Dual nationality question

[philgeorge999]

Hi.
I have a quick question... does anyone know the *authoritative* answer...? ie. what actually happens in practice?

A friend of mine is a Malaysian national, and he is about to apply to naturalise as British...

Malaysia does not allow dual natioanlity and in theory he will 'lose' his Malaysian citizenship at some stage.

Does anyone know at which stage the Malaysian government will actually hear about his British naturalisation? Does the Home Office tell them? Or is it his responsibility to tell the Malaysian embassy? What happens if he applies to become British but is rejected? Will Malaysia make him stateless just for trying?

Thanks
Phil

[John]

Working backwards through your questions, I think you will find that merely applying for another Citizenship will have no effect whatsoever on the existing one. So if the application for British Citizenship happens to be rejected, well the Malaysian Citizenship will still be held.

The British authorities will tend to take no action to inform any other Government of any Citizenship it grants. After all, many countries allow dual citizenship, so it is not an issue. My wife is a citizen of both Thailand and Britain .... no problem whatsoever ... both countries allow dual nationality to be held.

So guess it is down to the successful applicant for British Citizenship to tell the other Government if they have the need to do so. No one else will do so.

[ppron747]

I think John's analysis is correct. AIUI, unlike some countries (eg Kenya) loss of Malaysian citizenship isn't automatic, on acquisition of another citizenship. A deprivation order would need to be made in order for Phil's friend to lose Malaysian citizenship.

But he will need to be careful in the future, and I would suggest that he continues to use his Malaysian passport from time to time, for visits to third countries, so that he has some stamps in it when the time comes for renewal. There are few things more indicative of dual nationality than producing a completely "virgin" passport while claiming that it is the only one you have...

paul

[Kayalami]

A friend of mine is a Malaysian national, and he is about to apply to naturalise as British...

Malaysia does not recognise dual nationality and as such this would be lost. AFAIK the order refered to by the prior poster is purely administrative i.e. it confirms the loss as opposed to finalising it. To use an anology you are British upon completion of a citizenship ceremony (naturalisation procedure) not when you obtain a British Passport.

As such (IMHO) lack of said order should not be relied on to 'use a Malay Passport' that you are obviously not entitled to for travel. This constitutes fraud contrary to both Malaysian and International law. Exceptions to loss of Malay citizenship are enshrined in the Constitution though which may be applicable in this case.

1. Is said naturalisation application on the basis of marriage to a British spouse?

2. Is your friend male or female?

3. How did he/she acquire Malaysian citizenship?

4. How old is he/she?

[ppron747]

Sorry to be controversial when it is only my second post, but I do not think you are right.

Article 24(1) of the Constitution of Malaysia says

If the Federal Government is satisfied that any citizen has acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country outside the Federation, the Federal Government may by order deprive that person of his citizenship.

It therefore seems clear that Malaysian citizenship is not lost by a dual national until the order to deprive has been issued - and that the deprivation order isn't a purely administrative, confirmatory act.

Phil's friend would therefore remain a citizen of Malaysia unless/until a deprivation order has been issued, and I cannot see why he would be "obviously not entitled to" a Malaysian passport. Concealing the possession of another citizenship may well be a breach of Malaysian law - one that is happily perpetrated by many people - but he wouldn't be a "foreigner" passing himself off as a Malaysian. He would still be a Malaysian carrying a passport correctly describing him as a Malaysian. I cannot see how this could be in breach of international law.

paul

[penanglad]

You do not break Malaysian law simply by having another citizenship. The only consequences of acquiring another citizenship are that specified in the Constitution, i.e. an order of deprival of citizenship.

Normally the procedure is that a 'show cause' letter is sent to the person asking why he should not be deprived of his citizenship for having acquired a second citizenship. Following this a deprivation order is made. Sometimes the government agrees not to issue a deprivation order if the foreign citizenship has been surrendered.

If you do not have immigration stamps in your Malaysian passport for the country you are living in, that is a clue that you have acquired that country's citizenship. Similarly if you have let your Malaysian passport expire for some time. In such cases the Malaysian High Commission will generally ask you to produce a letter from the Home Office confirming your immigration status and that you have not acquired citizenship. However, if you renew your passport back home in Malaysia before it expires, it is less likely that you will be caught.

[Kayalami]

Sorry to be controversial when it is only my second post, but I do not think you are right.

