4L and double descent questions; American born 1993t
 

Hi everybody. I'm looking into whether I can obtain UK citizenship, but my fear is that I am not eligible. Background:

• Maternal Grandmother born in East Riding of Yorkshire, England in 1922. She served in the Royal Air Force and it's my understanding her active service ended at the conclusion of WWII.
• Maternal Grandfather: American (US Army Air Corps) with no UK lineage. My grandparents married in England in 1945 and immediately moved to the USA.
• Mother born in USA in 1956. She has lived her entire life in USA.
• Me born in USA in 1993. I've lived my entire life in the USA.

My mom does not currently hold British citizenship; however, she falls into the category of persons who, at birth, were unable to inherit citizenship from their British mothers due to historical gender discrimination. This has been remedied; she can now register as a British citizen. It's my understanding she can become a UK citizen under 4C (citizenship by descent) or 4L (citizenship otherwise than by descent). (This distinction may be important). This is good news for my mom. But I might not be as lucky.

Assuming my mom obtained British citizenship, I went through a couple of scenarios of how I could obtain citizenship afterwards, but I think in each instance I encounter roadblocks preventing it. First, because I was born in 1993, I missed the train, so to speak, on the double descent claims for those born before 1 January 1988 (see Example 14 from Home Office's "Registration as a British citizen in special circumstances" Version 5 [link below]). Second, because my mom did not live in the UK for three years preceding my birth or 18th birthday, I am also not eligible under 3(2) or 3(5) (see Example 18). Therefore, my situation is akin to Example 10 and I would lose out.

Does this sound right?

Assuming everything checks out, imagine this hypothetical. If my mom obtained UK citizenship through 4L, she would become a British citizen otherwise than by descent. That would mean that if she had children born outside of the US, they'd become UK citizens by descent per 2(1)(a). Since I am her child, the math should be simple: her status + my birth = my citizenship. However, Example 24 (in particular) suggests the answer is no. The Home Office argues that we must look at a hypothetical world where no discrimination existed. In that world, because my mom was born in the US, she would have been a citizen by descent, and therefore could only have passed citizenship to me if she met the 3-year residency requirement.

But, without British citizenship, she had no automatic right to live and settle in the UK. By insisting on a residency requirement that was impossible for my mother to fulfill (because she was legally barred from the very citizenship that would have allowed such residency) the Home Office seems to be requiring proof of a condition that the discriminatory regime itself made substantially more difficult to satisfy. Arguably, it's the same sort of impossibility struck down in Romein. In Romein, the Supreme Court rejected reliance on counterfactual assumptions where the discriminatory legal framework itself prevented the relevant act from occurring (namely, consular registration). Put differently, you can't fault the mother in Romein for not registering her child because it would have been impossible for her to do so. Likewise, without citizenship, how can a residency rule be equitably enforced?

For example, in Example 24, the Home Office seems to assume that Dwight’s son Claude cannot benefit unless Dwight would independently have satisfied the three-year residence requirement before Claude’s birth or 18th birthday. But how realistically could Dwight have established that residence if the original discrimination prevented him from possessing the citizenship status that would have facilitated settlement in the UK in the first place?

I see a similar issue with Example 10. The Home Office says it cannot assume Rachel’s mother would have moved to the UK had she possessed citizenship. Fair enough. But at the same time, it's not hard to see that Rachel’s mother could have encountered difficulty relocating to the UK to satisfy the residence requirement without already possessing British citizenship allowing her to do so freely. Put differently, if Rachel's mom didn't have the ability to move to the UK that citizenship would have allowed her, how could she?

Thoughts? Any insight is sincerely appreciated. Thank you.

Re: 4L and double descent questions; American born 1993t
 

Your understanding is pretty much spot on. Basically unless you are willing to go to court and try for some Romein type decision you are not likely to get anywhere with the Home Office. Other than the birth dates being about 10 years later, I am like your mom and you are like my daughter and I have spent a lot of time thinking about angles for her and not really come up with a great one.

I think the 4L angle is a dead end. Yes if your mother became a UK citizen via 4L her minor children could be registered and future children would be born British but that is more generous than what was granted historically so you'd have to make an argument that 4L itself is discriminatory. Also recently the Home Office has been assessing folks who qualify under other paths such as 4C under those paths even when they apply under 4L so if you mother applied under 4L today she'd likely get approved via 4C.

I do agree with you that there are similarities between the inability to register a child at the consulate and the inability to move to the UK. But you are probably going to have to speak to a solicitor on your odds on that one and I would expect it wouldn't be cheap to fight that fight. One counter argument the Home Office could make was that 4C registration was available as early 2003 however until 2010 it only applied to folks born after February 7, 1961 so your mother would not have been able to register under 4C until the law was changed in 2010 which given your birth date means there was really no chance for her to register under that and then get you the time you needed in the UK with her to become a citizen before your age of majority.

