ESC

Click the "allow" button if you want to receive important news and updates from immigrationboards.com


Immigrationboards.com: Immigration, work visa and work permit discussion board

Welcome to immigrationboards.com!

Login Register Do not show

British Overseas Citizens - Penang. Help!

General UK immigration & work permits; don't post job search or family related topics!

Please use this section of the board if there is no specific section for your query.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe, Administrator

nangvil
Junior Member
Posts: 66
Joined: Sun Nov 12, 2006 5:33 pm

British Overseas Citizens - Penang. Help!

Post by nangvil » Sun Nov 12, 2006 5:41 pm

I would be grateful if someone could provide me with any information on British Overseas Citizens.

My dad was born in Penang in 1950 and I was born in Penang on 1979. I have been in UK for the last 8 years, of which 6 as a student.

I was told by friends that I am eligible to apply for a British Overseas Citizens passport through descent as my father was born in Penang. I have all the documents including both his and my birth certs and marriage certificate of my parents.

However, when I made an appointment to apply for a new BOC passport, I was told by the regional office in Scotland that I am not entitled to apply and could only do so through the British High Commission in KL or by going through naturalisation(going to a separate route to obtain BC).

Could anyone provide me with any literature of Act which stipulates that I am entitled to apply?

Many thanks for your kind input.

ppron747
inactive
Posts: 950
Joined: Wed Oct 19, 2005 5:10 pm
Location: used to be London

Post by ppron747 » Sun Nov 12, 2006 6:33 pm

I agree with your friends...

If your father was born in Penang he would have been a citizen of the UK & Colonies (CUKC) by birth, under section 4 of the British Nationality Act 1948.

When British colonies became independent, the normal position is that people who had British nationality through their connection with the colony lost British nationality, and became citizens of the newly-independent State. However, this was not the case with people from the colonies of Penang & Malacca, when they became independent as parts of Malaya. People who had CUKC by birth in Penang or Malacca simply continued to be CUKCs by birth, even though they became citizens of Malaya and, later, Malaysia.

Unless your father renounced CUKC before your birth, then you would have been a CUKC by descent from him, under section 5(1) of the British Nationality Act 1948, provided you were legitimate.

The British Nationality Act 1981 came into force on 1 January 1983, and "recategorised" CUKCs as British citizens, British Dependent Territories citizens and British Overseas citizens. Unless you had connections with the UK itself or with a remaining colony (now renamed Dependent Territories), both you and your father would have become British Overseas citizens, under section 26 of the 1981 Act.

The only thing that could have stopped this, so far as your status is concerned, is if your father had formally renounced CUKC before your birth. If this had happened, the Home Office would know about it, because they would have had to register it before it took effect...

What is your present status in UK, nangvil? Are you here legally? Are the Passport Office saying that they won't accept the application because there's something wrong with your status, and that's why you need to apply to KL?

Can I also ask why you are so attached to the idea of a BOC passport? BOCs are "subject to control" under the Immigration Act 1971, and I cannot see that it will give you any particular advantages over your present Malaysian citizenship.
|| paul R.I.P, January, 2007
Want a 2nd opinion? One will be along shortly....

nangvil
Junior Member
Posts: 66
Joined: Sun Nov 12, 2006 5:33 pm

Post by nangvil » Sun Nov 12, 2006 7:42 pm

Ppron747,
Many thanks for your quick response.

I do not think my father had formally renounced CUKC before my birth.

My present status is I'm on a permit free training for work for the last 2 years. The only reason I can think of as to why the passport office in Scotland said I am not eligible is because they probably don't know about Penang with regards to Section 4 of the British Nationality Act 1848. To pass the bucket round, they just told me to approach IND or Neutralisation.

I do realise BOCs are subject to control, but I thought since I'm entitled to apply it, but not just apply for one.

I don't know how true this is. A friend told me he after acquiring BOC, he renounced his Malaysian Citzenship, applied for ILR and obtained a BC. Is that possible at all? Sounds suspicious....

ppron747
inactive
Posts: 950
Joined: Wed Oct 19, 2005 5:10 pm
Location: used to be London

Post by ppron747 » Sun Nov 12, 2006 8:16 pm

Hi nangvil

To take your last point first, it's a rumor I've heard.. It may have some truth in it, or it may just be an urban myth, to give immigration folk something to talk about over a pint...

