Certificate of Entitlement to the Right of Abode

[Sha101]

Hi
I have Question any guidance will be much appreciated.

Am I eligible for COE-ROA I was born in India 1994?

grandfather & father status.

1. grandfather born in British India 1931. Registered as a cukc in 1960 in the UK after completing his residential requirement.

2. father born in India 1971. and became cukc by descent at birth.

3. They both had right of abode in the UK under IA1971 as then in force.

grandfather & father was also British subject/commonwealth citizen.

settled in the UK before BNA1981 came in to force.

I believe I qualify for COE-ROA because
I was born to a parent who so "had it" under section 2(1)(b)(ii) of the IA1971as then in force.

Need a reply thank you

[Sha101]

Need help urgent
About to make COE-ROA Application

[vinny]

Significantly, people born from 1983 have the Right of Abode iff they are British.

The only way to acquire the right of abode since 1 Jan 1983 has been by becoming a British citizen.

[secret.simon]

It is highly unlikely that you have Right of Abode.

As mentioned by vinny, for people born after 1st January 1983, the only way to have Right of Abode is by being a British citizen.

Am I eligible for COE-ROA I was born in India 1994?
...
I believe I qualify for COE-ROA because
I was born to a parent who so "had it" under section 2(1)(b)(ii) of the IA1971as then in force.

Section 2 of the Immigration Act 1971 was heavily amended (essentially overwritten) by the British Nationality Act 1981. The text that you quote was removed entirely on 1st January 1983, when the BNA 1981 came into force.

The text of that Section in force at the time of your birth, read;

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

• (a)he is a British citizen; or

• (b)he is a Commonwealth citizen who—
  (i)immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and
  (ii)has not ceased to be a Commonwealth citizen in the meanwhile.

Note that the only exception to non-British citizens holding Right-of-Abode, for Commonwealth citizens, applies to those who already held it before 1983. It therefore can't apply to somebody who wasn't even born at that time.

On 1st January 1983, your father became a British citizen (Section 11(1) of the British Nationality Act 1981) by descent (Section 14(1)(b)(i) & (iii) of that Act).

As your father was a British citizen by descent himself, he could not pass on his British citizenship (the only way to acquire Right-of-Abode after 1st January 1983) automatically to any of his children born outside the UK.

There are some ways for the children of British citizens by descent born abroad to acquire British citizenship, by registration before their 18th birthday. As you were born in 1994, you are well past that requirement.

You are also not eligible for the Ancestry visa, which requires one of your grandparents to have been born in the UK, not merely been a citizen of the UK.

For you to acquire British citizenship and Right-of-Abode, you will need to immigrate to the UK in the usual way (via a work or spouse visa) and apply for ILR and then citizenship in the usual way.

Had your father registered you as a British citizen before your 18th birthday, the answer would have been different. But if you were not so registered, then you have neither British citizenship nor Right-of-Abode.

[Sha101]

Thank you for your reply Secret Simon

understood the amended version of IA1971. as you quoted in detail.

my father was cukc by descent and had right of abode under s. 2(1)(b)(i) of the IA1971 as then in force. this part i do understand no problem.

I'm trying to find a answer to my assumption below, help will be much appreciated.

My father was British subject/commonwealth citizen.

Not me.

British subject /commonwealth citizen
meant the same thing according to BNA1948.

my father was settled in the UK before BNA1981 came in to force.

he could not of had ROA under s. 2(1)(b) only, of s. 14(b)(iii) of the BNA1981. Because commonwealth citizen also had ROA. therefore he to be treated as having ROA more than one provision of the IA1971 as then in force. It is therefore I should be entitle to ROA under s. 2(1)(a of the IA1971 as amended.

[secret.simon]

That your father had Right-of-Abode (RoA) is not in dispute.

Whether he was a CUKC/British citizen or a Commonwealth citizen is immaterial.

After 1st January 1983, he could not pass on Right-of-Abode to any children of his born abroad , because on that date, the law changed (and the Section that you keep quoting was rewritten), so that, from then on, the only way for anybody to acquire Right-of-Abode after that date was by becoming a British citizen.

