section 11(1) of BNA 1981 - British otherwise than by descenbt

[dr_cox]

Dear All,

I have read and learned a lot from these pages and perused most available government sites and caseworker guidance as well as the original legislative texts.

My wife was born in Pakistan before 1981 to two pakistani nationals (father however lived and worked in the UK at that time and some time before), moved to the UK at 2 months of age, and has in her possession a letter from the home office that given the evidence her father provided she became a british national under section 11(1) under the british nationality act of 1981. She was 5 years of age in 1981. Which in my understanding makes her british "otherwise than by descent". I am EEA citizen and our children were born in the EU after 2015. We tried to apply for passports for our children, one of which was approved and one was denied. On inquiry, they subsequently revoked the approved passport and wrote to us that my wife was british under section 3 and was British by descent. This is obviously factually incorrect as the letter confirming her citizenship clearly states it is section 11(1) she is under.

What am I missing? When filing a complaint about this and pointing out that the refusal was based on the incorrect premise of section 3 instead of 11(1) the passport office just repeated that my wife was British by descent through her parents.

What else can I do or am complete misreading the law and caseworker guidance?

Any help is appreciated.
best wishes,

J.

[vinny]

See also archived Chapter 20: British citizenship "by descent" and "otherwise than by descent"

I think Section 11 just determines Citizens of U.K. and Colonies who are to become British citizens at commencement.

Whereas Section 14 determines who is British by descent.

[dr_cox]

Hi Vinny,

thanks for that. Even though this is complicated, from reading the guidance you referenced I don't think my wife meets the "by descent" criteria and would therefore be "otherwise than by descent". But it is quite a complicated read.

I've found this guidance on gov.uk
https://www.gov.uk/government/publicati ... cquisition

where it states: "As a general principle, people are normally British citizens otherwise than by descent if they are British citizens:
by birth, adoption, registration or naturalisation in the UK or the Falkland Islands before 21 May 2002"

From her letter referencing section 11(1) and not having inherited the citizenship from her pakistani national parents at birth we thought she must fall under one of those as a consequence or am I misunderstanding something completely. Also, why would one caseworker agree to a passport to one of our children and the other would not if there wasn't at least some merit to our claim.

thanks everyone for taking the time.

[contorted_svy]

I wouldn't take the fact that one child got a passport as evidence that your case is solid; a different caseworker may have taken the document at face value. Passports can sometimes be revoked if a caseworker is found to have made a mistake. Your wife needs to prove (I am not sure how) that she was British otherwise than by descent. I don't know enough about the subtleties of the law at the time to express a judgement on this.

[dr_cox]

I understand that. Her father sadly passed away some time ago, so we worked under the assumption that he was pakistani national who worked in the UK from the 60s the he would have had settled status. As my wife then moved to the UK at 2months age she would have lived in the UK more than 5 years in 1983 and who had been allowed in the UK to her Dad's settled status. This would in my understanding mean that she would not have received her citizenship through descent but being someone who had the right to abode and then became a citizen through the BNA of 1981 in a way that would make her "otherwise than by descent".

Since her dad died we don't have access to any more documents than that home office letter.

[dr_cox]

as an addendum:

the document reads: "with reference to the application for the registration your daughter ........., I am directed by the secreteary of state to say that nationality is a matter of law....... . Nevertheless, on the basis of the information and documentary evidence you have furnished, the Secretary of State is satisified for his part that your daughter .... .on .... in ..., Pakistan, was a citizen of the United Kingdom and Colonies immediately before 1 Jan 1983 and on that date, when the British Nationality Act 1981 came into force, your daughter became a British citizen under section 11(1) of that Act. The is letter shoudl suffice to establish your daughter's status for all ordinary purposes."

as it talks about "registration" this is then not automatically by descent but "otherwise than by descent" as outlined in my previous post as people registered before that and then become citizens under the act are "otherwise than by descent".....

I hope this is not too convoluted.

[vinny]

I think that the letter confirms that registration was not required.

What was her father’s occupation at that time and before her birth?

[dr_cox]

Bus driver in permanent employment.

[secret.simon]

I agree with @vinny above that Section 11(1) does not make your wife a British citizen otherwise than by descent. All it means is that your wife had CUKC status and RoA status on 1st January 1983, thus making her a British citizen at commencement of the Act.

It is Section 14 that makes determination whether a person is a British citizen otherwise by descent or not. And that would be based on how your wife acquired CUKC and RoA statuses before 1983.

As she was born outside the UK, there are two possible ways that your wife would have acquired CUKC status and RoA status.

Either her father (because at that time only the father could pass on CUKC status to children born outside the UK) was registered as a British citizen in the UK before her birth, OR,
she was registered or naturalised as a British citizen after moving to the UK.

