MN1-child born abroad: First child BC successful, Second child BC unsuccessful

[kenkan8]

Dear All,

First of all, I would like to say thank you to this forum and it helped a lot on my previous applications.
Now, I am frustrated and confused. Hopefully can get some advice, please.

Background:
Grandfather: Naturalised in 1995
Father: BC otherwise by descent (naturalised together with grandfather at age of 11, same year in 1995)
Mother: not BC
Both father and mother were born outside the UK and now living outside the UK.
Both children were born outside the UK and now living outside the UK.

NOW:
- First child (<11) granted citizenship under MN1 section 3(2). We applied the BC in 2018.
- second child (<11) refused the citizenship application. We applied also under same MN1 section 3(2) in 2020.

Reason:
Grandfather was not a BC at the time of father's birth.

Queries:
(1) When I applied for the second child, I noticed such requirement. Not sure whether this requirement exists when I applied for my first child BC in 2018.
(2) Anyone experienced this before? first child application was successful, second child's application was unsuccessful.
(3) I want to apply for reconsideration. Does this qualify for discretion by Home Secretary as elder child application was resulted successful? Any solid reason can be mentioned? (As we are now living abroad and we have no solid plan about when to move back to the UK at this moment, although we wanted to). It definitely affects my family's plan.
(4) If my first child citizenship was granted by mistake, would the reconsideration of my second child affect the first child citizenship decision?

Hope the above information is not too long and I look forward to your reply, thank you in advance!!

Best regards,
Father and Mother

[vinny]

If father is British otherwise than by descent, then why isn’t father’s child automatically British by descent?

[kenkan8]

If father is British otherwise than by descent, then why isn’t father’s child automatically British by descent?

Thank you for your reply.

Sorry, I made a typo on the background. Father is BC by descent, not "otherwise by descent".
I cannot edit the original post.

[vinny]

Isn’t 3(3) The requirements referred to in subsection (2) are—

(b) that the father or mother of the parent in question—

(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question; or

(ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and

also satisfiable, etc?

[kenkan8]

Isn’t 3(3) The requirements referred to in subsection (2) are—

(b) that the father or mother of the parent in question—

(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question; or

(ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and

also satisfiable, etc?

Your quote is correct and my 2nd child's application failed because of this subsection (2)(b):
It requires: Parent of the father (i.e. Grandfather of the my child) was a BC otherwise than by descent, at the time of birth of the parent.
However, for my case, when father was born, grandfather is not yet a BC otherwise than by descent. Grandfather was naturalised years after father was born. I guess the other requirements are satisfiable except to this (2)(b).

Like I mentioned in the background, I noticed that we failed to this requirement when we were making the application for my 2nd child. However, our first child has passed with application and now currently a BC. We decided to give it a try for the 2nd child as well because 1st child application was successful. Thus, we are not sure if this requirement was newly added after my 1st child's application back in 2018.

[vinny]

(b) that the father or mother of the parent in question—

(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question; or

(ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and

(b) is satisfiable if (b)(i) or b(ii) is satisfiable.

Isn't (b)(ii) satisfiable?

If b(ii) is satisfiable, then there's no requirement for b(i) to be satisfied because of the "or" between b(i), b(ii). "

or" is different from "and".

[kenkan8]

(b) that the father or mother of the parent in question—

(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question; or

(ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and

(b) is satisfiable if (b)(i) or b(ii) is satisfiable.

Isn't (b)(ii) satisfiable?

If b(ii) is satisfiable, then there's no requirement for b(i) to be satisfied because of the "or" between b(i), b(ii). "

or" is different from "and".

Understand and thank your for your clarification.
To my understanding, (b)(ii) is not satisfiable also. Grandfather was not born in the UK, grandfather's parents neither. Therefore grandfather is not a BC otherwise than by descent at commencement
Back in 1995, he naturalised when he was at the age of 40+.

[kenkan8]

(b) that the father or mother of the parent in question—

(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question; or

(ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and

(b) is satisfiable if (b)(i) or b(ii) is satisfiable.

Isn't (b)(ii) satisfiable?

If b(ii) is satisfiable, then there's no requirement for b(i) to be satisfied because of the "or" between b(i), b(ii). "

or" is different from "and".

Understand and thank your for your clarication.
To my understanding, (b)(ii) is not satisfiable also. Grandfather was not born in the UK, grandfather's parents neither. Therefore grandfather is not a BC otherwise than by descent at commencement
Back in 1995, he naturalised when he was at the age of 40+.

[vinny]

I think your Grandfather became a British citizen otherwise than by descent at commencement under Section 11?

“ commencement ”, without more, means the commencement of this Act;

[kenkan8]

I think Grandfather became a British citizen otherwise than by descent at commencement under Section 11?

It looks make sense under section 11, hopefully!

To supplement, grandfather naturalised in 1995 through British Nationality (Hong Kong) Act 1990 before the handover of Hong Kong in 1997.

Hong Kong was a colony at that time, therefore grandfather qualified as BC otherwise by descent at commencement under section 11?

