UK Citizenship by descent

[SarahN]

I'm hoping that someone can clarify whether or not I have the right to apply for British Citizenship.

My father was born in Cape Town, South Africa in 1918 to U.S. citizens who were missionaries in Angola. Because South Africa was a dominion of the British Empire at the time of his birth, he could have obtained a U.K. passport at any time, but did not do so (he is now deceased.)

Is it possible for me (a U.S. citizen and resident) to get U.K. citizenship by descent, given that my father was born in what was then the U.K.?

Thanks for any insights!

[asim72]

In appears that your father was a British Subject at the time of his birth.

(Do not confuse British Subject of 1918 with British Subjects of present day, as the definition is totally changed.)

It also appears that he did not become a British Citizen on 1st Jan 1983. In other words, due to the British Nationality act which came in force on 1st Jan 1983, he lost his British Subject status.

Did he live and/or gained citizenship of any other country apart from usa at any time in life? When and where were you born? When and where was your mother born?

[SarahN]

I was afraid of that... Although he and my mother spent several years in the U.K. in the 1970s, he never did get a British passport. The only citizenship he had was USA. My mother was born in the USA as was I, so no help there.

Thanks for your post, even if it's bad news!

[JAJ]

Father was a British subject by birth, assuming parents were not diplomats.

In 1949, South African citizenship was introduced and most British subjects born in South Africa became South African citizens.

If by some chance your father did not become a South African citizen in 1949, he would have become a citizen of the United Kingdom and Colonies (CUKC). This is where it would be interesting, as if he was a CUKC who lived in Britain for 5 years prior to 1983, and had a permanent resident permit, he would probably have become a British citizen on 1.1.1983. Otherwise he would most likely have become a British Overseas citizen on the same date. In this situation, whether you would be British or British Overseas yourself depends on when you were born.

Although, it's probable he would have become a South African citizen in 1949. To be certain, you would need to find out whether he was deemed a "Union national" (a kind of local citizenship that South Africa introduced in the 1920s, within the framework of British nationality) and that would require you to understand the pre-1949 South African nationality legislation. Perhaps find a good South African immigration lawyer to research it for you?

If he did become South African again it's not clear whether you would be South African if you were never registered as a citizen. Again - it can depend on when you were born.
http://www.unhcr.org/refworld/publisher ... 088,0.html

[SarahN]

This is certainly complex-- I feel justified in being confused when I was trying to figure this out before posting my question! I was born in 1952, so 3 years after the 1949 act. I am quite sure my birth would not have been registered in Britain or South Africa. But, reading the Act, I'm unclear whether my father would have automatically become a CUKC citizen or a British Overseas citizen. Whichever would have happened by default, I would think, since I doubt if he took steps one way or the other. By 1949 he was in the U.S. and never went back to South Africa.

Do you know what the default situation would have been if no action was taken by the person involved?

Thanks for your help.

[JAJ]

In the late 1940s, the different Commonwealth countries all agreed that the common nationality of British subject would be split out into a citizenship for each then Dominion. It was intended that each British subject should become a citizen of at least one Dominion, normally the one he or she was most closely connected with.

Since the Dominions did not enact identical legislation, there were some British subjects who did not acquire citizenship of the Dominion they were most closely connected to. The United Kingdom agreed to "mop-up" these cases by granting them United Kingdom & Colonies citizenship (which was put into effect, except for India and Pakistan).

So the question is did your father, as a British subject born in South Africa, become a South African citizen on September 2, 1949? The 1949 South African citizenship legislation says: (or at least appears to say, since the source is not an official one)

------------

2. Persons born in the Union or South-West Africa prior to date of commencement of this Act.

(1)Every person born in the Union prior to the date of commencement of this Act who was or is, in terms of sub-section (3) of this section or section thirteen,deemed to have been, a Union national immediately prior to that date, shall be a South African citizen.

------------


So as mentioned previously, the question is was your father a "Union national" in 1949. South Africa had introduced this status in the 1920s as a kind of local nationality. If your father was still a Union national in 1949, then it appears that he would have become a South African citizen.

On the other hand, if he had ceased to be a "Union national" under South African law (for example, by virtue of long residence outside South Africa), he would not have become a South African citizen in 1949. However, he would have kept his British nationality as far as the United Kingdom was concerned and would have fallen into one of the residual scenarios, as a British subject connected only with South Africa who did not become a South African citizen in 1949 and instead would have become a Citizen of the United Kingdom and Colonies.

