Burnett in our Immigration group.

 

In regards to the creator

Josephine is an affiliate within the personal shopper immigration group, the place she advises excessive web value people on a spread of UK immigration issues. She joined the group in November 2019, after finishing her coaching contract at Kingsley Napley.

 

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