BN inconsistent interpretation - someone wrong!!

[Matt_W]

Hi, I have two brothers who both applied for a British passport in 1995 or there abouts, one was successful the other unsuccessful. We all have the same parents, both brothers were born in Australia, the successful one in 1967 and unsuccessful on in 1971. Neither had spent more than 6 months in the UK before their applications, nor were they married or in defacto relationships, nor adopted to other families, just a normal family. The claim was based on our believe that our father is British.

The unsuccessful brother received a letter stating that my father was British by Decent according to the section 12(2) of the 1948 act - essentially he became a British Citizen because his father was a British Citizen.

My father was born 1933 in Simla, India as his father was posted to the RAF head quarters in India (Delhi), it was too hot in Delhi so he was born in the cool climate. This posting ended in 1936 and my father and the rest of his UK born family (sister and mother) returned to the UK, to be posted in London.

Obviously it seems odd that one of my brothers was successful and the other not but I also find it hard to believe that my father was reliant on his father for citizenship in 1949 as stated in the letter from the passport office.

1. His parents (my grandparents) were born in the UK, as were many generations before them.
2. His father was an officer in the RAF
3. Posted to India in 1932 and returning to the UK 1936 his father not taking another overseas posting until 1950, my father continued his schooling in the UK.
4. His Birth was registered with the RAF within weeks of his Birth.
5. He has no claims to Indian citizenship and has never had any citizenship other than British citizenship.
6. He was 33 when he moved to Australia where he has lived ever since.

By the time the 1948 Act came into effect he was 15 years old and had been living in the UK for nearly 12 successive years with his family, surely he would have claims to British Citizenship at this stage that went beyond that of his relation with his father? I would have thought he would have had equal rights to his sister who was born in 1931 just prior to their posting to India.

I guess the question is, based on the evidence that I have provide, should my father be considered as British "by descent" or "otherwise by descent"?

Any advice is much appreciated.

Regards,

Matt

[VR]

Matt_W,

Having read your post, I share the incredible feeling.In England many things are baffling. Especially laws and their interpretation. Take for instance Sec 140 of the Laspo has given the Border Agency the power to interpret laws in their own way and set their own rules.

Under the circumstances the best course of action for you will be to hire a good immigration lawyer , give dna evidence of all the brothers and make a case using the successful brothers' filing as a precedent.

No matter how much we discuss and debate this in the end the case workers' interpretation until it is convincingly turned around (by a reputed solicitor) is what will stand.
cheers
vr

[Matt_W]

I'd have thought that DNA would be a little extreme.

Section 12(8) of the 1948 Act.

12(8) A male (obvious oversight) who becomes a citizen of the United Kingdom and Colonies by virtue only of subsection (2), (4) or (6) of this section shall be deemed for the purposes of the proviso to subsection (1) of section five of this Act to be a citizen of the United Kingdom and Colonies by descent only.

Now what does "deemed for the purposes of the proviso to" mean. My interpretation is that it can only mean that this is an additional exclusion. Suggesting they should not be interpreted as by descent.