The theory is that if, having got your BOC passport, you renounce your Malaysian citizenship while you're outside Malaysia, you then don't have a country to which you can be returned, and so have to be allowed to remain here.

Whether it has any basis in truth, I don't have a clue. I wonder, though, now you've reminded me of it, whether that might possibly have been the reason for the Passport Office's refusal to issue....

Another member here - Bakuli - was actually offered a first-time BOC passport some weeks ago in London - but his situation was different from yours, as he has lived here for many years, and had had ILR since about the time you were born. (Sorry Bakuli, if you're reading!) So they couldn't really give him the same brush-off as they gave you - although they certainly made his life interesting for a while...

I think the way to get the definitive answer from the Passport Office is simply to submit a postal application - with a brief explanation of your claim to BOC - so that if they still don't want to do it, they have to write to you and explain why...

But there are a couple of other people here who might have views.
|| paul R.I.P, January, 2007
Want a 2nd opinion? One will be along shortly....

JAJ
Moderator
Posts: 3977
Joined: Sun Oct 23, 2005 8:29 pm
Australia

Post by JAJ » Sun Nov 12, 2006 9:09 pm

ppron747 wrote:Hi nangvil

To take your last point first, it's a rumor I've heard.. It may have some truth in it, or it may just be an urban myth, to give immigration folk something to talk about over a pint...

The theory is that if, having got your BOC passport, you renounce your Malaysian citizenship while you're outside Malaysia, you then don't have a country to which you can be returned, and so have to be allowed to remain here.

Whether it has any basis in truth, I don't have a clue.
Maybe this is the source of the rumour. From the Nationality Instructions on section 4B registration:
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary (pdf)

2.11 Applicants of Malaysian origin

2.11.1 The Constitution of the Federation of Malaysia provides that Malaysian citizens may by order be deprived of citizenship if:

• they have acquired citizenship of any country outside the Federation either by registration, naturalisation or other voluntary and formal act (Clause 24(1)); or
• they have voluntarily claimed and exercised, in a foreign country, any rights available to them under that country's laws where those rights are accorded exclusively to that country’s citizens (Clause 24(2))

2.11.2 Under Clause 24(3A) of the Constitution, a person is deemed to have claimed and exercised a right mentioned in Clause 24(2) if, after 10 October 1963, he or she either:
a. applies to the authorities of a place outside the Federation for the issue or renewal of a passport; or
b. uses a passport issued by the authorities of a place outside the Federation as a travel document

2.11.3 It had been our previous understanding, and the Malaysian government’s position, that acquisition of a BOC passport by a Malaysian citizen was sufficient justification for the deprivation of Malaysian citizenship.

2.11.4 However on 21 February 2005 in the case of Lee Thean Hock, Judicial Review number 25-64-2004 the Penang (Malaysia) High Court took a different view. The Court drew a distinction between the acquisition of a British citizen passport, which could justify deprivation under Article 24(2) of the Constitution, and the acquisition of a BOC passport, which could not.

2.11.5 For the purposes of s.4B(2)(b) BNA 1981, it can no longer be assumed that the holder of a BOC passport has lost any claim s/he might otherwise have had to Malaysian citizenship. We require to see evidence from the Malaysian authorities, dated post 21 February 2005 to take into account the court ruling, that the applicant does not hold Malaysian citizenship and has not, after 4 July 2002, given up or done anything to prompt the deprivation of that citizenship


So if a Malaysian acquired a BOC passport before 4 July 2002, AND applied for British citizenship under section 4B of the Act then it may have allowed that person to register as a British citizen before the Home Office changed policy in 2005.

Of course now, even if a Malaysian did lose citizenship by acquiring a BOC passport, it would be after 4 July 2002 and no entitlement to British citizenship under section 4B would be created.


I wonder, though, now you've reminded me of it, whether that might possibly have been the reason for the Passport Office's refusal to issue....
I see no legal basis for the Passport Office to refuse to issue a BOC passport to a person who holds that status. But we see a regular supply of cases where front-line Passport Office officials do not exactly have a comprehensive understanding of nationality law.

