Good character, registration and section 4L: the High Court's decision in R (Akinyemi) v SSHD [2026] EWHC 2388 (Admin)

by Rao Manzoor-ul-Haque Khan

By Rao Manzoor-ul-Haque Khan, LL.M. (Glasgow) — Principal Solicitor & Managing Director, Morgan Hill Solicitors

Introduction

On 21 September 2026, Mr Justice MacDonald handed down judgment in R (Akinyemi) v Secretary of State for the Home Department [2026] EWHC 2388 (Admin). Following R (APD) v SSHD [2025] EWHC 246 (Admin), it is one of the first High Court decisions to examine section 4L of the British Nationality Act 1981 ("the 1981 Act"), the discretionary "special circumstances" registration route introduced by the Nationality and Borders Act 2022.

The claimant was born in the UK, has lived here all his life and has a substantial criminal record. He argued that, because he had a statutory entitlement to register as British, the Home Office should have applied a lighter good character test to him. The court rejected that argument and dismissed the claim, despite identifying an error of law in the section 4L decision.

Background

Mr Akinyemi was born in the UK in June 1983, a few months after the 1981 Act ended automatic citizenship by birth on UK soil. His parents were granted indefinite leave to remain in 1987. From that point he was entitled to be registered as British as a child under section 1(3), and from his tenth birthday under section 1(4). At that time there was no good character requirement for these routes.

No application was made. His case was that his parents assumed he was already British because he had been born here. The good character requirement was extended to registration on 4 December 2006 (now section 41A of the 1981 Act), when he was 23.

By then he had begun offending. He has 24 convictions covering around 40 offences, including causing death by dangerous driving in 2007 (four years' imprisonment) and supplying Class A drugs. His last conviction, in 2021, related to an offence committed in 2018. The Home Office's attempt to deport him failed on Article 8 grounds after two visits to the Court of Appeal, and he was granted discretionary leave in 2022.

In March 2023 he applied to register under section 1(4), or alternatively under section 4L(1)(c) on the basis that exceptional circumstances — his family's mistaken belief that he was British — had prevented him from registering before the good character requirement arrived. The Home Office refused, and maintained that refusal on reconsideration in October 2024.

The legal framework

  • Section 1(4) entitles a person born in the UK who has not been absent for more than 90 days in each of their first ten years to register as British, on application after age ten. The Home Secretary has a discretion under section 1(7) to disregard absences above that limit.
  • Section 41A provides that registration under section 1(4) and most other registration routes must not be granted unless the Home Secretary is satisfied the applicant is of good character.
  • Section 4L gives the Home Secretary a discretion to register an adult who would have been, or would have been able to become, British "but for" historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances relating to them. Under section 4L(4), good character may be taken into account.

Section 4L also works differently from the mandatory section 41A requirement in practice. Under the current Home Office guidance, where the route the applicant missed (such as registration or naturalisation) itself required good character, character is assessed as at the date of the section 4L decision. Where the applicant would otherwise have become British automatically, they should not normally be refused on character grounds.

What the court decided

1. An entitlement to registration does not lower the good character threshold

The central argument was that the word "entitled" in section 1(4) reflects a person's belonging to the UK by birth, so good character should operate narrowly for such applicants and the Home Office should have to identify clear reasons before refusing.

The court disagreed. Relying on the Supreme Court's decision in the fees case, R (Project for the Registration of Children as British Citizens) v SSHD [2022] UKSC 3, it held that the section 1(4) entitlement is not a fundamental or constitutional right: it is a statutory route that is subject to the conditions Parliament attached to it, including good character. Section 41A is a single, mandatory provision applying across the registration routes specified in that provision, and nothing in the 1981 Act supports a sliding scale depending on the type of application ([48]–[49]). The judge also observed that the claimant's approach would give people born in the UK more latitude for offending than other applicants, and would effectively reverse the burden of proof, which remains on the applicant ([49]–[50]).

The court was also satisfied that the Home Office had carried out a genuine, holistic assessment rather than a mechanical one. The decision letter weighed positive factors — including the Upper Tribunal's finding that he had made a deliberate effort to change, his community work and mental health support — against the seriousness and persistence of his offending, including continued driving offences after the fatal collision ([51]–[53]).