What is your thought? Anyway, thank you so much for your prompt and quick reference. So knowledgeable!
However, do you think (3)(2)(b)(ii) is part of MN1? MN1 guide never mentioned such commencement thing.

Section 3(2)

A child will qualify under this section if:

• they were born outside the UK
• either of the child’s parents was a British citizen by descent at the time of
the child’s birth
• the mother or father of that parent (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

The British citizen by descent parent must have lived in the UK (or, if the child was
born on or after 21 May 2002, in a British overseas territory) for a continuous period
of 3 years at any time before the child’s birth. During that period they should not
have absences exceeding 270 days. The application must be made whilst the child
is under 18 years of age.

The 3-year residence requirement for the parent does not need to be met if the child
is stateless.

[vinny]

Section 3(2)

A child will qualify under this section if:

• they were born outside the UK
• either of the child’s parents was a British citizen by descent at the time of
the child’s birth
• the mother or father of that parent (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

The British citizen by descent parent must have lived in the UK (or, if the child was
born on or after 21 May 2002, in a British overseas territory) for a continuous period
of 3 years at any time before the child’s birth. During that period they should not
have absences exceeding 270 days. The application must be made whilst the child
is under 18 years of age.

The 3-year residence requirement for the parent does not need to be met if the child
is stateless.

"1 January 1983" is the date of the commencement of the 1981 British Nationality Act.

[kenkan8]

Understood.

Therefore, grandfather is not a BC otherwise by descent at commencement under section 11 too.

Under s.11(1), a person automatically became a British citizen on 1 January
1983 if immediately before that date he or she:
• was a citizen of the United Kingdom and Colonies; and
• had the right of abode in the United Kingdom under s.2 of the Immigration Act
1971 as then in force

On that date, grandfather has no right of abode in the UK I believe, although Hong Kong was the colony of the UK. Therefore it appears with the British Nationality (Hong Kong) Act 1990 for naturalisation and the British National Overseas status in British Nationality (Hong Kong)1997.

[vinny]

Oops!! Sorry. Yes. You’re right. I had misread the years. Grandfather became British after commencement. Therefore, both b(i) and b(ii) fail.

[vinny]

Under what section of the Hong Kong Act were you naturalised or registered?

[kenkan8]

For grandfather, under Hong Kong Act 1990 section 1(1).

For father, registered as minor of grandfather.

Not sure whether grandfather has right to abode in the UK at commencement date, under Hong Kong colony. I will try to research.

However, how to explain why my first child applied successfully through same section 3(2)?

I am still brainstorming how to deal with the reconsideration

[vinny]

If father is British otherwise than by descent, then why isn’t father’s child automatically British by descent?

Thank you for your reply.

Sorry, I made a typo on the background. Father is BC by descent, not "otherwise by descent".
I cannot edit the original post.

Unfortunately, British citizen “by descent” is correct.

[vinny]

The original version of Section 3(3) appears to be the same as the current version. So, it appears that the first child's registration under Section 3(2) was in error?

[kenkan8]

i kept the old MN1 guide. Such grandfather requirement was not highlighted in the old version of guide.

Anyone has experience how to convince for reconsideration?

[secret.simon]

Did the first child reside in the UK for any length of time? Did the second child so reside? Were both applications made from within the UK or were both the applications made from abroad?

Also, if you have a look at the registration certificate for the first child, does it state (typically towards the bottom left hand side) which section of the British Nationality Act was it issued under (it may have been issued under a different section to Section 3(2) that you submitted it under)?

I personally do not think that you have grounds for reconsideration. You are essentially arguing that the Home Office made an error in case of one person and should repeat the same error for another person.

The good news is that even if the registration certificate was issued in error for the first child, provided there was no deception or incorrect information in the application from your side, that child will retain their British citizenship. They will of course be a British citizen by descent themselves and in their case will not be able to pass on their British citizenship to their child under Section 3(2), unless their children (your grandchildren) are born in the UK.

[kenkan8]

Both children do not reside in the UK, both applications were made outside UK.

First child citizenship granted under section 3(2), listed on the certificate.

Thank you for your opinion.

[secret.simon]

If you are so inclined, apply for reconsideration.

But I would not expect a positive outcome. The second child does not meet the requirements of the law (nor did the first, by definition, but as they were issued a registration certificate in error, they have successfully acquired British citizenship).

The application could be considered under Section 3(1), at discretion of the SSHD/Home Office, but the general guidelines for that are that "it is in the child’s best interests to be registered and the child has a strong connection with the UK". See from Page 27 of the Registration of children as British citizens caseworker guidance.

Alternatively, you can look at moving to the UK along with the other parent and child for at least three years. After residing in the UK for at least three years with both parents (including the British citizen by descent parent), the second child could be registered as a British citizen under Section 3(5), where there is no requirement about the status of the grandparents.

[kenkan8]

Yes, I will have a deep thought about to apply for reconsideration or not.

I studied too under section 3(1) discretion, seems not so applicable to my case.

If I failed to appeal, I will consider section 3(5), to reside in the UK, thank you very much.

[vinny]

Moreover, Registration under Section 3(5) grants British citizenship otherwise than by descent.