How interested are you in finding out more about this?

[asim72]

Very interesting JAJ.

My eyes have opened up to how complex nationality law can be. After looking at your posts and looking at the flow charts of nationality, it seems the whole case rests on whether OP's father became South African citizen by default or not. If he did not, then OP will have right of abode.

[JAJ]

Very interesting JAJ.

My eyes have opened up to how complex nationality law can be. After looking at your posts and looking at the flow charts of nationality, it seems the whole case rests on whether OP's father became South African citizen by default or not. If he did not, then OP will have right of abode.

If the father by some chance did NOT become a South African in 1949, then he'd have become a Citizen of the U.K. & Colonies. The original poster, (SarahN) would have become a CUKC by descent when she was born in 1952, assuming her parents were married.

HOWEVER, I see no information to suggest that she would have acquired a Right of Abode in the United Kingdom before 1983 (unless there's a U.K. born grandparent we've not been told about, or if she was the wife of someone with right of abode). So she would most likely be a British Overseas citizen in that case.

By the way, assuming her parents were married before 1949, then her mother would have become a British subject by marriage and she could either have become South African or CUKC in 1949.

[SarahN]

Do you know how one could find out whether my father became a South African citizen and/or whether he was a Union National? Would there be some documentation on this or some clear rules on who was and who wasn't? I'm very interested in finding out and getting some clarity on the situation (if clarity is possible at this stage!)

As for my original question, it does indeed look as though I probably can't qualify for citizenship by descent.

I think, after reading over the regulations many times, that he would have become a British Overseas Citizen and: "A British Overseas citizen does not have an automatic right to live in the United Kingdom." I was hoping to get this right, so I guess I'm out of luck.

The UK passport agency site states that a person whose father was born in a British colony AND had the right of abode in the UK can apply for a UK passport. It doesn't look as though he would have had that right of abode.

As a footnote, my parents were married in 1942, so as you say my mother would have become a British subject by marriage, which would have appealed to her as a life-long Anglophile. But all of my grandparents were born in the US, so no UK citizenship help in that direction.

However, my husband is an EU citizen... would that help?

[asim72]

JAJ is going to give an expert opinion. But as he has already said, the answer lies in south african nationality laws. If according to south arfican laws your father became a south african citizen by default, even when he was not in south africa, then its end of road. If somehow he did not become south african citizen by default, because he was out of south africa or some other reason when the law came into force, then he kept his cukc citizenship, and you have right of abode in the UK. Right of abode gives you (almost) same rights a British citizen to live and work in uk.

On the other side, because your husband is eu citizen, then you have right to live and work in uk under EC free movement directive, as long as your husband is living and working (or exercising treaty rights in some other way) in UK. This is not the full detail. But if you let this forum know what you plan, then someone might give more info.

Do you and your husband plan to live and work in UK?

Also looking at the eu/ec sections of this website will give you some insight into how this eu/ec system works.

[SarahN]

I would be happy with the right of abode, but I don't think I can get it, unless I am misinterpreting the laws (a definite possibility!)

We are retired and just want to live, not work, in the UK. We will remain officially US residents, for various reasons, so will not be eligible for any kind of social benefits in the UK. That is fine. You'd think we'd be the ideal UK residents, just bringing in money and not taking any out of the system... but it's never that easy.

Believe it or not, my husband's EU country (which shall remain nameless) refused me nationality, although I have been married to one of its citizens for over 30 years. Why? Because we had never lived in that country as residents.

I would just like to be able to spend time in the UK without having to go back to the US at the end of 6 months, then wait 6 months before being able come back again. Freedom of movement is what I'm after. My husband and children are all dual citizens and can go wherever whenever, but I can't. Seems a bit unfair...

[asim72]

Sadly countries issue citizenships according to their law, and not due to moral arguments of being married to a citizen of that country for x amount of years.

If you want to move to UK with your husband, then its a very simple and totally free process.

You will have to apply for eea family permit from form USA. It is issued free of charge. Once you have that, you can move to UK. Now as long as your are a "self sufficient" person you can live in UK for an indefinite period. You will be a "self sufficient" person because you will rely either on your funds or your husband's funds who himself will be a self sufficient person.

When you have arrived in UK, it is advisable to apply for residence documentaion. You will apply on form eea2 and your husband applies on eea1. This kind of clears all doubts and is a proof that you and your husband have established that both of you are self sufficient. After 5 years in UK, you can apply for further documents which will grant you "permanent residence" in UK. After you have been in UK for 6 years you can apply to be naturalised as British citizen. Apart from naturalisation, all applications will be totally free of charge and fairly simple.