So, children of Commonwealth citizens with RoA born after that day could not acquire RoA, unless they were born in the UK (in which case, they would be British citizens and thus have RoA).

The only way anybody born after that date (such as you) can acquire RoA is by acquiring British citizenship.

The only people who have RoA without holding British citizenship need to have acquired it before 1983 (which means at the very minimum, having been born before that date and meeting the requirements of Section 2 of the Immigration 1971 as then in force). There are a small number of such people, but they will all be 39 years or older at the very least.

And they can't pass RoA to their children except those born within the UK.

I will repeat it again; anybody born after 1st January 1983 can be either a British citizen (including RoA) or not a British citizen (and not hold RoA). They cannot be "not a British citizen" AND hold RoA.

To be exempt from this limitation, the person needs to have been born before 1983.

[Sha101]

Thank you for your insight secret Simon.

But I am scratching my head still.

I would like to share a tribunal case similar to my circumstances. Please have a read.

https://docs.google.com/document/d/1NL9 ... ue&sd=true

although this case is unreported. But
How was it possible for judge to come to that conclusion.

[secret.simon]

I would like to share a tribunal case similar to my circumstances. Please have a read.

https://docs.google.com/document/d/1NL9 ... ue&sd=true

Apparently, Google Docs could not authenticate me. If the document is your own copy, could you publish it on a public site that can be accessed without authentication?

[Sha101]

Secret Simon try to open it now. if it still doesn't open please have patience I'll try to send it by different format.



https://docs.google.com/document/d/1NL9 ... ue&sd=true

[Sha101]

Hi
Secret Simon
Try this link

https://www.bailii.org/uk/cases/UKAITUR ... 972008.doc

[secret.simon]

A very interesting judgement and one that I would be very interested in learning about, as it contains some interesting interpretation of nationality law. I would be very interested in finding out if it was appealed or not.

In particular, Paragraph 12 has some interesting observations.

"It was clear to me that the sponsor [ ] was recognised by the Home Office as having citizenship of the United Kingdom and colonies by descent under Section 5.1 of the British Nationality Act 1948 since he was born after his father’s registration as a citizen of the United Kingdom and colonies. On this evidence alone the Immigration Judge should have allowed the appeal as it was patently obvious that the sponsor was British by descent and therefore could pass on his nationality to his son, the appellant."

I have a feeling that the judge giving this judgment made the same error as the publishers of the Wicked Bible.

@vinny, could you have a look at the judgment and give us your thoughts?

[Sha101]

Hi secret Simon

I don't think so the finding of the judge was appealed by the Home office. if it did it would've gone to a judicial review,
and become a case law. Home office don't like that, majority of the cases they contest do not succeed on the point of Law. If not mistaken over 77% of cases they've lost last published.

I think the core finding of the judge is the paragraph 9

9. The Immigration Judge also had before him a copy of [ ] Bangladeshi passport issued in Sylhet on 7 August 1975; his father’s name was given as [ ]. [ ] date of birth was given as 16 May 1970. The passport at page 10 had an entry certificate stamp dated 19 August 1976 for settlement/accompanying mother to join father. In script it said “EC issued in respect of [ ] son of
[ ] 19 August 1976”. Page 11 of the same passport shows the arrival of
[ ] to the UK on 17 January 1977 when he was given leave to enter the UK for an indefinite period.

I guess different rule applied to commonwealth citizen who were settled at relevant time presumably before BNA1981 came in to effect.

[Sha101]

Need thoughts on this topic please?

Secret Simon

Vinny

as it will help me and others in this situation.

[vinny]

https://www.bailii.org/uk/cases/UKAITUR ... 972008.doc

12. …. On this evidence alone the Immigration Judge should have allowed the appeal as it was patently obvious that the sponsor was British by descent and therefore could pass on his nationality to his son, the appellant.

