Immigrationboards.com

Hi all

Thanks in advanced. My mother has been informed that she does indeed qualify for a British passport but we are battling to get clarity on whether she will be classified as British by decent or British by other than decent. Some facts below.


Mother - Born 13 May 1957, Kenya - Currently lives in South Africa with a South African passport.
Her mom - Born 14 Oct 1934, Nairobi Kenya - Holds both British & South African passport.
Her dad - Born 23rd Nov 1929, Umtali Rhodesia - Holds British passport (passed away Dec 2019) lived in the UK for five years after my mom was born.
Grandparents - Grandparents on both sides were born in the UK.

Any thoughts on whether you think my mother is British by decent or British by other than decent would be appreciated. Xxxxx has confirmed my mother has a good chance of qualifying based on the fact that Kenya was a special case.

My mother currently holds an expired CUKC passport.

Thanks!

It is quite likely that your mother is a British citizen, based on her birth as a CUKC in a British colony or protectorate (Kenya) and her Right of Abode (ROA) by descent from her British-born grandparents.

As her ROA was by descent, her British citizenship (after 1983) is also by descent, under Section 14(1)(b)(iii) of the British Nationality Act 1981;

14 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

The relevant Section 2 of the Immigration Act 1971 then in force states;

2 Statement of right of abode, and related amendments as to citizenship by registration

(1)A person is under this Act to have the right of abode in the United Kingdom if—

(a)he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or

(b)he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—

• (i)then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or

• (ii)had been born to or legally adopted by a parent who at the time of that birth or adoption so had it; or

(c)he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more ; or

(d)he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.

If the UKM question is about yourself, the first question is whether you were born before 1983. If you were born on or after 1st January 1983, Form UKM is irrelevant to you.

If born before that date, then to the best of my knowledge, you would not be eligible. Form UKM requires either one of your parents or one of your grand-parents to have been born in the UK. To the best of my knowledge, it does not allow an indefinite descent in either the paternal nor the maternal (via the Romein judgment) lines.

As an aside, precisely how is/was Kenya a special case?

@Secret Simon: Thank you so much for the detailed reply.

I was born after 1983, does this make any difference to the case? Correct, I am trying to determine if I have any route to British Citizenship though my mother.

I found a similar post of someone who was found British by other than decent based on new 2015 ROA instructions. Some highlighted points below, not sure if this helps at all

"Do you, or anyone one else, agree with us that we should question the NS statement? He had ROA by virtue of being a BC prior to 1983? And then is BC otherwise than by descent?"

"with the new 2015 ROA instructions that have appeared, that if he has ROA only through his father. However,
if before the 1981 BNA came into force, he had ROA because of CUKC citizenship and s4 of the 1948 BNA, he should be a citizen otherwise than by descent."

This means that their father, born in the UK Colony of Kenya in Nairobi in 1957, with UK born parents, was a Citizen Otherwise Than By Descent, not By Descent which is what the Home Office's first determination was.

Regards