No worries. I welcome your comments and if applicable stand corrected on the basis that no one is authoritative on all matters.

Article 24(1) of the Constitution of Malaysia says Quote:
If the Federal Government is satisfied that any citizen has acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country outside the Federation, the Federal Government may by order deprive that person of his citizenship.

Were I to be the op’s legal advisor I would need to review further definitive case law to rule out conclusively that depravation is pursuant solely to the order.

Article 27(1) of the Constitution of Malaysia confirms comment by penanglad:

Before making an order under Article 24, 25 or 26, the Federal Government shall give to the person against whom the order is proposed to be made notice in writing informing him of the ground on which the order is proposed to be made and of his right to have the case referred to a committee of inquiry under this Article.

I fail to see how the constitution here should/would tie the executive's hands for an undefined period of time pending the order - it may be that operational matters as higlighted below make an automatic revokation needless. Hence why my prior post has the caveat IMHO. I repeat that second-guessing the relevant official at a port of entry on aspects of dual nationality without definitive clarity is a risk I would not personally take. I’m somewhat influenced by the one experience I know of where a colleague during a business trip to Singapore (entry using Malaysian ppt) went home (Malaysia) briefly to visit family prior to return to the UK on a British passport. Immigration Officer at KLIA saw no UK stamps on the Malaysian ppt and enquired as to UK status there. Upon finding he was also British the IO impounded his Malaysian ppt immediately. Rather than face a possible lengthy judicial process (as a Malaysian he could not rely on British consular protection) he didn’t chase this up but travelled to the UK. I recall that he eventually renounced his Malaysian citizenship.

I am also aware from friends that applications and/or renewals for Malaysian passports at diplomatic posts overseas can take up to 12 months. Granted this was for their North American (US and Canada) posts but I would expect this to be federal policy as opposed to post practice. I understand this time period allows various checks to be made to include those on the matter of citizenship. In any case overseas registration requirements (to cover those going home to ‘conveniently’ renew passports) and status letters (e.g. from Home Office confirming no British Citizenship is held) makes this issue difficult to conceal.

Likewise my comments as to breaching applicable laws is purely on the basis of fraud/ misrepresentation in using national travel documents pursuant to the matter of depravation being inconclusive.

Ultimately it is up to the op’s friend to make a decision. Hopefully he/she is in a better position to do such based on our comments.

[penanglad]

Of course Malaysian passports can be withdrawn at any time by the Government. I have heard of a case where a student was asked to show the immigration officer his NZ passport. His Malaysian passport was then cut up by the immigration officer there and then!

Deprival is a more complicated matter. Like most things in Malaysia, the government has wide discretion, so in some cases they can be persuaded not to issue a deprivation order if the foreign citizenship has been surrendered. It is obviously subject to judicial review. There was a recent case where the Malaysian citizenship of a man (do a Google search for "Lee Thean Hock") who had once held a BOC passport was ordered to be restored. Apparently the government issued him a Malaysian passport after he surrendered the BOC passport, so there may have been estoppel, although newspaper reports say that federal counsel accepted that a BOC passport "was not akin to a British passport" for the purposes of the Constitution. It is a very confusing case.

Renewal is always best done at home - the high commission in London issues them in about 3 days, so it is not as bad as the North American posts, but this is the old non-machine-readable version which has to be replaced back in Malaysia.

[philgeorge999]

Riiight so the advice seems to be that, providing...
1. He does not travel to Malaysia on his British passport
2. He does not allow his Malaysian passport to expire
3. He renews his passport whilst in Malaysia
... then he should get away with it.

I'm guessing that in order to board the plane in Malaysia (bound for Britain) he'd need some sort of UK visa in his Malaysian passport. I think British nationals can only get 'right of abode' stickers in foreign passports, so I would hope this isn't a clue that he has dual nationality.

[John]

I think that Right of Abode sticker would be a give-away of British Nationality.

So maybe, don't get that sticker in the Malaysian passport, but instead use the Malaysian passport to fly to say Thailand or Singapore. Then use the British passport to fly to the UK.

[Kayalami]

Riiight so the advice seems to be that, providing...
1. He does not travel to Malaysia on his British passport
2. He does not allow his Malaysian passport to expire
3. He renews his passport whilst in Malaysia
... then he should get away with it.

