Kayalami, other Moderators,
I would be grateful for your opinion on the following case (this is correspondence between a friend, born in 1978 and a commonwealth citizen (xxx) and his immigration adviser (yyy) in connection with the possibility of an application under the UK(M) rules. My friend's younger brother was born in 1984 and is British, my friend is not:
Dear xxx,
Thank you for you e-mail. I would like you to be clear on the distinction so I will try to explain further. The difference between your case and your younger brother's is that you were born prior to
01/01/1983 (the commencement date for the British Nationality Act 1981).
Persons born overseas to British mother's prior to this date can only register as a British Citizen if they are not only born between the appropriate dates and would also have become a Citizen of the UK & Colonies if females had been able to pass on citizenship at that time, but also that the applicant would have personally acquired the right of abode. Your brother is treated in a different way by the legislation because he is born after your mother would have been reclassified as a British Citizen (otherwise than by decent) on 01/01/1983. This in effect meant that your mother was able to pass on her citizenship as a British Citizen which she had not been able to do for you while she was a Citizen of the UK & Colonies.
I hope this clarifies the position for you.
Best regards,
yyy
-----Original Message-----
From: xxx
To: yyy
Subject: RE: British Nationality matters
Dear yyy,
Many thanks for your opinion below. I am still not exactly clear what the distcintion is between my brother's and my case, bearing in mind that the aim of the legislation was to allow women to pass on nationality to their offspring (to remove the gender bias).
Many thanks and best regards
xxx
-----Original Message-----
From: yyy[
To: xxx
Subject: British Nationality matters
Dear xxx,
Many thanks for your recent e-mail and for previously sending your papers to us in order that we may assess your eligibility to apply for British citizenship on the basis of your late mother being a British Citizen with the right of abode at the time of her passing. Please accept our apologies that we have been unable to reply sooner.
To register as a British Citizen pursuant to the provisions of Section 4C British Nationality Act 1981 (as inserted by Section 13 Nationality, Immigration & Asylum Act 2002) we must be able to evidence that you satisfy three grounds; namely:
1. You were born after 07/02/1961 but before 01/01/1983; and
2. You were born to a mother who was a citizen of the United Kingdom and Colonies at the time and you would have been a Citizen of the United Kingdom and Colonies by descent if it had been possible for women to pass on citizenship of the United Kingdom and Colonies to their children in the same way as men could; and
3. Had you been a citizen of the United Kingdom and Colonies, you would have had the right of abode in the United Kingdom and would have become a British citizen on 1 January 1983.
On assessing the documents that you kindly provided we can observe that you do meet the requirements of points 1 and 2 above. However, we are regrettably of the opinion that had you been a Citizen of the UK & Colonies and would not have become a British Citizen on 01/01/1983.
This is because your mother appears to have obtained the right of abode via Section 2(1)(c) Immigration Act 1971 as a result of her having spent 5-years residence in the UK prior to 01/01/1983. For you to have had the right of abode in the UK you would have had to have satisfied one of the following criteria:
a) If you were a Citizen of the UK & Colonies who had that Citizenship by his birth, adoption, naturalisation or registration in the UK; or
b) You were a Citizen of the UK & Colonies born to or legally adopted by a parent who was a Citizen of the UK & Colonies at the time of your birth or adoption and the parent either -
(i) then had that citizenship by his birth adoption, naturalisation, or registration in the UK; or
(ii)has been born or legally adopted by a parent who at the time of that birth so had it; or
c) You are a citizen of the UK & Colonies who has at any time been settled in the UK and Islands and had at that time (and while such a
citizen) been ordinarily there for the last 5-years or more; or
d) You are a Commonwealth Citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the UK and Colonies by his birth in the UK or in any of the Islands.
It is notable from the above that your mother obtained the right of abode via 5-years residence in the UK and this does not enable you to acquire the right of abode as would have been the case for example if your mother, father of one of your grandparents had been born, adopted, registered or naturalised in the UK. For you to gain the right of abode through 5-years residence in the UK it is you who must have resided in the UK for 5-years not your mother. If it so happens that one of your grandparents were born, adopted, registered or naturalised in the UK please inform us of such circumstances as this may ultimately alter our advice.
It can be noted from the above that although you would have been able to derive Citizenship of the UK & Colonies from your mother at the time of your birth (had it been possible in law for mothers to pass on this status to their children at that time) you would not have had the right of abode in the UK and thus regrettably you are not in our opinion eligible to register under the new provisions for persons born to British Mother's introduced by the Nationality, Immigration & Asylum Act 2002. You younger brother would however, have been able to acquire British Citizenship by decent from your mother as prior to his birth your mother would have been reclassified as a British Citizen otherwise than by decent and thus eligible to pass on British Citizenship by decent to her children born overseas after 01/01/1983.
It appears that you have been a victim of what some describe as nonsensical legislation and we can only apologise that we are unable to provide you with more welcome news on this occasion. It would appear that should you wish to live and work in the UK you may have to look towards qualifying for entry to the UK under the current immigration rules.
We trust that the above is clear. However, should you require any further assistance please do not hesitate to contact us.
Kind regards,
yyy
Do you agree with the above, if yes, my friend would not be eligible to obatin British Citizenship.
Thank you very much,
Smit
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