But at the same time, I see no reason why the original poster should want a BOC passport - it gives him no rights over and above Malaysian citizenship.

If he acquired ILR, then after one further year he will be able to register as a British citizen under section 4 of the British Nationality Act 1981. This is a quicker process than naturalisation and does not require the Life in the UK Test.

However there is no particular need I can see to obtain a BOC passport in order to obtain British citizenship this way. Other evidence of BOC status is enough. And it doesn't matter what other citizenship he may hold.

nangvil
Junior Member
Posts: 66
Joined: Sun Nov 12, 2006 5:33 pm

Post by nangvil » Sun Nov 12, 2006 9:43 pm

[quote="JAJ"]However there is no particular need I can see to obtain a BOC passport in order to obtain British citizenship this way. Other evidence of BOC status is enough. And it doesn't matter what other citizenship he may hold.[/quote]

Could you kindly clarify that?

I still have another 2 more years to go before I am qualified for ILR. I'm not sure if I am able to extend my contract and stay for that period of time. Are they any other ways to obtain BC through BOS status instead of waiting another 2 years for ILR?
Last edited by nangvil on Sun Nov 12, 2006 9:45 pm, edited 2 times in total.

ppron747
inactive
Posts: 950
Joined: Wed Oct 19, 2005 5:10 pm
Location: used to be London

Post by ppron747 » Sun Nov 12, 2006 9:43 pm

JAJ wrote:.....Maybe this is the source of the rumour. From the Nationality Instructions on section 4B registration:
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary (pdf).....
No - the rumour/myth/speculation/theory pre-dated section 4B by ages, IIRC - the person who first told me about it has been dead for at least ten years!

It'll be interesting to see what happens if nangvil decides to continue with his/her application. I know the Passport Office can be difficult over, eg dual national holidaymakers in UK, applying for their first British passport while they're here on a visit. They tend to take the line that if the person is ordinarily resident elsewhere, then elsewhere is where they should be getting their first British passport.

But it would be difficult to deploy that argument with someone who has lived in the UK for 8 years, even as a student. I can never remember the name of the case, but it has been well established in law that it is entirely possible to be "ordinarily resident" in UK while still being on immigration time conditions. (The case was something to do with Barnet Council, IIRC, and dates back to the 1980s, I think...

Anyway, I await the next exciting installment!
|| paul R.I.P, January, 2007
Want a 2nd opinion? One will be along shortly....

ppron747
inactive
Posts: 950
Joined: Wed Oct 19, 2005 5:10 pm
Location: used to be London

Post by ppron747 » Sun Nov 12, 2006 9:54 pm

nangvil wrote:
However there is no particular need I can see to obtain a BOC passport in order to obtain British citizenship this way. Other evidence of BOC status is enough. And it doesn't matter what other citizenship he may hold.
Could you kindly clarify that?

I still have another 2 more years to go before I am qualified for ILR. I'm not sure if I am able to extend my contract and stay for that period of time. Are they any other ways to obtain BC through BOS status instead of waiting another 2 years for ILR?
An application on Form BOS (ie under s.4B of the 1981 Act) can't work for you, nanvil - you would need to show that you weren't Malaysian on 4 July 2002, and of course, you cannot do that.

I don't think there's any escaping the fact that you really do need to get ILR in order to get British citizenship. Once you have ILR - and have had it for a year - you then have an entitlement to registration as a British citizen under section 4.

I don't know what you've been studying, but is there no chance of switching to WP or HSMP of you can't renew your present contract?
|| paul R.I.P, January, 2007
Want a 2nd opinion? One will be along shortly....

nangvil
Junior Member
Posts: 66
Joined: Sun Nov 12, 2006 5:33 pm

Post by nangvil » Sun Nov 12, 2006 10:37 pm

Medicine.

Interesting to note what u have mentioned regarding relinquishing my malaysian citizenship here in UK and obtaining ILR. Sounds very interesting:)

I'm awaiting news on a court ruling on HSMP which is due to come out in middle December. I know some existing health trusts are not 'keen' on applying for work permits.

