Right of abode - some changes?

[Jwana]

Hi there

I am an Aussie who was granted 'right of abode' in the UK some years ago. Up until Dec 2006 it was possible to transfer your right of abode sticker from your old (Australian) passport to your new one by filling out a form & paying a small transfer fee. As I was about to do this I realised (from looking at the UK visa website) that the rules had changed overnight and when I contacted the embassy on Aust. I was told that in order to try to obtain another right of abode sticker for my current passport I have to start the whole process again - sending all the original documents (which I sent the first time!) + of course paying the full application fee.

Does anyone out there know / have an opinion on why this has changed? Is it just a money making exercise? Is it because of the heightened security measures?

This time they are also asking for my marriage certificate and I'm feeling a bit edgy as 4 years ago I married my husband who is from the Middle East. Although he is an Aust citizen and has an Aust passport I'm concerned that this will be a 'black' mark against my application...but maybe I am just being a bit paranoid!

Any comments / advice gratefully received.

Cheers
Joanne

[JAJ]

Hi there

I am an Aussie who was granted 'right of abode' in the UK some years ago. Up until Dec 2006 it was possible to transfer your right of abode sticker from your old (Australian) passport to your new one by filling out a form & paying a small transfer fee. As I was about to do this I realised (from looking at the UK visa website) that the rules had changed overnight and when I contacted the embassy on Aust. I was told that in order to try to obtain another right of abode sticker for my current passport I have to start the whole process again - sending all the original documents (which I sent the first time!) + of course paying the full application fee.

Does anyone out there know / have an opinion on why this has changed? Is it just a money making exercise? Is it because of the heightened security measures?

New regulations. The Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006 came into force on 21 December 2006:
http://www.opsi.gov.uk/SI/si2006/20063145.htm
http://www.opsi.gov.uk/si/em2006/uksiem_20063145_en.pdf

It doesn't affect your status as a Right of Abode holder but does tighten up the process for obtaining a Certificate of Entitlement. One of the other significant changes is that people who hold British passports can no longer have a Certificate of Entitlement stamped in a foreign passport.

Is your claim to Right of Abode based on having a UK-born mother and being born prior to 1983? If that's the case, have you looked to see if you are eligible to register as a British citizen (by descent), if you were born on or after 8 Feb 1961?

This concession has only been in place since 30 April 2003.

The only slight downside of registering as British by descent (if you are eligible) is that it then closes off the option of going to the UK and becoming British "otherwise than by descent" through naturalisation. This could affect the status of any future children born in Australia. But in your case, your husband could (if you became British) become naturalised British after 3 years in the UK and use his status to confer British citizenship on any future children born in Australia.

[Jwana]

Hi JAJ - thanks for that info. Some time ago I did look into becoming a British citizen (by descent) but received a very nice, long letter from the UK embassy here explaining why I could not do so...I was born 11 months too late (or early depending on how you look at it!) as was bron in March 1960 so bad luck for me!

But I am still a little confused about what happens to my 'right of abode' if every time my passport expires I have to start the application process over again. Also, if I live in the UK for 5 years while my right of abode status is still current, would I then be eligible to apply for indefinite leave to stay?

Cheers
Jwana

[JAJ]

Hi JAJ - thanks for that info. Some time ago I did look into becoming a British citizen (by descent) but received a very nice, long letter from the UK embassy here explaining why I could not do so...I was born 11 months too late (or early depending on how you look at it!) as was bron in March 1960 so bad luck for me!

11 months too early ... the cut off date in the law was 7 February 1961.

Where did this date come from? As you know, in the past, British mothers could not normally pass on their nationality. On 8 February 1979 the then Home Secretary (Merlyn Rees) announced that pending the introduction of new legislation (which eventually happened on 1.1.1983), the Home Office would accept applications for registration as a British citizen (or UK & Colonies citizen at the time) from children of British mothers who were aged under 18 at the time.

The reason for the 18 year age limit was that legal discretion to waive the normal requirements for citizenship expired at that age.

Many people missed the deadline through not being aware of the policy. So at a late stage of the 2002 Nationality, Immigration and Asylum Act debate, a decision was taken to "re-open" the Merlyn Rees concession for those who would have been eligible for it at the time but missed out. So the cut off date was set 18 years before that Home Office announcement.