I'd say that your first port of call would be for your wife to contact the National Archives and see if they have a registration or naturalisation certificate for either your wife herself or her father.

If she was registered herself, that would be the basis for her British citizenship and the determining factor of whether or not she is a British citizen otherwise than by descent.

If she was not registered herself, but got British citizenship because her father was registered or naturalised before her birth, she herself would be a British citizen by descent and unable to pass her British citizenship automatically to her children born outside the UK.

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—

• (i)was a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act (citizenship by descent); or

• (ii)was a person who, under any provision of the British Nationality Acts 1948 to 1965, was deemed for the purposes of the proviso to section 5(1) of the 1948 Act to be a citizen of the United Kingdom and Colonies by descent only, or would have been so deemed if male; or

• (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), ...

I have edited the list of conditions mentioned in Section 14 to list only that would apply to anybody who got British citizenship under Section 11(1), i.e. somebody who became a British citizen at the commencement of the BNA 1981, and which would be relevant to your wife.

as it talks about "registration" this is then not automatically by descent but "otherwise than by descent" as outlined in my previous post as people registered before that and then become citizens under the act are "otherwise than by descent".....

This is incorrect. Section 14 of the BNA 1981 linked above lists many modes of registration, any of which would make such a registered person a British citizen by descent. Not all registered persons are "British citizens otherwise than by descent". All naturalised citizens, on the other hand, are.

EDIT: How old are your daughters? And has your wife spent any period of three continuous years in the UK before their birth?

[dr_cox]

Dear Vinny, Dear secret.simon,

thank you very much for your extensive input. I can follow your explanations and realize that 11(1) does not spell out the descent status. Thanks for pointing out the national archive to us. Will check this.

regarding your questions:
1) I was under the impression from the letter and from what her father had told her before his death when he handed her the document (difficult family dynamics) that she was naturalized. This seems somewhat inaccurate but from what I understand she came to the UK 1976 at 2 months of age and was subsequently registered / naturalized before 1983. This is what she has been told all her life. No additional documents apart from her pakistan issued birth certificate and the letter I quoted.
2) our kids are almost 3 and 7 1/2.
3) my wife grew up in the UK and lived here until she was 33. Then lived with me in Germany.
4) @secret.simon thanks for cleaning up the relevant section even though it somewhat blows my mind. I had come accross some casework guidance that the recommendation was that if in doubt or unclear evidence was only available the decision should be "if in doubt consider them "otherwise than by descent"". But it is probably more clear to experts like yourself. I have spent a few days reading up and researching and am much more informed than before but you seem to need a PhD for this. I truly appreciate your help.
As a side note, my wife phoned the pre application advice line from the passport office today which she wasn't previously aware of. She read out this letter and they said that this would be accepted as proof of registration and treated as naturalisation. Then she was referred to someone else from the complaints department who seemed to not understand the issue altogether and was very rude while doing so. It seems unfortunately that no one quite understands this entirely. All decisions are just decreed without any explanation and reference to her specific case and documents.

Best wishes,

J.

[contorted_svy]

Be aware that the passport helplines aren't answered by caseworkers necessarily and have been known to give incorrect advice. I am sorry that the people in the complaint department weren't professional to your wife.

[secret.simon]

1) I was under the impression from the letter and from what her father had told her before his death when he handed her the document (difficult family dynamics) that she was naturalized. This seems somewhat inaccurate but from what I understand she came to the UK 1976 at 2 months of age and was subsequently registered / naturalized before 1983. This is what she has been told all her life. No additional documents apart from her pakistan issued birth certificate and the letter I quoted.

The National Archives should be able to help with figuring out if her citizenship arises from her father's registration/naturalisation or her own. It is highly unlikely that she would have been naturalised as she would know it. Naturalisation is for adults only, whereas registration can be done for children and adults meeting various different requirements.

You should be able to purchase a copy of the registration or naturalisation certificate from the National Archives for a fee.

If she was registered, it would be necessary to check which section she was registered under as that may decide whether she is a British citizen by descent or otherwise.

2) our kids are almost 3 and 7 1/2.
3) my wife grew up in the UK and lived here until she was 33.

That is good. If she is a British citizen by descent AND her father was registered or naturalised in the UK (i.e. he was a British citizen otherwise than by descent), then the children are entitled (i.e. can't be refused if the conditions are met) to register as British citizens under Section 3(2), because their mother had lived in the UK for at least three continuous years before they were born. You will need their grandfather's (your wife's father's) registration/naturalisation certificate from the National Archives to go down this route.

Note here that registration under Section 3(2) will make them a British citizen by descent themselves and they will not be able to pass their own British citizenship to their children born outside the UK.

The alternative is for the whole family (both parents and the children) to live in the UK for three continuous years. The children will then be eligible to register as British citizens under section 3(5), which will make them British citizens otherwise than by descent and capable of passing British citizenship automatically to one generation born outside the UK.

