APD, R (on the application of) v Secretary of State for the Home Department

Section 4L of the British Nationality Act 1981 can apply where an applicant would have been able to become a British citizen earlier, even though the opportunity remains open when the application is made. The phrase requires the applicant to have satisfied, or hypothetically to have satisfied, the criteria for registration or naturalisation but for a specified special circumstance. The “but for” test does not require immediate, direct or unique causation. It asks whether the later outcome would have occurred without the identified event, assessed with sufficient confidence rather than speculation. A decision-maker may consider the applicant’s actual conduct when assessing what would have happened in the counterfactual scenario. An error of statutory interpretation does not require quashing where the decision-maker separately reached a rational and severable conclusion on causation.

The claimant sought judicial review of the refusal of her application under section 4L of the British Nationality Act 1981. She argued that an earlier refusal of her husband’s permanent-residence application, arising from an incompatible interpretation of EU law, had delayed her access to the spouse route, settlement and naturalisation.

The August 2024 decision stated both that the earlier decision was withdrawn and that it had been reviewed and correctly refused. The issues were the meaning of “would have been able to become” a British citizen, the materiality of any statutory misdirection, the application of the “but for” test, and procedural irregularity.

1. The claim was dismissed. The August 2024 decision contained an error of law in its interpretation of section 4L, but that error was immaterial because the decision separately and severably rejected the claimant’s causation case.
2. “Would have been able to become” does not require the opportunity to acquire citizenship to have been definitively lost. It directs attention to what the applicant’s position would have been before the section 4L application. The provision may therefore assist a person whose route to citizenship was delayed but remains available. The phrase refers to the point at which the person would have satisfied the criteria for registration or naturalisation under another provision of the 1981 Act.
3. The September 2017 refusal of the husband’s permanent-residence application was an act or omission of a public authority within section 4L(1)(b). It was incompatible with Article 21 TFEU because the Immigration (EEA) Regulations 2016 should have been read down or disapplied. Lounes v SSHD established what EU law had always required. The court-or-tribunal exclusion in section 4L(3) did not apply merely because the administrative decision referred to McCarthy v United Kingdom.
4. “But for” causation does not require an immediate, proximate, direct or unique cause. It requires that the later event would not have occurred without the identified event. Where the chain includes voluntary human actions, the decision-maker must reach a sufficiently confident prediction, not speculate about what might have happened.
5. The Secretary of State rationally concluded that the claimant had not shown that she would have entered and completed the five-year spouse route, obtained indefinite leave to remain and become eligible for naturalisation by 2023. Her unexplained delay after the route became available was a rational factor. The alternative Tier 1 case did not require separate determination because it was insufficiently developed.
6. The August 2024 decision was properly treated as a fresh operative decision replacing the January decision. Its wording was unhappy but not procedurally irregular. A further reconsideration opportunity was not required.