In your case, if you were born in March 1960 you were already over 18 when the 1979 policy change was made, so you were never in line to benefit from it.

So that's the background. It doesn't help you, but might at least let you know you haven't been misinformed and haven't missed out on anything through your own inaction.

But I am still a little confused about what happens to my 'right of abode' if every time my passport expires I have to start the application process over again.

Legally, nothing happens to your Right of Abode (ROA) status. That's something you hold under the law and hasn't been changed.

All the new regulations are concerned with is issuing the passport sticker that's evidence of Right of Abode.

So your ROA status remains valid, you just need to reapply for the sticker. It's equivalent to, for example, Canadian passport holders who need to re-supply new documentation every time they apply for a Canadian passport. Their citizenship doesn't expire in the meantime, but they must go through the hoops to provide evidence of their citizenship.

Also, if I live in the UK for 5 years while my right of abode status is still current, would I then be eligible to apply for indefinite leave to stay?

With Right of Abode, you have UK permanent resident status (the e equivalent of Indefinite Leave to Remain) immediately upon entry to the United Kingdom.

After 5 years residence with Right of Abode, you can apply for naturalisation as a British citizen, like any other migrant.

In case you're not already aware, with your Right of Abode stamp you can:

- live, work and study in the United Kingdom without restriction (although for the first 3 years you may need to pay overseas fees)
- sponsor your husband for settlement : http://www.ukvisas.gov.uk
- use the British/EEA channel at United Kingdom ports of entry
- access social benefits in the UK, if otherwise qualified
- and as noted, become naturalised British after 5 years residence.

[Christophe]

But I am still a little confused about what happens to my 'right of abode' if every time my passport expires I have to start the application process over again. Also, if I live in the UK for 5 years while my right of abode status is still current, would I then be eligible to apply for indefinite leave to stay?

Cheers
Jwana

As JAJ noted above, remember that when you have a certificate of entitlement to the right of abode put in your passport, it is just that - it is a certificate, giving evidence that you have the right of abode in the UK. The certificate itself does not confer the right of abode, which is a status that you hold, and (unless your circumstances change or are changed in some way) you will continue to hold it for the rest of your life.

In fact, the right of abode is the status that British citizens hold (although there are some people, such as yourself, who have the right of abode without being British citizens) - it is not really akin to indefinite leave to remain, which is an immigration status, and people with that status remain subject to immigration control (e.g. they could, in some circumstances, be denied entry or re-entry to the UK or be deported, and the status can be lost if they cease to live in the UK). As a person with the right of abode, you have an absolute right to enter the UK and can have no restrictions, of an immigration nature, on what you may do there or how long you may stay.

But if you wish to enter the UK as a right of abode holder, you must present evidence of that status on entry, by showing a British citizen passport or, in your case, a passport endorsed with a certificate of entitlement. (Simply being in the UK as a person with the right of abode but with an expired passport would not be a problem, as long as you didn't intend to travel outside the country.)

[Jwana]

Hi Guys - thanks for all the detailed info - much appreciated.

JAJ - my reference to the date was from a letter I received in 2005 from the British High Commission in Aust stating that the Nationality, Immigration & Asylum Act passed in the UK in Nov 2002 made provision for those born outside of the UK on or after 8/2/1961 and on or before 31/12/1983 to a mother who was a UK citizen at the time of their birth to apply for British nationality (& receive a British passport). As I was born in March 1960 as you say I was 11 months too late to apply for a British passport but not of course to apply for right of abode status!

I will also be applying for my daughter to accompany me to the UK as a dependant & have been told that as long as the British High Commission receives her application while she is still 17 years of age this should be OK. But I am not clear what happens to her residency status further down the track if I decide to leave the UK for a time (say when she is older - e.g. 19 or 20). Can she apply for British nationality after 5 years of her residing in the UK even if I am not living with her there at that time?

Thanks again for your help - it really is useful to be able to come here & read all the postings.

Jwana

[JAJ]

Hi Guys - thanks for all the detailed info - much appreciated.

