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Is UKM registration retroactive?

A section for posts relating to applications for Naturalisation or Registration as a British Citizen. Naturalisation

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Jaffa Cakes
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Double Descent and UKM

Post by Jaffa Cakes » Sun Dec 10, 2017 5:57 pm

I have been searching my way around in circles trying to get this all straight, so I'm hoping someone out there can set this straight:

My mothers' paternal grandparents were born in the UK and immigrated to the US in 1921. My grandfather was born in 1924 (so, he should be a UK citizen by descent). He married my grandmother in 1946. Based on what I've read that would have made her a UK citizen other than by descent so she could have passed that onto my mother who was born in 1950. But, would that have happened automatically at the time? I thought citizenship was only acquired through the father at the time? It would seem that she could register with the UKM application, or does she just need a passport? What does that mean to me? I would have been able to have been registered as a UK citizen had women been able to pass on their citizenship in the same way....

secret.simon
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Re: Double Descent and UKM

Post by secret.simon » Mon Dec 11, 2017 7:37 am

First things first. British nationality has evolved over time. Before 1948, there was no such thing as British citizenship. People living in the British Empire were generally (but not always) British subjects. The British Nationality Act 1948 first created the concept of Citizen of the United Kingdom and Colonies (CUKC).

Your mother's paternal grandparents were British subjects by birth in the UK. Your mother's father would have inherited their status as a British subject by descent. Your mother's mother may have (suggested by Paragraph 3.1.3 of the document linked to above) acquired British subject status by marrying your mother's father in 1946 and became a CUKC in 1949 under Section 12(5) of the British Nationality Act 1948.

Because she was born to a father whose only claim to CUKC was by descent himself, your mother was not a CUKC automatically.

Your mother's mother would have acquired patriality (later called Right of Abode)-See Section 2(2)-when it was created in 1971 and therefore could have acquired British citizenship in 1983. But, she would have become a British citizen by descent herself.

The relevant law is Section 14 of the BNA 1981, which defines who a British citizen by descent is.
Section 14 of the British Nationality Act 1981 wrote:Meaning of British citizen (by descent).(1)For the purposes of this Act a British citizen is a British citizen “by descent” if and only if—
  • (b) Subject to subsection (2), he is a person born outside the United Kingdom before commencement who became a British citizen at commencement and immediately before commencement—
    ...
    (iii)had the right of abode in the United Kingdom by virtue only of paragraph (b) of subsection (1) of section 2 of the Immigration Act 1971 as then in force (connection with United Kingdom through parent or grandparent), or by virtue only of that paragraph and paragraph (c) of that subsection (settlement in United Kingdom with five years’ ordinary residence there), or by virtue only of being or having been the wife of a person who immediately before commencement had that right by virtue only of the said paragraph (b) or the said paragraphs (b) and (c); or
Your mother's father would have acquired his Right of Abode under Section 2(1)(b) of the Immigration Act 1971 and therefore both he and his wife (your mother's father and mother's mother) would be defined as British citizens by descent in 1983 and hence neither of them would be unable to transmit citizenship to any children born abroad.

Therefore your mother cannot acquire citizenship through Form UKM.

The general rule to remember is that British citizenship is acquired automatically by the first generation born abroad and by another generation through registration, after meeting any requirements laid down. But it cannot generally be inherited by a third generation born abroad.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Jaffa Cakes
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Re: Double Descent and UKM

Post by Jaffa Cakes » Mon Dec 11, 2017 3:53 pm

Thank you for your reply. I e-mailed UKVI as well and was quite surprised that they actually got back to me. They basically told me the same thing. But, if you watch this short section of video it probably brings more questions than answers:

Third party weblink removed by moderator

Even if what he says is true, that would seem it doesn't help me (possibly my mother). But, there was also one sentence on wikipedia (I know, not a real resource) that had me thinking: "Before 1983, as a general rule CUKC status was transmitted automatically only for one generation, with registration in infancy possible for subsequent generations."

Which, if both cases were true and women could pass on their citizenship in the same way as men, then my mother would have been a citizen by descent and I could have been registered as a child.

secret.simon
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Re: Double Descent and UKM

Post by secret.simon » Tue Dec 12, 2017 5:53 pm

There are two, possibly three, sets of laws involved here and it is worth remembering that a later law can reduce or remove rights given in an earlier law.