Seems inconsistent with 2(1)

(a) is a British citizen otherwise than by descent; or

[secret.simon]

I think the judgement is wrong and may almost certainly have been reversed on appeal.

However, as you have a judgement that so closely mirrors your circumstance, I suggest that you make an application for a CoE-RoA, along with a copy of the judgment or referencing the judgment. I fully expect you to be refused (and if you were to make such an application, you should fully expect to lose your application fees).

But who knows, you may create a new precedent, if you are granted a CoE-RoA.

[Sha101]

I think the judgement is wrong and may almost certainly have been reversed on appeal.

However, as you have a judgement that so closely mirrors your circumstance, I suggest that you make an application for a CoE-RoA, along with a copy of the judgment or referencing the judgment. I fully expect you to be refused (and if you were to make such an application, you should fully expect to lose your application fees).

But who knows, you may create a new precedent, if you are granted a CoE-RoA.

Ah interesting secret Simon if it was appealed I'll try to locate it, and let you know if I'm successful.

But I'm more interested in the paragraph 9, of the judgment

Being cukc by descent subsequently British citizen by descent itself is not enough.

Certain people who were cukc by descent but did not have right of abode in the UK.

therefore it's important to scrutinize the immigration status of the appellants father at relevant time.

Position of commonwealth citizen settled in the UK before BNA1981 claimed to be partial through their ancestral connection.

[secret.simon]

Forgive me for mixing metaphors, but the bee in your bonnet about Commonwealth citizens with RoA is a red herring.

Pre-1983, a Commonwealth citizen was the citizen of either the United Kingdom and Colonies (CUKC) or of a Commonwealth country. So, all CUKCs (and now, all British nationals) are Commonwealth citizens. And yet, British citizens by descent can't pass on their British citizenship or RoA status, even though they are Commonwealth citizens as well. And some categories of British nationals (who are all Commonwealth citizens) who are not British citizens cannot pass on their British nationality to their children at all, even if they are born in the UK.

Your grandfather became a CUKC by registration in the UK. By doing so, he lost his Indian citizenship. Thus, (unless he has some other Commonwealth citizenship), after his registration as a CUKC, his only claim to Commonwealth citizenship was his CUKC status.

Under Indian law as I understand it from Google search, your father would have had both Indian and CUKC status, but would have lost it automatically at the age of 18 if he did not renounce his CUKC status. Again, his only claim to Commonwealth citizenship would have been through his CUKC status after that.

In any case, the ability for anybody born after 1st January 1983 to acquire RoA was restricted by Section 2 of the Immigration Act 1971 being overwritten by the British Nationality Act 1981. After that date, the only way to acquire RoA after that date was by acquiring British citizenship. Those who had Commonwealth citizenship and had acquired RoA before that date were allowed to retain it. But no new acquisition of Commonwealth citizenship + RoA, except by becoming a British citizen, is possible after that date. And your birth in 1994 precludes you from having acquired it before that date.

Simply put, assuming that you have Indian citizenship, you would be considered a Commonwealth citizen if you move to the UK on a non-visit visa and you will have the right to vote because of that status. Indeed, a Commonwealth citizen with ILR has almost all the same rights in the UK as a British citizen. But the only way for you to acquire RoA (because of the date of your birth) is by acquiring British citizenship.

I will end by referring you to two posts written by me a while ago; this one links to a couple of articles by the Home Office (primarily for their staff) that lists the various historical changes to immigration and nationality law, while this one is a more recent post about British citizenship by descent and ability to pass on British citizenship.

[Sha101]

Thank you secret Simon your research is truly commendable.

I would appreciate your thoughts on the link below on a different forum. JAJ has also commented.

https://britishexpats.com/forum/citizen ... nt-799455/

[secret.simon]

Given that the posts on the other forum are from 2013, are you inviting me to comment on them as a test?

[Sha101]

Yes please

[secret.simon]

Then I respectfully decline.

Instead, I suggest that you test the much more immediate question of you having RoA by making an application for a CoE-RoA.

[Sha101]

secret Simon
you've been very helpful.

Thank you.

