British citizenship by descent

billr · Post by **billr** » Thu Mar 13, 2008 9:41 am

My situation is vaguely similar to OFCHARITY's earlier post. I have an issue in proving legitimacy (my parents subsequentyly married) and I have been trying to find an Australian-based UK Immigration lawyer. emails to the ILPA have gone unanswered, and another query to a high profile London firm have also resulted in nothing.

Can anyone suggest a possible contact?

Cheers

Christophe · Post by **Christophe** » Thu Mar 13, 2008 9:59 am

billr wrote:My situation is vaguely similar to OFCHARITY's earlier post. I have an issue in proving legitimacy (my parents subsequently married)...

This doesn't answer your main question, I know: but if you are wishing to apply for a UK ancestry visa, I don't think that legitimacy is important.

Post by **vinny** » Thu Mar 13, 2008 10:10 am

18.14 - United Kingdom Ancestry wrote:Legitimate descent
It makes no difference whether the relevant grandparent is in the legitimate or illegitimate line.

billr · Post by **billr** » Thu Mar 13, 2008 10:12 am

Thanks Christophe - I am a little unclear on the Ancestry Visa vs Citizenship thing (if there is any difference...), but I am actually after British Citizenship. My 2005 applicaqtion was returned to me with a huge questionnaire for my father to fill out (he had died 7 yrs previously). My mother recently passed away and left me with a load of documents that may assist me, so I'm keen to go again!

Post by **vinny** » Thu Mar 13, 2008 10:27 am

See also Legitimacy.

billr · Post by **billr** » Thu Mar 13, 2008 11:20 am

Thanks Vinny - I had read this previously, hence my desire to find a lawyer ......

Christophe · Post by **Christophe** » Thu Mar 13, 2008 12:07 pm

billr wrote:Thanks Christophe - I am a little unclear on the Ancestry Visa vs Citizenship thing (if there is any difference...), but I am actually after British Citizenship. My 2005 applicaqtion was returned to me with a huge questionnaire for my father to fill out (he had died 7 yrs previously). My mother recently passed away and left me with a load of documents that may assist me, so I'm keen to go again!

Oh, OK, I beg your pardon! There is a difference, but if you're talking about citizenship then the ancestry visa is not relevant.

Post by **JAJ** » Fri Mar 14, 2008 3:12 am

billr wrote:My situation is vaguely similar to OFCHARITY's earlier post. I have an issue in proving legitimacy (my parents subsequentyly married) and I have been trying to find an Australian-based UK Immigration lawyer. emails to the ILPA have gone unanswered, and another query to a high profile London firm have also resulted in nothing.

So was your father born in the United Kingdom?

If yes, then you may get more meaningful information if you can specify:

- when were you born?
- when did your parents get married?
- how long did your father live in Australia?
- did he ever become an Australian citizen?

billr · Post by **billr** » Fri Mar 14, 2008 8:18 am

My Father was born in Glasgow 1925, arr Australia 1950 as a widower
My Mother was born in Oxford 1925, arr Australia 1927
My mother married then seperated from her first husbandc 1952
My parents commenced a common law (de facto) relationship in 1954 which lasted until my father died 10 years ago.
My mother divorced her first husband in 1971 and married my father the same year.
My Birth cert was only registered in 1971, it lists my father

I believe that had I been born after 1961 I could get my citizenship through my mother (I was born in 1956)

I don't believe my Father ever became an Australian Citizen (my mother did several years ago)

Cheers,
Bill

Post by **JAJ** » Fri Mar 14, 2008 1:39 pm

billr wrote:My Father was born in Glasgow 1925, arr Australia 1950 as a widower
My Mother was born in Oxford 1925, arr Australia 1927
My mother married then seperated from her first husbandc 1952
My parents commenced a common law (de facto) relationship in 1954 which lasted until my father died 10 years ago.
My mother divorced her first husband in 1971 and married my father the same year.
My Birth cert was only registered in 1971, it lists my father

I believe that had I been born after 1961 I could get my citizenship through my mother (I was born in 1956)

I don't believe my Father ever became an Australian Citizen (my mother did several years ago)

As a minimum you are entitled to Right of Abode based on your mother, so forget the Ancestry Visa.