Before 1983
Your mother's father father was a British subject and then a CUKC by birth in the UK
Your mother's father was a British subject and a CUKC by descent from his father
You mother could have been registered as a British citizen at a British Embassy or consulate within one year of her birth. Was she so registered? If she was, she was a CUKC. If she was not registered within the first year of her life, she wasn't.

After 1971
Those CUKCs who were either born in the UK OR whose parent or grandparent were born in the UK had Right of Abode in the UK.
Your mother's father would have been a CUKC with Right of Abode. Your mother would only have a Right of Abode if she was registered as a CUKC as mentioned above.
If she was registered as a CUKC within one year of her birth, she would be a CUKC with Right of Abode.

After 1983
CUKCs with Right of Abode became British citizens. Those without Right of Abode became British Overseas citizens.
If your mother was registered as a British citizen within one year of her birth, she would have become a British citizen by descent (Section 14(1)(b)(i) of the British Nationality Act 1983) on 1st January 1983.
If she was a British citizen by descent, she could not pass on her British citizenship to her children born abroad anyway.

The entire argument of course hinges on whether she was registered as a British citizen with a British Embassy or consulate within a year of her birth (and at the very latest before 1983). If she was not, she now has no claim to British citizenship.

She is eligible to apply for an Ancestry work visa, because she has at least one grandparent born in the UK. She can apply for ILR and then naturalisation in the usual way. But she will have no shortcut to British citizenship.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Jaffa Cakes
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Re: Double Descent and UKM

Post by Jaffa Cakes » Thu Dec 14, 2017 3:04 am

I think the whole argument sort of hinges on what the other guy was saying (in the link that was removed for some reason), and that was that my grandmother would have been a citizen by marriage and not descent. If she was in fact a citizen by means other than by descent then the citizenship should have been passed down automatically....had women been able to transfer their citizenship in the same way as men. At which point the baton passes to the next generation, hence the term double descent.

I think the key here lies in his caveat that was something to the effect of challenges being "imminently possible by formal petition to the home office."

How long and expensive that would be, I haven't a clue.

secret.simon
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Re: Double Descent and UKM

Post by secret.simon » Thu Dec 14, 2017 3:11 am

secret.simon wrote:
Mon Dec 11, 2017 7:37 am
Your mother's mother would have acquired patriality (later called Right of Abode)-See Section 2(2)-when it was created in 1971 and therefore could have acquired British citizenship in 1983. But, she would have become a British citizen by descent herself.

The relevant law is Section 14 of the BNA 1981, which defines who a British citizen by descent is.
Meaning of British citizen (by descent).(1)For the purposes of this Act a British citizen is a British citizen “by descent” if and only if—

(b) Subject to subsection (2), he is a person born outside the United Kingdom before commencement who became a British citizen at commencement and immediately before commencement—
...
(iii)had the right of abode in the United Kingdom by virtue only of paragraph (b) of subsection (1) of section 2 of the Immigration Act 1971 as then in force (connection with United Kingdom through parent or grandparent), or by virtue only of that paragraph and paragraph (c) of that subsection (settlement in United Kingdom with five years’ ordinary residence there), or by virtue only of being or having been the wife of a person who immediately before commencement had that right by virtue only of the said paragraph (b) or the said paragraphs (b) and (c); or
Your mother's father would have acquired his Right of Abode under Section 2(1)(b) of the Immigration Act 1971 and therefore both he and his wife (your mother's father and mother's mother) would be defined as British citizens by descent in 1983 and hence neither of them would be unable to transmit citizenship to any children born abroad.
Your mother's mother did acquire British citizenship by marriage. But because she acquired her British citizenship through marriage to a British citizen by descent, she got the same citizenship. Citizenship by marriage to a British citizen by descent gave her British citizenship by descent too.

The only way to acquire British citizenship otherwise tha by descent is either birth in the UK or registration or naturalisation with the UK authorities.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Jaffa Cakes
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Re: Double Descent and UKM

Post by Jaffa Cakes » Thu Dec 14, 2017 3:22 am

secret.simon wrote:
Thu Dec 14, 2017 3:11 am
The only way to acquire British citizenship otherwise tha by descent is either birth in the UK or registration or naturalisation with the UK authorities.
This guy was supposedly an immigration lawyer or something who used to work for the home office...so, I don't know what to tell you. I'm just trying to do my research here.