[vinny]

Thank you secret Simon your research is truly commendable.

I would appreciate your thoughts on the link below on a different forum. JAJ has also commented.

https://britishexpats.com/forum/citizen ... nt-799455/

In the same letter it states "Mother is a British citizen "otherwise than by descent" as she held the Right of Abode under section 2 1b i AND section 2 1d of the Immigration Act 1971 and is therefore beyond the scope of section 14 of the British Nationality Act 1981.

It’s interesting. Perhaps explore this further? If it also applies to your father, then you may also be British?

See also Secretary Of State For Home Department v Ullah [2001] EWCA Civ 659 (10 May 2001) for a discussion between British citizenship otherwise by descent and by descent.

[secret.simon]

Thank you secret Simon your research is truly commendable.

I would appreciate your thoughts on the link below on a different forum. JAJ has also commented.

https://britishexpats.com/forum/citizen ... nt-799455/

In the same letter it states "Mother is a British citizen "otherwise than by descent" as she held the Right of Abode under section 2 1b i AND section 2 1d of the Immigration Act 1971 and is therefore beyond the scope of section 14 of the British Nationality Act 1981.

It’s interesting. Perhaps explore this further? If it also applies to your father, then you may also be British?

The same principles are unlikely to apply to the OP.

Section 2(i)(d) of the old Section 2 of the Immigration Act 1971 specifically required the parent to have been born in the UK. In the OP's case, none of the OP's ancestors were born in the UK.

See also Secretary Of State For Home Department v Ullah [2001] EWCA Civ 659 (10 May 2001) for a discussion between British citizenship otherwise by descent and by descent.

Thank you for that link, @vinny. Very interesting read.

[Sha101]

Thank you secret Simon your research is truly commendable.

I would appreciate your thoughts on the link below on a different forum. JAJ has also commented.

https://britishexpats.com/forum/citizen ... nt-799455/

In the same letter it states "Mother is a British citizen "otherwise than by descent" as she held the Right of Abode under section 2 1b i AND section 2 1d of the Immigration Act 1971 and is therefore beyond the scope of section 14 of the British Nationality Act 1981.

It’s interesting. Perhaps explore this further? If it also applies to your father, then you may also be British?

The same principles are unlikely to apply to the OP.

Section 2(i)(d) of the old Section 2 of the Immigration Act 1971 specifically required the parent to have been born in the UK. In the OP's case, none of the OP's ancestors were born in the UK.

See also Secretary Of State For Home Department v Ullah [2001] EWCA Civ 659 (10 May 2001) for a discussion between British citizenship otherwise by descent and by descent.

Thank you for that link, @vinny. Very interesting read.

Interesting?

Secret Simon and Vinny I would be greatfull for your opinion on this.

I'm going to "quote" from a letter by senior caseworker at Liverpool nationality department, he states and gives his reasons to refuse CoE RoA reconsideration.

"Your Paternal grandfather, [••••], was born in Sylhet, East Pakistan in 1927. He registered as a CUKC under section 6(1) of the British Nationality Act 1948 in the United Kingdom on13 July 1964. This registration gave him Right of Abode in the UK under section 2(1)(a) of the Immigration Act 1971"

"Your father was also born outside the United Kingdom. At birth he was a CUKC by descent under section 5(1) of the British Nationality Act 1948 [ with ROA under sections 2(1)(b)(i) and 2(1)(d) of the Immigration Act 1971 ]. On 01 January 1983 your father became a British Citizen. Section 14(1)(b)(i) confirms British Citizenship by descent."

"Your father was a British Citizen by descent at the time of your birth, therefore you do not have any entitlement to Right of Abode in the UK."

"I have fully reviewed the consideration given to the application and the decision made on it and I am satisfied that the correct procedure were followed and the correct decision taken to refuse."

In brackets above contradicts.
While the Mother of the 2 boys received a Letter from the same Nationality department confirming by applying the same principle of section 2(1)(b)(i) and 2(1)(d) of the IA 1971. Saying therefore you are otherwise than by descent.