JAJ
Moderator
Posts: 3977
Joined: Sun Oct 23, 2005 8:29 pm
Australia

Post by JAJ » Sun Nov 12, 2006 10:50 pm

ppron747 wrote: I know the Passport Office can be difficult over, eg dual national holidaymakers in UK, applying for their first British passport while they're here on a visit. They tend to take the line that if the person is ordinarily resident elsewhere, then elsewhere is where they should be getting their first British passport.
The British High Commission in Australia say it should be possible:
http://bhc.britaus.net/Passports/passportsdefault.asp

Alternatively, you may also apply to the British Identity and Passport Service (IPS) in person whilst visiting the UK. In order to do this, you need to make an appointment with IPS in the UK and you must provide an address in the UK to which the passport may be posted. Applicants will have to be available at this address to sign for the receipt of the passport. Please note that IPS do not accept applications by post or email if you live abroad.

JAJ
Moderator
Posts: 3977
Joined: Sun Oct 23, 2005 8:29 pm
Australia

Post by JAJ » Sun Nov 12, 2006 10:55 pm

nangvil wrote:Interesting to note what u have mentioned regarding relinquishing my malaysian citizenship here in UK and obtaining ILR. Sounds very interesting:)
I think Paul has made it clear that even if you renounce your Malaysian citizenship it will not give you ILR on that basis.

If you have lived and studied in Scotland, are you aware of the Fresh Talent Scotland initiative:
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary (pdf)

It does say that: The Fresh Talent: Working in Scotland scheme does not lead to settlement, nor will leave granted under this scheme count towards the qualifying period for settlement in other employment or business routes.

However it may well be that it does count towards ILR under the 10 year rule (any legal residence in the UK will normally do). I will leave that to someone like John who is expert in the Immigration Rules.

Whatever you do, do not let yourself become unlawful in the UK by letting your existing visa expire.
Last edited by JAJ on Sun Nov 12, 2006 10:56 pm, edited 1 time in total.

penanglad
Junior Member
Posts: 91
Joined: Fri Oct 15, 2004 4:06 pm

Post by penanglad » Sun Nov 12, 2006 10:56 pm

The problem usually is UKPA officers who have a very limited and often wrong understanding of nationality law.

Sometimes if you are in no hurry it may be easier to apply after you have got the Home Office to issue you a letter confirming your citizenship status. There is then no basis on which the UKPA should refuse your application.

As for the rumour, see below. Someone should apply for the chapter under the Freedom of Information Act. They may refuse to disclose it, but I have previously had unpublished chapters released to me under the Act.
Applications for indefinite leave to remain from BOCs, BSs and BPPs who do not qualify
under the Rules but who claim they are unable to return to their previous country of
residence should normally be refused. Applicants should be advised that they may be
eligible to register as a British citizen under the NIA Act. A paragraph for inclusion in the
refusal letter can be found at annex C

Where there is compelling evidence of non-returnability, the granting of discretionary leave
may be considered. More detailed information on how to handle applications outside the
Rules from BOCs, BSs and BPPs and the limbo policy is contained in Chapter 22 Section
2.
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary

nangvil
Junior Member
Posts: 66
Joined: Sun Nov 12, 2006 5:33 pm

Boc >> HSMP?

Post by nangvil » Sun Nov 19, 2006 2:24 pm

Dear all,
Made an appointment earlier this week at my regional passport office. They initially didn't have a clue about all this Penang-BOC issues, until I produced different NIs(many thanks to ppron747 and penanglad). An hour later(after thoroughly scrutinizing my documents), they approved my application for a BOC passport (subject to immigration control under 1971).

I am now thinking of converting my permit-free visa status to HSMP. Can I:
(1) Transfer my visa from malaysian passport to BOC passport
(2) Apply for HSMP using BOC passport, question is will I then be exempted to pay for the £300+ fees?

Many thanks for your input.

penanglad
Junior Member
Posts: 91
Joined: Fri Oct 15, 2004 4:06 pm

Post by penanglad » Mon Nov 20, 2006 11:14 am

You are probably better off continuing to travel with your Malaysian passport unless and until you get ILR. You will get more visa-free travel with your Malaysian passport than with your BOC passport, e.g. most of Europe requires a Schengen visa for BOC passport-holders with the "subject to control under the Immigration Act 1971" endorsement.