What he said makes sense on some level, but whether that's practical or if the fight would be worth it, I don't know.

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Re: Double Descent and UKM

Post by mulderpf » Thu Dec 14, 2017 8:01 am

secret.simon wrote:
Tue Dec 12, 2017 5:53 pm
She is eligible to apply for an Ancestry work visa, because she has at least one grandparent born in the UK. She can apply for ILR and then naturalisation in the usual way. But she will have no shortcut to British citizenship.
I think this is incorrect as she is not a commonwealth citizen.
Do not send me PM's with specific questions - post question in the open forum so others can also benefit from the answers.

vinny
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Re: Double Descent and UKM

Post by vinny » Thu Dec 14, 2017 8:48 am

secret.simon wrote:
Mon Dec 11, 2017 7:37 am
First things first. British nationality has evolved over time.
Update.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

secret.simon
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Re: Double Descent and UKM

Post by secret.simon » Thu Dec 14, 2017 5:03 pm

mulderpf wrote:
Thu Dec 14, 2017 8:01 am
I think this is incorrect as she is not a commonwealth citizen.
Quite correct. Good spot.

To the OP, your mother is ineligible for the Ancestry visa as she is not a Commonwealth citizen (assuming that currently she is a US citizen only).
vinny wrote:
Thu Dec 14, 2017 8:48 am
Update.
Thank you, vinny.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Jaffa Cakes
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Re: Double Descent and UKM

Post by Jaffa Cakes » Fri Jun 15, 2018 1:29 am

I saw a recent article about a court decision and I thought maybe I should revisit this. I hope it's ok to post this link to the article: https://asadakhan.wordpress.com/2018/02 ... l-descent/

This sort of summarizes her situation:

"Shelley Elizabeth Romein’s father was a US citizen. Her mother was a CUKC by descent because her father was British born. Romein was born abroad in the USA in 1978 when the 1948 Act applied. Romein’s mother tendered an affidavit that during pregnancy she approached the British consulate in Johannesburg to enquire about British citizenship for her unborn child. But she was correctly advised of her ineligibility because her only claim by descent was through her mother."

The article is long, but suffice it to say they found that her mother did in fact have the right to register her birth and the time limit has now been nullified. I believe this decision would extend to my mothers' situation, and by extension, my own. But, there always seems to be some caveat around the corner so that's why I thought I should bring this up. Thanks to everyone.

secret.simon
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Re: Double Descent and UKM

Post by secret.simon » Fri Jun 15, 2018 3:53 pm

Your case differs significantly from the Romein case.

I doubt that your mother was a British citizen by descent.

After 1948, your maternal grandfather would have been a CUKC by descent (Section 12(8) of the British Nationality Act 1948).

The only way that your mother would have become a CUKC at birth in 1950 was if your maternal grandfather registered her birth with the UK Embassy/Consulate within a year of her birth (Section 5(1)(b) of the British Nationality Act 1948).

If your mother's birth was not so registered , she would not be a CUKC before 1983 and therefore would not be a British citizen after 1983.

The Roumein case does not apply to registration of children born abroad to British citizen fathers by descent. Therefore, if your mother was not registered within a year of her birth, she cannot now use the Roumein judgment to get British citizenship for herself.

And if she was not a British citizen by descent at the time of your birth, you cannot use Form UKM to register yourself as a British citizen.

However, if your mother was a British citizen by descent at the time of your birth (because her father had registered her with the UK Consulate within a year of her birth), then the Roumein case would be applicable to you.

So, essentially, your entire case revolves around whether your maternal grandfather registered your mother as a British citizen with the UK consulate within a year of her birth. If he did, you can apply on Form UKM. If he did not, there is not much you can do now.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Jaffa Cakes
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Re: Double Descent and UKM

Post by Jaffa Cakes » Fri Jun 15, 2018 4:22 pm

secret.simon wrote:
Fri Jun 15, 2018 3:53 pm
So, essentially, your entire case revolves around whether your maternal grandfather registered your mother as a British citizen with the UK consulate within a year of her birth. If he did, you can apply on Form UKM. If he did not, there is not much you can do now.
I have already initiated a search for this with the national archives regarding the citizenship of everyone involved because I don't have an otherwise definitive answer on the subject.