As to whether you are already a British citizen, section 23 of the British Nationality Act 1948 is instructive:

23.â€”(i) A person born out of wedlock and legitimated by the subsequent marriage of his parents shall, as from the date of the marriage or of the commencement of this Act, whichever is later, be treated, for the purpose of determining whether he is a citizen of the United Kingdom and Colonies, or was a British subject immediately before the commencement of this Act, as if he had been born legitimate.

(2) A person shall be deemed for the purposes of this section to have been legitimated by the subsequent marriage of his parents if by the law of the place in which his father was domiciled at the time of the marriage the marriage operated immediately or subsequently to legitimate him, and not otherwise.

The two questions to answer are:

1. Did your father change his domicile to Australia by the time he was married in 1971?

- If NO, you would have become British in 1971.

2. If the answer to the first question is YES, were you "legitimated" under Australian law by the marriage?
(take note that legitimation through Australian law on a stand-alone basis does not count).

- If YES to the second question, you would also be British from that date.

If you read the Home Office policy on legitmacy, you'll see a discussion of the situation in New Zealand:
http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

If you were from NZ there would be a good chance you were not a British citizen. Australia is different in that most states abolished most of the consequences of illegitimacy but not the status itself. The discussion in the Home Office policy document makes this clear.

I'm not optimistic on finding a lawyer capable of dealing with this easily, by the way. But why can't you do this yourself? The British High Commission may well have sent a Domicile Questionnaire which can't be completed (because father is deceased) but that doesn't stop you corresponding with them in writing.

As far as I can see, Australia has not enacted a law like New Zealand (before 1971). Hence, it really does not matter where your father was domiciled (U.K. or Australia) and you can point out to the High Commission that regardless, you were legitimated by the marriage in 1971 and became British on that date.

Your mother Off topic, but did your mother go through the naturalisation process to become an Australian citizen? If she arrived in 1927 then as far as I can see she would have become an Australian citizen automatically on 26 January 1949.

billr · Post by **billr** » Fri Mar 14, 2008 5:36 pm

Thanks JAJ, I really appreciate the advice - I will get back in contact with the BHC in Canberra and see what they have to say.

My Mother did go through the naturalisation process about 5 years ago - she wanted to formally become an Aussie (there was a big drive from the Gov't to encourage Brits to adopt citizenship). Before that her status was unclear anyway, even though she worked as a public servant she was unable to get an Australian Passport due to some glitch in paperwork arising from her coming to Australia as a 2 YO.

Thanks again for taking the time to reply.

Cheers,
Bill

Post by **JAJ** » Fri Mar 14, 2008 11:27 pm

billr wrote:Thanks JAJ, I really appreciate the advice - I will get back in contact with the BHC in Canberra and see what they have to say.

Bear in mind that based on the facts presented, you are a British citizen and whether or not your father was Australia domiciled when he married is irrelevant.

My Mother did go through the naturalisation process about 5 years ago - she wanted to formally become an Aussie (there was a big drive from the Gov't to encourage Brits to adopt citizenship). Before that her status was unclear anyway, even though she worked as a public servant she was unable to get an Australian Passport due to some glitch in paperwork arising from her coming to Australia as a 2 YO.

It doesn't matter what the "paperwork glitch" was. If she was legally resident in Australia (as a British subject) from 26 Jan 1944 to 26 Jan 1949, then she automatically became an Australian citizen on 26 January 1949.

Her naturalisation was most likely null and void (due to her already being an Australian citizen).

The problem with getting a passport could have been because passport officials do not understand some of the less commonly-encountered areas of nationality law. People who have become Australian citizens this way can apply for citizenship certificates from the Department of Immigration proving they became Australian citizens at some point in the past.

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