Also, in spite of the Lee Thean Hock case, you should probably still be very careful with how you use your BOC passport - do not take it to Malaysia/Singapore and do not flash it about.

I do not believe a BOC passport gives you any advantage as regards fees. Also, note that the HSMP scheme is suspended until next month, when the new points scheme comes into effect.

Marco 72
Diamond Member
Posts: 1102
Joined: Wed Oct 05, 2005 2:53 pm
Location: London

Post by Marco 72 » Mon Nov 20, 2006 1:59 pm

Just out of curiosity, what does a BOC passport look like? Does it have the words "European Union" on the cover? Is it obvious from the cover that the holder is a British Overseas Citizen?

ppron747
inactive
Posts: 950
Joined: Wed Oct 19, 2005 5:10 pm
Location: used to be London

Post by ppron747 » Mon Nov 20, 2006 3:38 pm

It is called a "lookalike" - it looks just like the standard passport, but DOESN'T have EU on the cover, and is in English and French - no other EU languages. The same thing is also issued to other non-EU British nationals - eg British subjects without right of abode, and British Protected persons.

So, it's not obvious that the holder is a BOC, but it IS obvious from the outside that the status in the passport isn't "British citizen"....
|| paul R.I.P, January, 2007
Want a 2nd opinion? One will be along shortly....

Marco 72
Diamond Member
Posts: 1102
Joined: Wed Oct 05, 2005 2:53 pm
Location: London

Post by Marco 72 » Mon Nov 20, 2006 6:07 pm

But in that case wouldn't be identical to, say, the passport of a citizen of the Isle of Man (or the Channel Islands) with no connections to the UK? If so, how does an immigration officer tell if the person has the Right of Abode? Is there a stamp in the passport saying that the person has no Right of Abode, perhaps?

ppron747
inactive
Posts: 950
Joined: Wed Oct 19, 2005 5:10 pm
Location: used to be London

Post by ppron747 » Mon Nov 20, 2006 6:29 pm

IoM and Channel Islands produce their own passports with the name of the territory on the front.... And people from those places DO have the right of abode in UK, because they're British citizens. It's their ability to benefit from the settlement and establishment provisions available to EU nationals that may be compromised by their IoM/CI connection. In that case the passport is endorsed with something to that effect.

BOCs are "Subject to Control under the Immigration Act" but I don't know if this is endorsed in their passports. The fact that they are BOCs implies that anyway (in the absence of an endorsement saying that they have the right of readmission to UK) so it may not be deemed necessary to draw attention to their being subject to control.

In "ye olden tymes" before 1983, it was necessary to endorse the person's immigration status in the passport because the main British status was "citizenship of the UK & Colonies", which didn't, in itself, indicate whether the person could live in UK or not....
|| paul R.I.P, January, 2007
Want a 2nd opinion? One will be along shortly....

nangvil
Junior Member
Posts: 66
Joined: Sun Nov 12, 2006 5:33 pm

Say BOC with ILR?

Post by nangvil » Mon Nov 20, 2006 8:30 pm

I'm finding all this immigration issues more and more interesting..

ppron747, u're right in saying there's an endorsement on the passport stating 'The holder is subject to control under the Immigration Act 1971'.

Say in 1.5 years time when I get my ILR, what will happen then?

Will I be eligible to apply for Right of Abode?

Will I have to reapply to Passport services to get the endorsement removed?

Marco 72
Diamond Member
Posts: 1102
Joined: Wed Oct 05, 2005 2:53 pm
Location: London

Post by Marco 72 » Mon Nov 20, 2006 9:30 pm

After five years of residence and after holding ILR for at least 1 year, you will be able to apply for registration as a British Citizen under section 4 of the British Nationality Act of 1981 (see here).

By the way, forgive my curiosity again, but is your BOC passport biometric, or do they only make BC ones biometric?

ppron747
inactive
Posts: 950
Joined: Wed Oct 19, 2005 5:10 pm
Location: used to be London

Post by ppron747 » Mon Nov 20, 2006 9:40 pm

That's an interesting question, nangvil!