My thought was that because my grandparents married in 1946 then my grandmother would have been a British subject and then a CUKC in 1948. So, when my mother was born, my grandmother could have registered her had she been allowed to. True, that my grandfather could also have done that, but I don't know if that is relevant?

There's also another question I have which I haven't been able to exactly answer, but how was British subject status handed down in 1868 if the person wasn't born in "his majesty's allegiance"...which I take to mean British controlled territory. This would probably determine whether my grandmother was also a British subject.

secret.simon
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Re: Double Descent and UKM

Post by secret.simon » Fri Jun 15, 2018 4:49 pm

You are looking down a vanishingly small rabbit-hole and clutching at straws (I know I am wildly mixing my metaphors, but hey, it is Friday evening).

Have a read-through of the reading list below. I believe that the top two links should answer your queries about your maternal grandmother's status.
Where and when was she and her father born?
British Nationality: Summary
History of British Nationality Acts
British Nationality Act 1948 (as enacted)
Immigration Act 1971 (as enacted) - Pay particular attention to Section 2
British Nationality Act 1981
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Jaffa Cakes
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Re: Double Descent and UKM

Post by Jaffa Cakes » Fri Jun 15, 2018 5:18 pm

secret.simon wrote:
Fri Jun 15, 2018 4:49 pm
You are looking down a vanishingly small rabbit-hole and clutching at straws (I know I am wildly mixing my metaphors, but hey, it is Friday evening).

Have a read-through of the reading list below. I believe that the top two links should answer your queries about your maternal grandmother's status.
Where and when was she and her father born?
British Nationality: Summary
History of British Nationality Acts
British Nationality Act 1948 (as enacted)
Immigration Act 1971 (as enacted) - Pay particular attention to Section 2
British Nationality Act 1981
I'm not sure the 1868 question is specifically addressed there, but it seems probable that the answer is that anyone born outside of the crown territories would not be a British subject.

I realize that the chances are somewhat slim in any case, but the way I see it is that if I didn't look into it and didn't try then the chances would definitely be zero.

Jaffa Cakes
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Re: Double Descent and UKM

Post by Jaffa Cakes » Fri Jun 15, 2018 7:45 pm

I forgot to say that my grandmother was born in the US in 1924 as was her father in 1868, but her grandparents were from Scotland. From what I've read her father may at most have been a British subject (though possibly not), but I doubt that would extend to her unless she was registered at birth.

Jaffa Cakes
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Is UKM registration retroactive?

Post by Jaffa Cakes » Fri Jun 22, 2018 3:13 am

My mother seems to meet all of the requirements for the UKM registration, but the question for me becomes whether that registration would be considered to be retroactive? Because if the spirit of this is to right a wrong then it would seem that it should be, but if she is deemed to only be a citizen from that day forward then it would seem that I might be excluded from UKM registration. Can anyone confirm this?

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Re: Is UKM registration retroactive?

Post by a_powers » Fri Jun 22, 2018 9:56 am

Not retroactive. It is effective from the day of the citizenship ceremony.

Jaffa Cakes
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Re: Is UKM registration retroactive?

Post by Jaffa Cakes » Fri Jun 22, 2018 3:40 pm

Would it be better if I were to try to make my own case?

I think based on the UKM guidance, my right of abode would be based on her citizenship and that is where I might get hung up. It does state "if, at the time of your birth your mother was not a citizen of the United Kingdom and Colonies by birth......you will need to send the following evidence of this:...." so it provides a vehicle for stating why she wasn't a citizen and why she would have been, but i don't see the same for the right of abode. However, because if she were a Citizen then she would have right of abode and so would I....so I think.

luthersnowak
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Re: Is UKM registration retroactive?

Post by luthersnowak » Fri Jun 22, 2018 4:10 pm

I don't that much about Right of Abode, but this flow chart helps. It will direct you to which sections of the Nationality Acts apply to your circumstances.

https://assets.publishing.service.gov.u ... t-v1.0.pdf

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