One angle that might work but I'll be the first to admit it isn't a great one would be to see if you qualify for Canadian citizenship. If you have any Canadian ancestors (no matter how far back) and can prove it then you can get Canadian citizenship which would then allow you qualify for an Ancestry Visa based on having a British grandparent (only for Commonwealth citizens however) which would allow you to live and work in the UK with a path to citizenship in about five years (as of now anyway). Some commonwealth countries also have citizenship by investment if you really, really want to live in the UK eventually.

Re: 4L and double descent questions; American born 1993t
 

As you were born after 1987, to be eligible for registration under Section 4L, you would need to demonstrate that your mother had tried to move to the UK before you were born - for instance, to attend university - but was prevented from doing so due to her lack of a British passport rather than a purely hypothetical situation in which she might have moved to the UK had it been easier for her to do so.

Re: 4L and double descent questions; American born 1993t
 

Thank you both for your input. It truly is much appreciated.

The change in the law in 2010 allowing 4C claims for those born before February 8, 1961 (like my mom) provides a fascinating wrinkle. When we examine the Home Office's own guidance, my situation differs in some material respects.

First, focusing on Example 10: Rachel’s mom was born in 1965. When Section 4C was introduced in 2003, Rachel’s mother immediately had a path to British citizenship and therefore the right of abode in the UK. Ignoring processing times, she theoretically could have moved to the UK between 2003 and 2011 and satisfied the three-year residency requirement before Rachel turned 18 in 2014. My mom didn't have the same opportunity. Unlike Rachel's mother, my mom was born in 1956. This means her pathway to citizenship didn't open up until 2010. Even if my mom freely moved to the UK immediately in 2010 (ignoring the processing time it would take to actually obtain citizenship), it'd have been temporally impossible for her to satisfy the three year residency requirement for me. Unlike Rachel, I turned 18 in 2011 before my mom could have lived three years in the UK. Second, the Home Office acknowledges Rachel is not without remedy. As a Canadian, she's eligible for an ancestry visa. I, as an American, do not have the same remedy.

Next, when examining Example 24, Claude is the third generation born outside of the UK. I'm the second generation. Therefore, my "double descent" situation is more akin to Dwight than Claude in this respect. Example 12 explains that Dwight’s father, born in the USA in 1950, could become British under Section 4C in 2010. That is similar to my mom’s situation. Dwight himself can benefit because the Romein decision disregarded the consular registration requirement under 5(1)(b). My issue is slightly different. Dwight needed to satisfy 5(1)(b), whereas I would need to satisfy 3(2). Romein may effectively waive the registration requirement, but it does not eliminate the separate three-year UK residence requirement in Section 3(2) that Dwight did not need. Because I was born in 1993 to a mother born in 1956, the delayed 2010 correction meant there was no realistic opportunity for that three-year residency requirement to be satisfied before I turned 18.

The Home Office could still say, well yes, that's all fine and dandy, but your mom still never lived in the UK for three years. She could have obtained a visa and moved at any time. And since she didn't, it was her personal choice not to. Also, you can't say she would have moved if had been a citizen earlier; that's too hypothetical. But I think there's distinctions. First, there's a distinction between a privilege to live in the UK (on a visa) and the right to live in the UK (with citizenship). A visa is a privilege; it is conditional, expensive, uncertain, and selective. The right of abode is a birthright. If my grandmother had been a man, my mother would have held an unfettered right of abode from birth. Instead, she needed a visa by 1990 to live in the UK. She would have needed a high-level corporate sponsor (Work Permit) or a massive capital investment (£200,000+ at the time). And, as an American, she was strictly excluded from the UK Ancestry Visa available to Commonwealth citizens (like Rachel). To claim she "chose" not to move is to ignore the fact that the UK had not allowed her of the legal right to freely do so (because of gender discrimination). It also ignores common sense. It's much easier to move to the UK and find work as a citizen than it is for non-citizens to be able to work on a visa. Citizens are in a better position. These different circumstances are directly traceable to the fact that my grandma was a woman, not a man.

Simply put, but for the gender discrimination faced by my grandma, my mom would have been a British citizen with a right to abode from birth. Because my grandma was a woman, my mom was treated as a "foreigner" until 2010, effectively freezing out my own claim. While my mom could have hypothetically lived in the UK, she did not have the automatic right to do so that she ought to have had. It meant, as a non-citizen, she'd need a visa, which inherently puts her at a disadvantage vis-a-vis a citizen. It would seem this is the type of disadvantage created by the discrimination that was meant to be fixed. But, since it wasn't fixed until 2010, the downstream consequence is that I'm iced out.

