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Morning,

Living in SA. I have been trying to determine if my wife is British by Descent or Otherwise than by Descent. In the hope that she can pass on Citizenship to our two (minors) kids. I am British by Descent.

The facts suggest that she is by Descent only. But her circumstance seems strange.

Both her parents have passed. And what we think happened is that she was born In SA (1976), but taken when she was just weeks old, to Britain. While there her Mom registered her birth in Britain.

Her birth certificate is in the format of a British Birth Certificate, but issued by a consulate here in SA when she was 8 months old, after she was brought back from England.

We can't find any Citizenship registration certificate. I have tried the GRO index and Archives to try track it down. But no luck.

How would I determine if she is a Citizen by Descent only or Otherwise than Descent?

Regards

If she was born is SA, then it’s likely that she is British by descent, unless Section 14(2) applies.

If you or she had spent at least 3 years in the UK prior to the birth of your children, then they are entitled to register under Section 3(2).

Firstly, registration as a British citizen is a different registration and a different process from registration of birth. Don't confuse the two.

Even if she has a British birth certificate, if it states that she was born in South Africa, she does not acquire British citizenship otherwise than by descent fron that detail.

Croch wrote: ↑

Wed Jan 26, 2022 7:51 am

Her birth certificate is in the format of a British Birth Certificate, but issued by a consulate here in SA when she was 8 months old, after she was brought back from England.

Sounds like a consular birth certificate. That essentially imports a foreign birth record into the UK's birth records at GRO. But that does not alter the fact the your wife was born abroad and thus was not a British citizen otherwise than by descent.

Also, be aware that a person who is already a British citizen by descent can't be registered subsequently to make them a British citizen otherwise than by descent.

As @vinny has suggested, provided that one of you have lived in the UK for three continuous years before the birth of your children AND one of that parent's parent was a British citizen otherwise than by descent, you can register your minor children as British citizens under Section 3(2) of the BNA 1981. But that would also make your children British citizens by descent.

Alternatively, if your children are younger than 15, your spouse, children and you could move to the UK and live in the UK for three continuous years, which would make your children eligible for registration under Section 3(5), which would make them British citizens otherwise than by descent.

Both the registration under Section 3(2) suggested by vinny and the registration under Section 3(5) above would have to be done before the children's 18th birthday.

Thank you Vinny and Secret.Simon.

In your opinion, what do you think the chances my children get granted B.Cit. under Section 3(1)?

Is it a 50/50, or a definite no?

My Grandfather was born UK, Portsmouth. My Mom was born in SA and could not pass on Citizenship, because she was female - until recently. Hence my citizenship via UKM.

My wifes Mother was born in London. My wife was born in SA.

If you compare the two family trees. My wife is on the same level as my mother - both born in SA with British born parents. Both are the 1st generation born out of the UK.

That puts our children on the same family tree level as myself. 2nd generation, born in SA. Following this logic, if the prejudice against the female sex has been cast aside. As I got my citizenship (albeit by descent), would that not qualify our kids for the same?

I know there is more to it than that and that the 'when' plays a role too. But I value your views. You guys know your stuff.

Regards

Croch wrote: ↑

Wed Jan 26, 2022 4:12 pm

In your opinion, what do you think the chances my children get granted B.Cit. under Section 3(1)?

I'd say 30-70% or perhaps even 20-80% against your children getting registered under Section 3(1). Keep in mind that "at discretion" does not mean an absence of rules. It simply means the rules as decided by the SSHD of the day or if you can give a strong compelling compassionate case for granting the citizenship.

Croch wrote: ↑

Wed Jan 26, 2022 4:12 pm

the 'when' plays a role too

The biggest possible role and the reason for why I think your children do not qualify.

The fact that you acquired British citizenship via Form UKM immediately tells me that you were born before 1st January 1983. And the reason for both Form UKM and the Romein judgment under which you qualified (you would not qualify under pure Form UKM) is the same, that pre 1983, British fathers could, but British mothers could not, pass their British citizenship to their children born abroad.

Crucially, pre-1983, British citizenship could be extended to children born even to British fathers by descent, if their British citizen father registered their birth with the British diplomatic authorities abroad. However, British mothers by descent could not so register their children as they could not pass on their British citizenship, period.

The Romein judgment therefore makes the assumption that all such British citizen mothers by descent would have so registered their children's birth. Hence, you could register yourself as a British citizen under Form UKM (pure Form UKM would have only provided for registration of children born abroad before 1983 to mothers who were British citizens otherwise than by descent).

Post 1983 (the situation of your children), the situation changes. Now parents of both genders who are British citizens otherwise than by descent can pass on their British citizenship to one generation born abroad automatically. But there is no provision for extending that further by registering the birth of the child with the British diplomatic authorities. In order for children of British citizen by descent parents (of either gender) to acquire British citizenship, they would need to be registered as British citizens under two specific provisions (Sections 3(2) and 3(5) mentioned earlier) before their 18th birthday, provided the British citizen by descent parent (and grandparent, in case of Section 3(2)) meet specific requirements.

So, your situation and your children's situation are not analogous. In a sense, you ironically benefited by the law which discriminated against British citizen mothers giving birth abroad. The removal of that discrimination means that your children need to meet more precise requirements in order to acquire British citizenship.

As I mentioned above, I would recommend the whole family moving to the UK for at least three years and then registering the children under Section 3(5).

As there is a clear pathway for your children to acquire British citizenship by registration (under Section 3(2) at least and possibly under Section 3(5)), an application under Section 3(1) would likely fail.

Keep in mind that in your specific case, registration under both Section 3(1) and 3(2) would lead to the children themselves becoming British citizens by descent. And their children born abroad will not be able to be registered under Section 3(2), because that requires one of the grandparents (your wife or you) to be a British citizen otherwise than by descent. That is why my clear preference for a registration under Section 3(5).