2. The challenge to the good character guidance failed

The claimant attacked the guidance's statement that people with significant custodial sentences will "normally" be refused. Applying the test in R (A) v SSHD [2021] UKSC 37, the court held that the guidance, read as a whole, does not authorise unlawful decision-making: it expressly requires caseworkers to consider all aspects of character and any countervailing evidence ([60]–[63]).

3. The reasons were adequate

The decision did not have to analyse every item of mitigation, such as bereavement, epilepsy and mental health, separately. It was clear what had been decided and why ([71]–[72]).

4. Section 4L: the "but for" test — and an error of law

This is the most practically significant part of the judgment.

No "loss of chance". The claimant argued that he only had to show a real and substantial chance that his parents would have registered him had they known his status. The court refused to import this private law negligence concept. Section 4L asks what would have happened, so the applicant must show on the balance of probabilities that, but for the relevant circumstances, they would have been, or would have been able to become, British ([87]–[88]).

"Directly" is not the test. The Home Office's decision repeatedly said the exceptional circumstances must have directly prevented the claimant from becoming British. The court held that this imported a stricter remoteness test than Parliament enacted and was an error of law. Section 4L requires a causal link; it does not distinguish between direct and indirect causes, although circumstances that are too remote will not suffice ([89]–[94]). The Home Office has already removed the "directly" wording from its special circumstances guidance (version 4.0, May 2025).

The error did not justify relief on the evidence. The claim still failed because the court found it highly likely that the outcome would not have been substantially different. The evidence was thin: there was no statement from his father about what the family would have done, no evidence of when the claimant learned of his status, and a letter from his father suggested he had known in 1983 that the law had changed yet made no application until 2014. The Home Office is not required to fill gaps in an applicant's evidence with assumptions ([96]–[98]).

Exceptionality was assumed, not decided. The judge proceeded on the assumption, without deciding the point, that the family's mistaken belief amounted to exceptional circumstances under section 4L(1)(c) ([95]). The judgment therefore does not establish that a parent's misunderstanding about a child's nationality will satisfy that limb.

5. Article 8

Article 8 does not guarantee a right to a particular nationality. The good character provisions are set out clearly in primary legislation, with procedural safeguards, and are not arbitrary. Refusing citizenship also does not mean removal: the claimant has other routes to secure his status and maintain his family life in the UK ([106]–[109]).

What this means in practice

  • Act early for children, using the right route. Good character applies to registration applicants aged ten or over, and section 1(4) only becomes available at ten, so it cannot be used to avoid that scrutiny. Where a child qualifies under another route, such as section 1(3), an application before their tenth birthday is not subject to the requirement. Parents of UK-born children should check their child's status early.
  • An entitlement does not lower the good character threshold. Section 1(4) applicants should present full character evidence. For applicants aged 10 to 17, the evidence should also address their age, any mitigation relevant to their circumstances, and their best interests, which the Home Office must consider.
  • Section 4L applications depend on evidence. A well-prepared application will cover the points listed below.
  • Review earlier section 4L refusals with care. A refusal that required the circumstances to have "directly" prevented registration may have applied the wrong test. The question is whether the decision, read as a whole, actually imposed a direct-causation threshold, not simply whether the word appears. Even then, relief may be refused where the outcome would highly likely have been the same, as happened in Akinyemi.
  • Watch the time limits. Judicial review must be brought promptly and in any event within three months of when the grounds first arose. Pre-action correspondence does not extend that period, and a reconsideration request should not be assumed to restart it.

A well-prepared section 4L application will:

  • identify the precise citizenship provision missed and the date the applicant first became eligible;
  • explain the historical unfairness, public authority act or omission, or exceptional circumstances separately from causation;
  • include statements on what the family knew, when they knew it, and what they would have done;
  • explain any contradictory documents and any delay after the nationality position was discovered;
  • explain how rehabilitation and medical evidence bears on the applicant's character today.

How we can help

Morgan Hill Solicitors advises on all aspects of British nationality, including registration under section 1(4) and section 4L, good character refusals, reconsideration requests and judicial review. If you or a family member has been refused citizenship, or you are unsure whether you or your child is already British, please contact our immigration team at any of our offices.

Further reading

This article is for general information only and does not constitute legal advice. It reflects the law as at 6 October 2026.

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