For now, you just need to apply for "EEA family permit" for yourself only. Once you have landed in UK, come back to this forum and ask what you need to do next.

[Brigid from Ireland]

Hi SarahN,

It is to your advantage if your husband is an EU citizen of a country other than the UK.
The reason being that if he is from somewhere in the EU other than the UK, there is no difficulty with you both residing in the UK. You can travel with him to the UK, bring your passport and marriage cert. So long as the husband is with you (or he is in the UK and you are travelling to join him), you have entry to the UK with no problem, and you can both stay as long as you have sufficient funds.

[asim72]

Hi SarahN,

It is to your advantage if your husband is an EU citizen of a country other than the UK.
The reason being that if he is from somewhere in the EU other than the UK, there is no difficulty with you both residing in the UK. You can travel with him to the UK, bring your passport and marriage cert. So long as the husband is with you (or he is in the UK and you are travelling to join him), you have entry to the UK with no problem, and you can both stay as long as you have sufficient funds.

Airlines flying out of usa may not know this, and won't let her board the aircraft. EEA permit is the answer. It is issued easily, quickly and free of charge.

[Jambo]

The OP is US citizen. The airline won't be looking for a visa.

[asim72]

Correcto:

[SarahN]

Hello Brigid,

So long as the husband is with you (or he is in the UK and you are travelling to join him), you have entry to the UK with no problem, and you can both stay as long as you have sufficient funds.

I could really stay indefinitely? I ask because in, for example, France (where I am at the moment) I can only stay three months on my own and six months if I'm with my husband. But that is it. Never longer than 6 months and then I have to be away an equivalent amount of time before coming back again.

As a US citizen I get 6 months in the UK, rather than the 3 months I get in the rest of the EU, but didn't realize I could extend that with the presence of my husband.

I hope you're right.

[asim72]

Your husband must be french citizen then. If your husband was citizen of any other eu/ec country (apart from france) then you will be dealt with under eu/ec immigration laws which are generous and easy.

If you move to UK with your husband who is citizen of any eu/ec country (but not UK) then you can stay indefinitely.

In simple terms, living in your husband's home country is dealt with under your husband's home country's immigration laws, which tend to be much more stricter and difficult.

On the other hand if you live in a eu/ec country which is not your husband's home country then you are dealt with under eu/ec laws. eu/ec laws are easier, generous, and all applications are free of charge.

I totally overlooked the fact that you are a usa citizen and do not need a visa to come to UK.

So, I will amend my advice.

You and your husband need to pack your bags, sit on a plane, and move to UK. As long as your husband is a self sufficient person, or working or studying, you can stay in UK for indefinite period. It will make your life easy if, once you are in UK, your husband applies on form eea1 and you apply on form eea2 for the confirmation to be placed in your passports. After 5 years both of you will gain "permanent residence" and won't even need to meet the requirement of self sufficient, work or study. After 5 years in UK, you can also apply for confirmation of "permanent residence" to be placed on your passport. And yes, all applications are free of charge.

[SarahN]

No, he is not a French citizen, but we do regularly spend time in France. The law I referred to is what I thought were my rights as the spouse of an EU citizen without applying for any visa. It is extremely inconvenient to apply for a visa, since personal appearance is now mandatory and my home in the U.S. is 1,800 MILES from the French (or other European) consulate-- ha ha. I would make the trip once if it could get me a visa valid for 5 years or so, but to have to do this every year is ridiculous. We go back to the U.S. at least once a year, but would like to be able to spend more than 6 months in the EU/UK at a stretch without running into trouble and I was hoping that my father's South Africa birth could solve that problem, but it seems not.

The more I read, however, the more I am convinced that if we are traveling together and if I have a copy of our marriage certificate with me, there should be no problem. And possibly, if I also have a copy of my husband's passport I can cross borders alone as well. Next time I will make sure I have all that documentation with me and hope for the best.

Thanks for everyone's help!

Sarah

[Brigid from Ireland]

Hi Sarah,

It is slightly complicated, because there are a great many different rules under which you may be entitled to reside in an EU country. Different conditions attach to each rule, so knowing which rule gives you greater rights involves knowing a lot about your life.