Has your whole family, including both children, lived for three continuous years within the UK already?

I agree with contorted_svy that the rudeness of the staff at the passport office is reprehensible and unfortunate. The irony is that it is the complaints department that you wish to complain of and who will effectively be marking their own homework if you made a complaint.

The helpline for the UKVI is outsourced and it is likely that the agents answering the phones would not be able to deal with such a complex issue as your wife's, especially given that she and you do not know whether it is she herself or her father who is registered/naturalised as a CUKC before 1983.

[dr_cox]

@secret.simon thanks for that. since the family dynamics are complicated I am not sure if we will be able to get hold of her deceased father‘s certificate.

I thought she could register her children as british irrespective of her father‘s status if she lived here long enough. what am I missing? which form would we use? MN1?

how would the kids be allowed to live in the Uk for 3 years without being citizens?

thanks for the invaluable advice!

best wishes

[secret.simon]

@secret.simon thanks for that. since the family dynamics are complicated I am not sure if we will be able to get hold of her deceased father‘s certificate.

You should be able to purchase a copy of the registration or naturalisation certificate from the National Archives for a fee.

I thought she could register her children as british irrespective of her father‘s status if she lived here long enough. what am I missing? which form would we use? MN1?

If registering on Form MN1 under Section 3(2), there will need to be proof that the parent of the British citizen by descent parent was a British citizen otherwise than by descent. That requirement is irrespective of the length of time the parent has lived in UK.

how would the kids be allowed to live in the Uk for 3 years without being citizens?

Sponsored as dependants on a visa. Note that both parents need to live in the UK with the children. What is your (the other parent's) UK immigration status?

[vinny]

For reference,
Born before 1981
Ability to pass British citizenship on to children born outside of the UK

Some caselaws.

"Section 11(1)" "otherwise than by descent"

"Immigration Act 1971, "section 2(1)(c)" "section 2(1)(a)"

[dr_cox]

addendum: I reread section 3 and understand now that her father‘s status is relevant. sorry. my oversight.

Either her father (because at that time only the father could pass on CUKC status to children born outside the UK) was registered as a British citizen in the UK before her birth, OR,
she was registered or naturalised as a British citizen after moving to the UK.

I'd say that your first port of call would be for your wife to contact the National Archives and see if they have a registration or naturalisation certificate for either your wife herself or her father.

potentially, I found her father‘s certificate but not sure as his name matches but not the city in the UK referenced. but only one match to the name.

1) how to confirm for sure?
2) can one request a copy even if one is not the person himself (deceased)
3) if it is not online, does it mean it doesn‘t exist? (same goes for registration of my wife, no online match)
4) whatbif we can‘t prove her fathers status due to estrangedness + death?

[secret.simon]

potentially, I found her father‘s certificate but not sure as his name matches but not the city in the UK referenced. but only one match to the name.

Submit it as proof to the UKVI when applying for the children to register as British citizens under Section 3(2).

You will also need your wife's birth certificate naming the father and her parents' marriage certificate (and the names across all of them should match), in addition to the children's birth certificates.

3) if it is not online, does it mean it doesn‘t exist? (same goes for registration of my wife, no online match)

Call the National Archives. Hopefully their helpline has not been outsourced.

4) whatbif we can‘t prove her fathers status due to estrangedness + death?

In that case, the only way to get your children British citizenship is to move to the UK en famille and apply for registration under Section 3(5) after three years, before their 18th birthday.

[dr_cox]

Thanks. This gives me something to work with. I’m almost certain that her father is otherwise than by descent as he has no british ancestors and was born abroad. But now we need to prove that. What is madness is that we need the parents amrriage certificate as well? Probably the original to make matters worse? Can I mouth off and question the sanity of all of this? This makes it impossible for almost anyone that is from less than idillic family backgrounds……

But, am I right if we find my wife’s registration certificate in the archives that should be enough on its own?

If we needed to go the family enbloc route, is it better to make the kids dependents on a family visa from my wife’s side or on a skilled healthcare (nhs) work visa from my side?

[vinny]

As she was born outside the UK, there are two possible ways that your wife would have acquired CUKC status and RoA status.

Either her father (because at that time only the father could pass on CUKC status to children born outside the UK) was registered as a British citizen in the UK before her birth, OR,
she was registered or naturalised as a British citizen after moving to the UK.

Is there another possibility, if both father and daughter had not naturalise nor register?

My wife was born in Pakistan before 1981 to two pakistani nationals (father however lived and worked in the UK at that time and some time before), moved to the UK at 2 months of age, and has in her possession a letter from the home office that given the evidence her father provided she became a british national under section 11(1) under the british nationality act of 1981. She was 5 years of age in 1981.

