A recent High Court decision to refuse a judicial review challenge serves as a clear reminder that discretionary registration applications turn on the strength of the evidence provided. The claimants, two stateless children born in Kenya, argued that the Home Office failed to properly consider their applications for registering as British. The court disagreed, finding that the issue was the lack of evidence provided in the applications; not in the assessment of that evidence.
The case also provides useful commentary on the section 55 Borders, Citizenship and Immigration Act 2009 duty regarding the welfare of children, including where further enquiries should be made and the extent to which section 55 is referenced in decisions. This is the case of AB & Anor, R (On the Application Of) v Secretary of State for the Home Department [2026] EWHC 1890 (Admin).
Background
The case concerns two children, AB and AC, aged 12 and 11 at the time of their initial application to be registered as British citizens in June 2023.
Both parents were British Overseas Citizens at the time of AB’s birth, and their father had recently registered British. The children were born in Kenya, but are stateless as Kenyan law did not permit them to obtain Kenyan citizenship as their father only held a Kenyan work permit. Their mother appears to have previously held indefinite leave to remain in the UK, but this most likely lapsed. AB’s paternal and maternal grandparents held UK citizenship or were citizens of the UK and Colonies (CUKCs).
AB had been awarded a scholarship to a UK boarding school. She had been granted a temporary travel document in Kenya which had enabled her to travel to the UK previously.
The Home Office refused the applications on 5 April 2024 on the basis that the children did not meet the criteria for registering as British citizens under the statelessness provisions of Schedule 2, paragraph 4 of the British Nationality Act 1981. It did not consider whether the children could be registered under section 3(1) of the 1981 Act; the discretionary route to registration. The applicants made reconsideration requests, but with minimal further evidence.
On 5 March 2025, the Home Office maintained the refusal. This time, it did consider the discretionary route by quoting the guidance on section 3(1) which sets out the factors to be taken into account:
- the child’s future intentions
- the child’s parents’ circumstances
- residence in the UK
- the child’s immigration status
- any compelling compassionate circumstances raised as part of the application
The decision letter concluded that AB’s future did not appear to lie in the UK as she had never lived there, her family were not there, and she had neither leave to remain nor settled status. It accepted that her father was now a British citizen but noted that her mother was not settled, so the usual expectation about a parent’s circumstances was not met.
The Home Office also considered whether to grant citizenship exceptionally, weighing the benefit to AB of becoming British now against the usual expectation that applicants take a staged approach: first obtaining leave to remain and settlement, before applying for citizenship. This staged approach exists to keep immigration policy fair and consistent, and the Home Office will only depart from it where there are compelling or compassionate reasons. It found none here, and concluded there was no reason why AB needed to become British now rather than apply for leave and then settlement.
Grounds for judicial review
The claimants brought judicial review proceedings, arguing that the decision breached the section 55 duty regarding the welfare of children and that the decision-maker failed to take into account relevant information, such as AB’s scholarship. They also claimed that the Home Office had breached the Tameside duty by failing to seek further information and that the decision breached the claimants’ Article 8 rights. Finally, the decision failed to give reasons and was irrational.
Was there a breach of the section 55 duty?
The leading case on the section 55 duty is CAO v Secretary of State for the Home Department [2024] UKSC 32, which confirms that children should be consulted and their wishes and feelings taken into account wherever practicable, but making these enquiries is not an invariable requirement.
Applying the findings from CAO that compliance with the section 55 duty is a matter of substance, not form, the judge found that the substance of the duty had been complied with. Although the reference to the duty in the decision was brief, and did not make reference to the section 55 guidance directly, this did not make the decision unlawful.
Did the decision fail to consider relevant matters, or was it irrational?
The judge found that AB’s scholarship had been considered, and referenced paragraph 23 of Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, which notes that decision-makers are not required to address every piece of evidence expressly.
Additionally, he found that it could not have been irrational for the decision-maker to find that the child’s future did not lie in the UK, as it was never expressly submitted that the children did indeed intend to settle there. The decision-maker was not obliged to make further enquiries regarding the children’s future intentions, and interpreted the Registration as British citizen: children guidance as follows:
‘It is true that the Child Registration Guidance says that “Where you have reason to doubt a child’s future lies in the UK you must seek further clarification” but it seems to me that this part of the guidance is addressed to a situation in which it has been asserted or implied that the child’s future does lie in the UK. As I have explained, no such assertion or implication was made on the Claimants’ behalf in the materials that were before the decision-maker.’
Evidence, evidence, evidence
A recurring theme throughout the judgment was the limited information and evidence supplied with the application and in the further submissions. The representations did not expressly state that the children wished to settle in the UK, and the arguments regarding AB’s challenges in registering at school and obtaining a certificate of acceptance for studies were not specific. Further information came to light after the decision that AC had a disability, but no supporting evidence, such as professional evidence, had been presented to show he needed treatment and education in the UK.
The judge confirmed that he could not take into account information or evidence that was not available to the decision-maker before the March 2025 decision. He highlighted that the contrast between the initial evidence and the evidence now available was ‘noteworthy’.
The lack of initial evidence was a key shortfall in this application. The final paragraph of the judgment leaves it open to the children to make a further discretionary application under section 3(1), noting that the fact that the children are suffering difficulties because of their statelessness combined with the strength of the latest evidence is far more compelling than that presented to the Home Office at the outset.
Conclusion
By far the biggest takeaway from this decision is that evidence is critical to any discretionary registration application. While section 3(1) of the 1981 Act confers a discretion, this is somewhat limited by normal expectations set out in the guidance. Where those expectations cannot be met, evidence of compelling or compassionate circumstances is crucial. The decision-maker in this case could not be criticised for failing to consider evidence that was not available to them at that time.
Practitioners should take full instructions from a client at the outset and provide detailed statements with discretionary registration applications addressing a client’s intentions, since a decision that a child’s future does not lie in the UK will be difficult to challenge as irrational if nothing was said to the contrary.
Finally, a best interests assessment is not unlawful simply because it is brief, or does not reference the section 55 guidance. Nor is it mandatory for children to be consulted, especially where there is no reason to suspect their views may differ from those put forward by parents or representatives.