For example, if your husband has a residence in France, then your right to live there is under French law. But if he then moved from France to the UK to work, your right to live in the UK is as the wife of a migrant worker, under EU rules. It is the migrant worker rule that you want to trigger, so basically the husband needs to move from the EU country where he has residence (possibly France, based on what you say) and he needs to work for about six months in a different EU country. It is migration (moving country) and working that confers rights, so he needs to do both. He can work even if he is over 66 years, and he only needs to work for a few hours a week. Once he is a migrant worker, you have full rights to reside with him, and to travel to join him as you please.

[SarahN]

So there is no way to spend more than 6 months in the UK without setting up an official residence? As I said, for a number of practical reasons we need to stay residents of the U.S. We are not and never have been residents of any European country in the official sense.

[Jambo]

I will try to clarify it a bit.

I could really stay indefinitely? I ask because in, for example, France (where I am at the moment) I can only stay three months on my own and six months if I'm with my husband. But that is it. Never longer than 6 months and then I have to be away an equivalent amount of time before coming back again.

You don't need to leave France. As a spouse of EEA citizen (who is not French), you can stay as long as you have sufficient funds to maintain yourself without social benefits. Why do you think you need to leave France after 6 months and why do you think you need to stay away for another 6 months?

It is extremely inconvenient to apply for a visa, since personal appearance is now mandatory and my home in the U.S. is 1,800 MILES from the French (or other European) consulate-- ha ha

You can apply for the visa from any consulate on the planet. You don't need to use one in the US. In practice, you don't need a visa as long as you travel with your husband and have a marriage certificate as proof. Some countries require EEA nationals to register if they stay longer than 3 months but this is just an administrative process (normally going to a local office, filling in a form, paying a small fee and obtaining a Residence Card).

So there is no way to spend more than 6 months in the UK without setting up an official residence? As I said, for a number of practical reasons we need to stay residents of the U.S. We are not and never have been residents of any European country in the official sense.

What do you mean by setting up an official residence? You can move with your EEA husband to the UK and stay there as long as you wish. At the border you will get a 6 months stamp but even when it expires you still have legal right to reside in the UK with your EEA husband. Residence rights under EEA regulations are obtained automatically and no permission from the authorities is needed (expect registration is some of the EU counties. UK doesn't require registration).

[JAJ]

We are retired and just want to live, not work, in the UK. We will remain officially US residents, for various reasons, so will not be eligible for any kind of social benefits in the UK. That is fine. You'd think we'd be the ideal UK residents, just bringing in money and not taking any out of the system... but it's never that easy.

As U.S. citizens you have to file for federal taxes on worldwide income no matter where you live. As for whether you maintain residence in a particular U.S. state, that's up to the law of that state.

Concerning the United Kingdom, if you spend too much time in the U.K. then you become tax resident whether you like it or not. See:
http://www.hmrc.gov.uk/international/residence.htm

Believe it or not, my husband's EU country (which shall remain nameless) refused me nationality, although I have been married to one of its citizens for over 30 years. Why? Because we had never lived in that country as residents.

Not surprising. Most countries don't give citizenship by marriage any longer. France and Italy are among the few in the EU/EEA that still do.

I would just like to be able to spend time in the UK without having to go back to the US at the end of 6 months, then wait 6 months before being able come back again. Freedom of movement is what I'm after. My husband and children are all dual citizens and can go wherever whenever, but I can't. Seems a bit unfair...

Have you thought about settling in the United Kingdom under an EEA Family Permit? If you do so with the right documentation (I would not necessarily follow advice that suggests you can live without a permit - even if technically legal it is not advisable), then you can get a Permanent Resident permit after 5 years and become a British citizen a year later. Under current laws, which could change.

Or you could try to get the nationality of your husband's country by moving to that country with the proper permit and becoming a citizen after x number of years. Most countries have a shorter residence period for spouses of citizens and most will let you keep your U.S. citizenship.

Finally - if you still want to work out whether or not your father became South African in 1949 then you need to pay a South African lawyer to research the law for you and provide you with a written report.

[SarahN]

Right, I see that what I meant by "residence" is actually "domicile."

I had got my information on the three months and six months from the French consulate website. Also the requirement to apply for the visa in the consulate that serves the state where I am domiciled in the U.S. It says:
Vous devez contacter le consulat approprié en fonction de votre lieu de résidence aux Etats-Unis.
You have to contact the appropriate consulate depending on your place of residence in the US.

You also have to come with proof that you do, indeed, reside in that state.

Now I see that I can also find statements that contradict that on the same website. oof. Food for thought. The tax link is interesting and will also require some study.

I will try to digest all of this, thanks.