JAJ - my reference to the date was from a letter I received in 2005 from the British High Commission in Aust stating that the Nationality, Immigration & Asylum Act passed in the UK in Nov 2002 made provision for those born outside of the UK on or after 8/2/1961 and on or before 31/12/1983 to a mother who was a UK citizen at the time of their birth to apply for British nationality (& receive a British passport). As I was born in March 1960 as you say I was 11 months too late to apply for a British passport but not of course to apply for right of abode status!

All this information is correct except that mother being a UK citizen wasn't enough - normally, mother had to be born or naturalised in the UK, Channel Islands or Isle of Man.

I will also be applying for my daughter to accompany me to the UK as a dependant & have been told that as long as the British High Commission receives her application while she is still 17 years of age this should be OK. But I am not clear what happens to her residency status further down the track if I decide to leave the UK for a time (say when she is older - e.g. 19 or 20). Can she apply for British nationality after 5 years of her residing in the UK even if I am not living with her there at that time?

Presumably you are going to apply for a spouse visa for your husband too? In that case (assuming you've been married over 4 years) it's really important to apply before 1 April 2007 as after this date immediate permanent residence will no longer be available for spouses. Start at http://www.ukvisas.gov.uk

Also, if his passport is going to expire anytime soon - renew it now.

As for your daughter, it will be simplest to get her permanent status immediately. However the exact mechanics will depend on circumstances - for example, is she also the daughter of your husband or someone else?

If she enters the UK as a permanent resident she will be eligible to apply for naturalisation after 5 years (as will you and your husband). Once she is a permanent resident, your circumstances become irrelevant.

One point to be aware of. Should she wish to study full time, she will be liable for overseas student fees until she has clocked up 3 years residence in the UK. Even with permanent status (rules are different to Australia).

One work around may be to study with the Open University or University of London External - these distance learning universities seem to have different rules and as long as you're living in the UK, they don't seem to care how long.
http://www.open.ac.uk
http://www.londonexternal.ac.uk

Also be aware that as Australians living in the UK, you will be entitled to vote even before becoming British citizens. So register to vote as soon as you arrive.

[Jwana]

In that case (assuming you've been married over 4 years) it's really important to apply before 1 April 2007 as after this date immediate permanent residence will no longer be available for spouses. Start at http://www.ukvisas.gov.uk

Hi JAJ - Because I cannot relocate to the UK until later this year I think this means that my husband cannot apply unless we either are going at the same time or I am there first. Also, the British High Commission here has told us that they won't issue settlement visas for my daughter or husband more than around 3 months in advance...so I think we will be caught out by these changes - c'est la vie I guess! But thanks anyway for the warning.

Thanks for the info for my daughter (she is from my first marriage) about study options. I was aware of the 3 year rule re paying i/national student fees but it's good to know there are perhaps some other study options open to her that don't attract/demand such fees.

Cheers
Jwana

[JAJ]

Hi JAJ - Because I cannot relocate to the UK until later this year I think this means that my husband cannot apply unless we either are going at the same time or I am there first. Also, the British High Commission here has told us that they won't issue settlement visas for my daughter or husband more than around 3 months in advance...so I think we will be caught out by these changes - c'est la vie I guess! But thanks anyway for the warning.

I don't believe you have been correctly informed by the British High Commission.

1. As a person who will be admitted for settlement on arrival, you can as far as I know sponsor before physically moving to the UK.

2. If your husband qualifies for an Indefinite Leave to Enter visa, my understanding is that the visa will be valid for the remainder of his passport, not 3 months.

Seek advice from others here who know the Immigration Rules better than I do. You do need to clarify how long you've been married for if you want meaningful information.

Thanks for the info for my daughter (she is from my first marriage)

Regarding your daughter, you have a number of other issues to sort out:

1. You may need to make a separate child visa application (preferably before she turns 18), if she is not the daughter of your husband.

2. Does her other parent have any custodial rights over here (noting the fact that these may not legally exist now she has turned 18)?

I haven't checked the precise rules but generally, you really do not want your daughter on any kind of temporary visa because that may lead to problems getting ILR later on in the UK if she has turned 18 and is no longer "dependent" at that point.