Determination of BC - Born & Adopted Abroad in 1950/1953

[CR001]

Hi Moderators/Amber/John etc.

Really sorry for this long post but thought it best to put as much detail in as I can and I have researched and posted before but not had a response.

This query is for my mother, who is currently on a UK Ancestry visa. My mother is very poorly and with 9 months to go on her Ancestral Visa and limited funds (for extension or ILR), we are trying to resolve her situation.

My mother was legally adopted in 1953 in South Africa by a British woman and a South African man (married). My mother and her adopted mother lived in the UK circa 1955 to 1958 and my mother traveled to the UK on my grandmother’s British passport at that time. She has received some correspondence from the DWP in 2010 in her maiden name (adopted surname), relating to winter fuel allowance when she turned 60. My mother has been married since 1971 and been outside of the UK until October 2009, so we are completely perplexed where DWP got this detail from. The only thing we can think of is that she was Registered as British when living in the UK in the 1950s.

Historical facts that we have for my mother etc are :

Mother – Born in South Africa in 1950 and placed in foster care in 1951 with my grandparents before the legal adoption. Adoption completed in July 1953 and we have all these records including the changed birth certificate.

Adoptive Mother (my grandmother) – born in the UK in 1921 to a British mother (unmarried). I have these birth certificates already. Adoptive mother (my grandmother) moved to South Africa circa after the second world war. British citizenship was NOT renounced.

Adoptive Father (my grandfather) – born in South Africa in 1904 to British parents – I have my great grandfathers’ British birth certificate (born 1872 in London) and trying to get the date and certificate of his marriage but believe it to be circa 1902 and the wedding took place in London before they moved to South Africa in circa 1903.

The records from South Africa from so far back are virtually non existent and the BHC in Pretoria have not kept records dating back to then of British birth registrations and told us all a few years ago that records were probably sent to the UK.

Would my South African born grandfather have been British by Descent as he was born to British parents?

What we are ultimately trying to establish is if my mother is British and entitled to apply directly for a British passport by virtue of being legally adopted and would have been British from birth if her adoptive mother had given birth to her. Also, the fact that her grandparents along both adopted maternal and paternal lines are British might have some significance. Or would she need to naturalise?

The other aspect we have found is the ‘double descent’ citizenship but I don’t quite understand all the jargon used in this section of the research I have done.

I have suggested to my mother that we apply for ‘Determination of Nationality Status’ and submit all the documents and details that we have with a covering letter OR apply directly for a passport with all the documents and details we have.

Suggestions / comments very welcome.

Thanks

Char

[Just Wondering]

Having had an initial look at the information, it is extremely complicated. It makes it even more difficult that there is little information on your grandfather and whether he was registered as a British citizen at birth. If he wasn't then he was a British subject, and that starts to get complicated in the 1950s as South Africa developed its own nationality laws and then onward went to become a republic. Have you tried to get his birth certificate and marriage certificate from the GRO (https://www.gov.uk/order-copy-birth-dea ... ertificate)

Compounding that is the clear line you do have of your grandmother, but there is a question of whether adopted children can claim citizenship through their mother now. There seems to be allowances for if a mother is adopted but it is not clear if the child is adopted.

Also, considering UKBA issued an Ancestry Visa to your mother, I would presume that it was concluded she did not have the right to abode which all British citizens have.

The issue with applying for a passport is that if she's not eligible then she loses the fee. If cash is tight then this is probably not the best option. However, she'll have a definitive outcome if she gets a determination for 94 quid. If she's not a citizen then she'll have to go through the naturalization process (874 quid). If she is a British citizen then it's just a passport (100 quid or so).

So, my suggestion is to call the GRO to see if you can get a copy of the registration (if there is one); and apply to GRO to get a copy of your grandfather's birth certificate. With the additional information, apply for a determination.

[Amber]

See also, Automatic acquisition - persons born before 1 January 1983 (click)

[CR001]

Thanks Amber and Just Wondering.

I have done extensive research on this and the information is so vast and confusing. My grandfather was born in South Africa about a year after his British parents arrived there, so on this basis, I am going to guess that he was British by Descent as born to parents who were both British. I have my grandparents marriage certificate already, as they were married in South Africa.

South Africa only became a Republic in 1961 and in 1950, they were still the Union of South Africa and a British Territory etc and I am looking into the relevant laws etc at that time.