My own inclination would be to get the ILR endorsement put into your BOC passport, when the time comes. AIUI, one of the advantages of this is that ILR endorsed in a BOC, BS or BPP passport never expires, whereas ILR in a foreign or Commonwealth passport expires after two years absence from the UK. But I think this is tied specifically to the passport - so that if you have it put in your Malaysian passport, it can still expire after two years absence, even though you are also a BOC... (I'm not absolutely certain about this, though, and I'm away from home at the moment with a sporadic (to put in politely) internet connection, so cannot do the research...

You ask about applying for right of abode, and the answer to this is definitely no, I'm afraid. Since 1983, the only way to acquire the right of abode for the first time is by becoming a British citizen (eg by naturalisation). More or less the only non-BCs who have the right of abode now are people who got it before 1983, through marriage or through being a Commonwealth citizen with a UK-born mother.
|| paul R.I.P, January, 2007
Want a 2nd opinion? One will be along shortly....

nangvil
Junior Member
Posts: 66
Joined: Sun Nov 12, 2006 5:33 pm

Post by nangvil » Mon Nov 20, 2006 9:51 pm

Many thanks ppron747.

With the ILR endorsed on the BOC passport, do I still need a Schengen visa to travel around Europe?

With regards to Naturisation vs Registration as BC, what is the difference? Am I right in saying I don't have to go through the Life in UK test for the latter?

P/s Marco72, yes, the BOC is biometric.

ppron747
inactive
Posts: 950
Joined: Wed Oct 19, 2005 5:10 pm
Location: used to be London

Post by ppron747 » Mon Nov 20, 2006 10:01 pm

Yes , you will still need visas, wherever BOCs need visas, I'm afraid. ILR only makes it easier for entry into UK....

As you'll have seen, Marco and I were both posting at about the same time - I agree with him that the registration option is the better one - no test, and (at the moment, at least) registration takes less time than naturalisation. There's no real difference between the two as regards the end result - in both cases you end up as a British citizen otherwise than by descent, which means you will be able to transmit British citizenship to children born outside the UK.
|| paul R.I.P, January, 2007
Want a 2nd opinion? One will be along shortly....

JAJ
Moderator
Posts: 3977
Joined: Sun Oct 23, 2005 8:29 pm
Australia

Post by JAJ » Tue Nov 21, 2006 1:22 am

ppron747 wrote:IoM and Channel Islands produce their own passports with the name of the territory on the front.... And people from those places DO have the right of abode in UK, because they're British citizens. It's their ability to benefit from the settlement and establishment provisions available to EU nationals that may be compromised by their IoM/CI connection. In that case the passport is endorsed with something to that effect.
However this does not alter the fact that all British citizens, including those from the IoM/CI, are "United Kingdom nationals" for EU purposes. And all British citizen passports, including those issued in the IoM/CI to those with an employment restriction, are in EU common format.

The employment restriction does not apply to IoM/CI British citizens who have lived for 5 years in the UK, or who have a UK born parent or grandparent. Ironically, the British passports of IoM/CI born parents to EU citizens with "settled" status are endorsed with the employment restriction.

penanglad
Junior Member
Posts: 91
Joined: Fri Oct 15, 2004 4:06 pm

Post by penanglad » Tue Nov 21, 2006 10:40 am

There are two endorsements a BOC can have in his passport:

* Holder is subject to control under the Immigration Act 1971
* Holder has the right of readmission to the United Kingdom

If you have ILR, you can apply for a passport with the second endorsement. This will exempt you from visas in most European countries and some other countries, e.g. Canada, New Zealand, etc.

In practice immigration officials in many EU countries will not even look at the endorsement page, and will wave you through without even stamping your passport. But occasionally you will get an observant one who will check.

For a picture of a lookalike passport, see http://en.wikipedia.org/wiki/British_passport

A BOC never loses his right to ILR, regardless of how he was granted ILR and what passport he was granted at the time. All he needs to be readmitted is to apply for a UK passport, and to show that he has been granted ILR any time after 1 Mar 1968. The "right of readmission" endorsement is only one way of showing this.

Locked
cron