My situation would not open the floodgates to unlimited double descent claims because it would apply only to a narrow and identifiable cohort: applicants whose parent was born abroad before 8 February 1961 and therefore excluded from Section 4C relief until 2010. Most children of that cohort would already have been born before the accepted 1988 cutoff (like Dwight), meaning the affected class is inherently small and temporally limited. The argument is not for indefinite hereditary transmission of citizenship, but for recognition of a very specific statutory timing problem created by the delayed correction of historical gender discrimination.

Any thoughts here? I agree at some point I'd need to speak to a solicitor, but the feedback from you helps me determine if there's merit here, or if I'd be wasting my time and money. Thanks again.

PS, I'll also need to research my family history re Canadian citizenship. I'm not aware of any direct ancestors, but there may be one. I know my mom has cousins there, so that's a thread that needs to be pulled.

Re: 4L and double descent questions; American born 1993t
 

Some people would argue that the discrimination itself shaped their life choices from the outset, as they were less likely even to consider moving to the UK, applying for a visa, or attending university there, but I understand the law does not necessarily look at those broader psychological or societal effects.

Re: 4L and double descent questions; American born 1993t
 

Even if there is some sense in this, the law does not really seem to consider those kinds of indirect effects, and the difficulty is that, once you accept that discrimination directly or indirectly affected whether a parent moved to the UK, many other adult children, for example in triple descent cases, could make the same argument, so it does risk significantly broadening the scope of claims.

Re: 4L and double descent questions; American born 1993t
 

At some level you are right but the problem is the Home Office has taken the stance unless there is some provable attempt to move to the UK just the mere fact that your parent could have moved is not enough. So basically you would need to lawyer up and go to court and Romein went all the way to the Supreme Court so I doubt that was cheap and I have no idea what the odds are on a case like this. And as Mouk points out once you open this path you have in essence opened the flood gates of folks seeking British citizenship especially when you consider its imperial past. I think at one point in the 20th century 1/4 of the world population was under British rule many of the descendants these folks might have similar claims of what could have been possibly across four or more generations.

Re: 4L and double descent questions; American born 1993t
 

Hello again everyone. I’ve continued reading through a number of these threads and this seems like a cohort somewhat closer to our situation. One thing I found interesting in your timeline is that there was still a relatively short period before you turned 18 after the 2010 correction became available. Did anyone ever consider or discuss a discretionary section 3(1) application at the time, or was that simply not something that appeared operationally visible or recognised in practice then? I ask because I’ve been researching how children of later section 4C registrants were actually treated in practice during that period. I also wanted to ask something related to Hadrian’s comments regarding JR strategy. If a number of people from the same cohort eventually faced similar refusals, would there be any practical advantage in approaching the issue collectively rather than individually, at least in terms of visibility, shared legal costs, or strategic litigation? I’m curious whether anything like that has ever been attempted in nationality cases.

Re: 4L and double descent questions; American born 1993t
 

Ooops , One thing I also find interesting is that the broader legal landscape in this area still appears to be evolving. Romein was ultimately successful before the Supreme Court. Johnson was also accepted. APD, while unsuccessful overall, still appeared to receive at least partial judicial recognition on some of the underlying principles concerning historical unfairness and causation. There is now also a newly announced JR matter involving another historical nationality issue being pursued by Duncan Lewis Solicitors concerning an Indian single-nationality context, although I understand that hearing has not yet taken place. Taken together, it does not seem as though the courts view every historical nationality argument as automatically closed or straightforward, even if the boundaries remain uncertain.

Re: 4L and double descent questions; American born 1993t
 

Hello everyone, I am so glad I found this post because I am in a similar situation as both of you, with the same core problem.

@n00bpwnr when you made this post I literally thought myself or my daughter wrote it because we are going through the exact same problem and have been trying to find others in our shoes.

I am a 4L citizen; I do not have the 3-years of residency to pass on citizenship to my daughter (Born in 1997). I could not attain the 3 years of residency directly because of my failure to be recongized as a British citizen. (I’m an American and had no route to live in the UK). The discrimination/injustice is further perpetuated.
It feels like a legal impossibility for the government to require 3-years of residency that is literally impossible for us to attain to pass on citizenship to our kids. It doesn’t fully acknowledge the discrimination faced. There is clearly multiple people impacted by this.

The facts of my case might be better suited to fight the good fight given that the Home Office cannot say I had a period of 4C eligibility. I only became eligible for citizenship when they got rid of the consular registration requirement through Romein and made 4L in 2022. I do think n00bpwnr 's problem about her parent having been able to register for 4C causes a dispute from the home office where thankfully I don't have that dispute.
Trying to figure next steps. What avenues have any of you further explored? What are the ideas? MoonAndStar Hadrian34857 n00bpwnr MOUK