MN1 section 3(2) eligibility?

[complexmic]

I have the similar situation as illustrated below:
_____________________________
Looking into applying for British citizenship for my daughter born in 2016 in Hong Kong using the MN1 form.
I myself hold British citizenship by descent from my father who was naturalized under the British Nationality (Hong Kong) Act 1997.
I used to study in the UK for 4 years from 2004 - 2007 so should my daughter be eligible to apply for citizenship under section 3(2) given I did not spend more than 270 days abroad within 3 years?
_____________________________

Some said that it would be eligible for cases like this while when I looked into the small prints section 3(2) contained the following paragraph:
"the mother or father of the parent in question (the child’s grandparent) became or but for their death would have become, a British citizen otherwise than by descent either:
o on 1 January 1983
o at the time of the parent’s birth"

- Which is not true in our case as my father obtained citizenship in 1997 via the British Nationality (Hong Kong) Act 1997. Therefore I would like to ask if section 3(2) is still applicable to my kid? Thanks in advance!

[vinny]

Prior to your father registering, I’m guessing he was a British Dependent Territories citizen otherwise than by descent? Then 2(1)

(b) a British citizen otherwise than by descent,

apples?

Moreover, if you were automatically a British citizen by descent, then it’s more than likely that he was a British citizen otherwise than by descent.

[secret.simon]

Prior to your father registering, I’m guessing he was a British Dependent Territories citizen otherwise than by descent? Then 2(1)

(b) a British citizen otherwise than by descent,

apples?

My reading differs from yours on this point, @vinny.

The way I interpret that section, the "by descent" or "otherwise than by descent" BDTC status of the father was carried over to the BC status of the father when the father was registered under that Act. But that does not retrospectively make him a BC otherwise than by descent at the time of the OP's birth, which is a requirement of Section 3(2).

To the OP; I would suggest that the best way to proceed is to move to the UK with the child and the other parent and reside in the UK for at least three years (on a visa commensurate with the status of the other parent). That will engage Section 3(5), which does not have any requirements of the status of your father, is an entitlement to register and would make your child a British citizen otherwise than by descent in their own right.

Alternatively, you can apply under Section 3(1) and make a case in a cover letter that as you meet all the requirements of Section 3(2) except the requirements as regards your father, the Secretary of State should exercise his discretion to register the child as a British citizen. Keep in mind that such an application is discretionary (not an entitlement) and (as you were a British citizen at the time of the birth of the child), the child will be a British citizen by descent themselves.

Also see this thread about complications that can arise if multiple generations of a family born abroad are registered as British citizens and the legal complications, which is why I recommend moving to the UK and being registered under Section 3(5).