I'm guessing that in order to board the plane in Malaysia (bound for Britain) he'd need some sort of UK visa in his Malaysian passport. I think British nationals can only get 'right of abode' stickers in foreign passports, so I would hope this isn't a clue that he has dual nationality.

IMHO your list above is irrelevant. At some point in time registration requirements for Malaysian nationals overseas cross referenced with his absences therein and presence in the UK (with UK immigration stamps) as applicable will eventually see him caught out.

With Malaysia already having the world's first biometric passport (seemingly issued only in Malaysia) plus ongoing syncronisation/sharing of Malaysian and Singapore immigration/nationality records your luck may run out. I note that my query on whether there are exemptions applying to him as per the constitution have been ignored - knowing such may very well make our comments to date moot.

Out of interest why the keeness on retaining Malaysian citizenship? Is it worth the above hassle? Does your friend appreciate that he may not obtain consular assistance from the British Government in Malaysia?

[penanglad]

Malaysian citizenship is very valuable mainly because the Government has made it very difficult to get, even if you are married to a Malaysian. You should only get another passport if you are willing to risk losing your Malaysian citizenship.

Benefits are largely the presumption that your domicile remains Malaysia (Malaysia has no inheritance tax), plus the ability to go back and work there. There may be some (IMHO minor) issues to do with ownership of land, etc. Now that the Malaysia My Second Home programme is available, returning to Malaysia on retirement on a foreign passport should be pretty straightforward.

On the right of abode point, I am not sure. The Malaysian constitution does not actually prohibit dual nationality per se, e.g. if you are a British citizen by birth, or were a CUKC by birth in Penang or Malacca who became a British citizen on commencement of the 1981 Act, then you can have a COE in your Malaysian passport without any problem. Because right of abode is an immigration status not confined to UK nationals, there is nothing the Malaysian government can do, as long as you do not apply for a British passport.

Clearly if you naturalise or register as a British citizen you automatically entitle the Government to deprive you of your Malaysian citizenship, even if you never apply for a British passport. The question is therefore, can the Malaysian Government distinguish between COEs issued to British citizens by operation of law and those issued to British citizens by naturalisation/registration? IIRC the IDIs say somewhere that the relevant section of the 1981 Act are written in manuscript on the COE. This may have changed post-introduction of UKRPs. Perhaps someone else can comment?

[penanglad]

p.s. It is possible that since there are so many Malaysians with certificates of entitlement to right of abode in their passports (most people from Penang and Malacca who studied in the UK in the 60s and 70s and were granted ILR have them), the Malaysian authorities will not blink an eyelid. Certainly given the ignorance of UK law shown in the recent Lee Thean Hock case, it is very unlikely that they have even a basic understanding of post-1983 nationality law. However, there is always the risk that they will ask for a status letter from the Home Office.

[JAJ]

There is a technical question over whether loss of Malaysian citizenship is instantaneous upon naturalisation in the UK, or whether it requires an order of the Malaysian government.

However if Malaysia makes such orders on a routine basis, then it would seem moot whether loss of citizenship is immediate or not.

The bottom line appears to be that no Malaysian should naturalise as a British citizen unless he/she is happy to lose Malaysian citizenship.

[ppron747]

JAJ said:

There is a technical question over whether loss of Malaysian citizenship is instantaneous upon naturalisation in the UK, or whether it requires an order of the Malaysian government.
However if Malaysia makes such orders on a routine basis, then it would seem moot whether loss of citizenship is immediate or not.

I don't think it is "moot". It seems to me that there is a big difference between holding a passport showing a nationality that you do not have (which would be the case if loss of Malaysian citizenship is instantaneous), and simply concealing the fact that you also hold another citizenship, in order to avoid (or delay) the issue of a citizenship deprivation order.

If the first scenario is the true one (although I don't happen to think it is) the person would absolutely be holding a passport to which he/she was not entitled and, I believe, could therefore be committing an offence every time he/she "utters" it, anywhere in the world.

paul

[BabaPinang]

Is this topic still active?

[ben_scaro]

To the extent that this matter - ie how Malaysia treats citizens who hold other passports- is not particularly clear, then I guess the topic might be active.

What do you wish to contribute?

Ben

[Rozen]

Is this topic still active?

It is now!

[JAJ]

There is no obvious reason for this thread to be re-started.

Closed!