MN1 Section 3(5) - parents' citizenship requirement

[evoman]

I am applying for citizenship for my daughter using form MN1 and am not sure what section to use. Here is the background:

I am a British citizen by descent through the 'adult children of British mothers' option. As a result, I was not a citizen until relatively recently, but had the right to citizenship for much longer (I only had to register as a citizen). My daughter was born in the USA and I was not British at the time of her birth. We have been living in the UK for 6 years and I have been a British citizen for 5 of those years. I have been told by both a very good immigration lawyer and the Home Office help line that she can apply under section 3(5), which requires she was born abroad to British parents, but the law seems to imply that you actually had to be a citizen at the time of the birth. (and I have received wrong advice several times from the HO helpline, so I don't believe them!).

Has anyone had a similar problem (seems like a very special situation that no one can quite resolve!), or anyone with success or failure under sections 3(5) or 3(1)?

Thanks,

[JAJ]

The law doesn't "imply" that the parent has to be British when the child is born (for section 3(5) registration) ... it insists on it.

So section 3(5) is a non-starter but section 3(1) ought to be possible ... does the child have ILR?

Perhaps look at the Nationality Instructions:
http://www.ukba.homeoffice.gov.uk/polic ... ns/nivol1/

[evoman]

thanks for the quick response

my son and I are citizens (he was born in the UK) and my wife and daughter have ILR. both are applying for citizenship, my wife through her status as a resident (she came on a work visa, not as a spouse).

the lawyer did their ILR applications and I explained the case clearly to the HO helpline, and both insisted on section 3(5), but that obviously does not jibe with the letter of the law. we can do section 3(1), but I don't know the current policies with regard to discretionary cases, so it worries me!

[John]

You should not be concerned by the discretionary nature of an application under section 3(1). There is no reason to think that the application will be declined.

Also evoman do appreciate that JAJ is an acknowledged expert as regards Citizenship law. There is no reason to doubt what he has posted about section 3(5), saying it is not applicable. You were not British when that child was born .... end of story!

[evoman]

thanks so much for the quick response! the law indeed seems clear, but we had a problem with the discretionary part several years ago when first tried to register our daughter. discretionary has that littlrnit that is disconnected from the written law. but I imagine it'll go fine this time!

thanks again to both moderators, your input has really helped clarify the situation and makes us feel much better.

[John]

That problem in the past, how old was the child at the time, and how long had they been living in the UK when that application was made?

[evoman]

That problem in the past, how old was the child at the time, and how long had they been living in the UK when that application was made?

I'd have to check for sure, but I believe it was 3-4 years ago and she was 3-4 years old (unfortunately, I had to make an emergency trip in the middle of this and don't have the paperwork here!). She was denied because my wife did not have ILR at the time - she was on a work permit. The decision letter stated that they had a policy in place not to give a child citizenship under the discretionary section is both parents did not have permanent right to live in the UK, despite the fact that her father and brother were citizens.

Does it matter now that she had been denied previously? Her mother now has ILR and is also applying for citizenship.
Thanks.

[JAJ]

That problem in the past, how old was the child at the time, and how long had they been living in the UK when that application was made?

I'd have to check for sure, but I believe it was 3-4 years ago and she was 3-4 years old (unfortunately, I had to make an emergency trip in the middle of this and don't have the paperwork here!). She was denied because my wife did not have ILR at the time - she was on a work permit. The decision letter stated that they had a policy in place not to give a child citizenship under the discretionary section is both parents did not have permanent right to live in the UK, despite the fact that her father and brother were citizens.

Does it matter now that she had been denied previously? Her mother now has ILR and is also applying for citizenship.
Thanks.

If the child has ILR and the mother has ILR (you tell us the mother's status - but not the child's!), there should be no problem.

Children under the age of 10 are not assessed for "good character".

Also, her section 3(1) registration will, in this situation, give British citizenship otherwise than by descent.