They were both citizens of the United Kingdom and Colonies; and in 1983, perhaps both had the Right of abode under Section 2(1)(c)?

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

• (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

Then is Section 11(1) satisfied?

However, does Section 14(1)(b)(iii)

• (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 M1Immigration 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
• (2) A person born outside the United Kingdom before commencement is not a British citizen “by descent” by virtue of subsection (1)(b) or (e) if his father was at the time of his birth serving outside the United Kingdom—
  
  • (a) in service of a description mentioned in subsection (3), his recruitment for the service in question having taken place in the United Kingdom; or
  • (b) in service under a [F6EU] institution, his recruitment for that service having taken place in a country which at the time of the recruitment was a member of the Communities.
• (3)The descriptions of service referred to in subsection (2) are—
  
  • (a)Crown service under the government of the United Kingdom; and
  • (b)service of any description at any time designated under section 2(3).

surprisingly make both father and daughter British citizens by descent, unless Section 14(2) applies?

[secret.simon]

They were both citizens of the United Kingdom and Colonies; and in 1983, perhaps both had the Right of abode under Section 2(1)(c)?

The question then becomes, how did either father or daughter or both acquire CUKC status in the first place? That would have had to be by registration or naturalisation.

I’m almost certain that her father is otherwise than by descent as he has no british ancestors and was born abroad.

You mean that the father is almost certainly naturalised or registered as a British citizen.

One can be a British citizen otherwise than by descent if one is born in the UK to either at least one British citizen parent or a parent who has ILR or is registered or naturalised in the UK. The key thing is that they had a physical presence in the UK when they acquired British citizenship, not a connection merely through a parent.

But, am I right if we find my wife’s registration certificate in the archives that should be enough on its own?

If your wife has a registration certificate, she's almost certainly a British citizen otherwise than by descent (though we'd have to check which Section she was registered under).

However, if your father-in-law was registered or naturalised before the birth of your wife, she is a British citizen by descent and would not have been eligible to be registered. So it is worth checking if the possible certificate for your father-in-law predates the birth of your wife.

This makes it impossible for almost anyone that is from less than idillic family backgrounds……

It is the responsibility of the applicant to maintain the requisite documentation, if necessary, over decades. And almost every family has drama. Watch almost any soap opera across any culture and family dramas are often at the root of them all.

If we needed to go the family enbloc route, is it better to make the kids dependents on a family visa from my wife’s side or on a skilled healthcare (nhs) work visa from my side?

Non-British citizen children born outside the UK follow the same immigration pathway as the less-privileged parent. If you are on a limited visa and your wife is a British citizen, that means that they are dependent on you for the duration of their and your visa, until all three of you complete three continuous years of residence in the UK, when they become eligible to register as British citizens under Section 3(5).

[vinny]

The question then becomes, how did either father or daughter or both acquire CUKC status in the first place? That would have had to be by registration or naturalisation.

Good question.

[dr_cox]

Ok. Step one is completed. There is a british passport of the father valid at time of my wife’s birth. It states he was a “british subject, citizen of the united kingdom and colonies”

Is that the same as having British nationality at that time?

[secret.simon]

Ok. Step one is completed. There is a british passport of the father valid at time of my wife’s birth. It states he was a “british subject, citizen of the united kingdom and colonies”

Is that the same as having British nationality at that time?

Yes, that means that her father was a CUKC at the time of her birth.

However, note that a passport is not definitive proof of British citizenship, it is only prima facie proof.

Passports can be issued in error, as it was with one of your daughters. An incorrect issue of a passport does not make the person a British citizen.

Crucially a British passport does not state whether a person is a British citizen by descent or otherwise than by descent. You'd have to prove that from first principles (original documents proving your British citizenship).

You will need to find the original documentation of her father's registration or naturalisation certificate.

At least now that you have her father's passport, you can check whether the name on the passport and on the National Archives record match, and whether the dates of the issue of the certificate in the National Archives and of the passport match to within a few months of each other (this of course may not be the case, if the passport has been reissued, for instance, but it is worth a check).

[dr_cox]

Dear All,

the national archive documents online do not match with my father in law as issued after he had already had his passport. Will have to phone them if the original cannot be found but there might still be hope. He definitely did not have any relatives he could have derived his citizenship from but unfortunately that seems to not be enough.

We did find the marriage certificate of my wife's parents.

As a sidenote, my wife has been told that her mom was also already in posession of a British passport at the time of her birth. Do I understand it rightly, that it only matters what her dad's status was at that time and there is no point looking for her mother's naturalization certificate?

Yet another question, my wife's father was born in Pakistan in 1941. Does that have any implications?

Best wishes and many thanks!

[dr_cox]

Hi team,

Any further thoughts on my wife‘s father being born in pakistan in 1941 which at that time was british india?