The most interesting fact is that we think my mother was registered when she came to the UK with my grandmother in 1955 and lived here for a few years, which is what we think has prompted the letter from the DWP in my mothers maiden name for the winter fuel allowance once she turned 60. Also, I am not sure what the requirements were back then in order for my grandmother to include my mother on her British passport, which is how my mother came to the UK in 1955.

I have the marriage, birth and death certificates along both lines going back to the 1800's already. The death certificates were recently obtained from South Africa through the Ancestors website and all clearly state country of birth as England.

Re the Ancestry Visa, the process for thinking outside the box by staff in the BHC in South Africa is appalling and I know many people who are British by descent, but have been issued Ancestry Visas, as that is what was applied for.

Would the GRO have birth certificates of births registered at BHC in South Africa??

We don't have the funds for ILR, visa extension or Naturalisation at present and I am fearful that my mother will have to leave when her visa expires when she is so ill.

Amber, I have read through your link before (last year sometime) and have printed most of it, but I just can't seem to get my head around all the jargon. We have the money to apply on form NS, so perhaps we should do that, all they can say is yes or no.

What would Right of Abode give her in terms of remaining in the UK?? i.e. benefits etc.

[Just Wondering]

It is clear that you've done a lot of research on this topic. It's vast and complicated.

GRO should at least have the birth and death certificates for the colonies before their independence. I would also imagine they would have the registration documents as well from the 1950s. Alternatively, your mom can contact the DWP to see where they got her information from - or write to the Freedom of Information officer for DWP. If you can find registration, that's heaps easier.

Right of abode is the right to live permanently in the UK without any immigration restrictions. So, as long as the benefit is for a UK resident (and not for a UK citizen), I would imagine she would be entitled to benefits.



Your grandmother would have been a British subject by virtue of being born in the United Kingdom (s.1(1)(a) British Nationality and Status of Aliens Act 1914). Your grandfather also would have been a British subject (s. 2(1) British Nationality and Status of Aliens Act 1943).

Things start getting slightly trickier in 1948 because of the introduction of citizenship of certain Commonwealth countries and the British Nationality Act 1948. However, I still think both of your grandparents could be British citizens. If section 12 of the 1948 can be read as gender neutral, your grandmother would have been a UK citizen under section 12(1). Your grandfather would have also satisfied section 12(2) and would have also been a CUKC as he was a British subject at the time of the Act and his father was born in the United Kingdom.

Having thought about it a bit more, I reckon that as an alternative to a determination, your mother may be able to register as a British Citizen under section 4C BNA 1981 as a few years ago they got rid "born after 1961" bit. It's 80 quid and I reckon she might qualify:

Looking at Chapter 7... http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
Persons are entitled to registration under s.4C of the British Nationality Act 1981 if
(1) they were born before 1 January 1983 (your mother was born in 1950 and legally adopted in 1953); and

(2A)at some time before 1 January 1983 have become citizens of the United Kingdom and Colonies under one of the following provisions, if that section had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father...section 5 (see section 5(1) BNA 1948 - your grandmother was a British subject by birth in the United Kingdom and under section 12(1) BNA 1948 a citizen) or
(2B) at some time before 1 January 1983 have become citizens of the United Kingdom and Colonies under one of the following provisions, if that section had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and women had been able to transmit British subject status in the same way as men before 1/1/1949...12(5), of the British Nationality Act 1948. (A woman who was a British subject immediately before the date of the commencement of this Act and has before that date been married to a person who becomes, or would but for his death have become, a citizen of the United Kingdom and Colonies by virtue of any of the foregoing provisions of this section shall on that date herself become such a citizen. Your grandmother was a British subject who at the commencement of the Act was married to a person who becomes a citizen of the UK and colonies by virtue of section 12(2)). and

(3) had they become citizens of the United Kingdom and Colonies as described above, they would, immediately before 1 January 1983, have had the right of abode in the United Kingdom by virtue of s.2 of the Immigration Act 1971 as then in force (see section 2(1)(b)(ii) - she would have been a citizen of the UKC legally adopted by a parent who had citizenship at the time of adoption and your grandmother had been born to a parent who at the time of that birth would have had citizenship by being born in the UK).

(4) I assume your mother would meet the good character requirement.

If you have the relevant birth certificates (mother, grandmother, great grandmother), adoption certificate and marriage certificates then this might also be a good route. If she's automatically acquired citizenship based on the documents she provides with the application, they return the fee as well according to Chapter 7.

[CR001]

Thanks Just Wondering.

I have now read all the info you have provided and the UKM form and guide. I think this is absolutely the way to go as we would ultimately get the same sort of response and determination. The guide for UKM is the only place that I have found reference to an applicants adoption status in the simplest of phrase - Section 1 Personal Information :

Your name at birth must be given on the application form, for identity purposes, but may be omitted from your certificate of British citizenship if you have a special reason for requesting this - for example because you were adopted.......

Do you think UKM is the better route rather than Form NS? They both seem to have the same sort of outcome.

Many thanks again and whichever way we apply, I will quote the references you have given in a covering letter.

Char

[Just Wondering]

If I was in your mother's situation, I would choose to apply for registration under s.4C BNA 1981 via Form UKM. This is because for the less than the price of determination, she will know the outcome. If she is already a BC, she gets her 80 quid back (if found to be automatically entitled on the paperwork provided, and you indicate she has all relevant document save for proof of registration). If she's not automatically a BC but she may be entitled to register as a BC via her mother then she will be registered (subject to taking the oath) - this will not be done with determination. If she's not automatically a BC and is not entitled to register, she will be told.

However, I have no first hand experience for this type of situation. So, unfortunately, I cannot guarantee that the position I put forward would be successful. Whilst I would take this route, you and your mom need to be prepared in case it comes back as a no - and the only route is settlement, which I know you want to avoid.

I really hope that whichever route you decide to take that you get the outcome you need.

[CR001]

Thank you very much Just Wondering.

I think UKM is the right way to go as if she is a BC, we get our money back and if not and eligble, she will be Registered and if not eligble, we will prepare for a visa extension or ILR etc.

Will update as we know.

Char

[JAJ]

If she traveled on her (adoptive) mother's British passport in the 1950s, she should, in theory at least, have been registered as a Citizen of the U.K. & Colonies at the time. Do you have a copy of the passport available? If so, what does it say.

If she was never registered as a U.K. & Colonies citizen then it might be possible to construe the application for her to have a British passport as an application (at the time) for U.K. & Colonies citizenship under the then section 7 of the British Nationality Act 1948. If such an application can be construed, and has never been formally refused, it can still be decided now under the law that applied at the time.

[CR001]

If she was never registered as a U.K. & Colonies citizen then it might be possible to construe the application for her to have a British passport as an application (at the time) for U.K. & Colonies citizenship under the then section 7 of the British Nationality Act 1948. If such an application can be construed, and has never been formally refused, it can still be decided now under the law that applied at the time.

Please could you explain the above quote more as I don't quite understand what you mean by

might be possible to construe the application for her to have a British passport as an application (at the time)

.

Thank you very much JAJ. Unfortunately we do not have the passport anymore as my grandmother passed away a number of years ago, but my mother definitely would have come the British passports as children did not have their own passports back in those days and my grandmother was NOT a South African citizen at that time.

Speaking to my mother a moment ago, we were wondering if my mother was registered at the BHC in South Africa after the adoption took place in 1953 and included on my grandmothers British passport (which we know happened), would the GRO here have a record of the 'birth' registration from overseas posts?? It would seem to make sense to apply for my mothers 'birth' certificate (following the adoption) and if there is one, then obviously my mother can apply directly for a passport or would we still have to do a UKM application?

[JAJ]

From Chapter 6 of the Home Office Nationality Instructions:

6.3.9
Cases sometimes come to light where, due to official error, people have been consularly registered while ineligible for such registration or wrongly issued with British passports or certificates of entitlement to the right of abode. As a result they might have lost age or time limited entitlements to citizenship. So that they are not disadvantaged by the official error we should be ready in such cases to construe the application as an undetermined application for citizenship and process it accordingly.

Prior to 1983, British High Commissioners had the right to register persons as Citizens of the U.K. & Colonies. These applications did not need to be approved by the Home Secretary. However, it is not clear what has happened to the pre-1983 records of registrations as CUKC in British High Commissions. The records could still be at the relevant High Commissions, at the Foreign Office in London, sent to the National Archives, or lost/destroyed.

Perhaps you could use the services of an immigration solicitor, but you'd need one competent and willing to do original research on an incomplete picture. Not all solicitors do this kind of work.