Mother settled in the UK in 1986 - Some questions!

[FighterBoy]

This may be tricky as it dates back 30 years ago. My father settled here in the 80s. My mother was living in Germany at the time. They then married in Germany, then she obtained a visa from the British Consulate in Dusseldorf to settle here in 1986.

Her entry clearance states 'for UK settlement'. Her visa is a one-way, holy-marriage visa, to be used by X date - but no time limit/expiry regarding her stay in the UK. She enters the UK in 1986 and obtains a standard Leave to Enter stamp (for 3 months).

Regarding the method/stamps, it seems similar to non-EEA wives settling with their EEA husbands today, except my parents are non-EEA visa nationals (hence her visa).

Am I right in thinking: 1) At some point rules changed so wives only got a visa lasting a few years 2) 'Indefinite leave to enter' was either introduced later on, or given to those settling independently? 3) British consulates overseas can let people settle (indefinitely) by endorsing with an appropriate visa?

Hope the gurus can take a look and many thanks in advance

[vinny]

See also

Statement of changes in immigration rules Feb 1983

Statement of change in immigration rules July 1985

Statement of change in immigration rules May 1986

[FighterBoy]

See also

Statement of changes in immigration rules Feb 1983

Statement of change in immigration rules July 1985

Statement of change in immigration rules May 1986

You're incredible haha. That seems very confusing as there are different cases, and one part (125) says the wife may be deemed settled after the initial period at discretion of SS. I'm not sure what her 3 months Leave to Enter means.

I thought if her stay was restricted that would be made clear in the visa, I didn't think 3 months Leave to Enter would restrict her stay long-term.

Worst case I may have to use form NS, and use my mum's passport and their marriage certificate, to show my dad was definitely settled at least.

Your thoughts would be appreciated. I'm guessing with the passage of time the meaning of these stamps have lost context and may be hard to interpret.

[FighterBoy]

My interpretation is the stamp is a signal to get married or continue marriage within that 3 months, and afterwards the wife should be deemed settled, unless there's contrary evidence.

If she was forced to apply for extended stay after X months one would assume that would be made clear in the visa.

[FighterBoy]

My mother's entry clearance application was actually right around the time of the implementation of the 1985 rules. The previous rules appear to grant settled status by default, the '85 rules didn't appear to do so ... but 125 suggests maybe.

Anyway I'm still of the view that she was expected to marry or continue marriage within 3 months and then was good to stay. If she was forced to apply to extend her stay here visa should say.

Like I said, worst case is form NS to show dad settled for sure.

[FighterBoy]

I think I'm right. After much reading, there's a difference between applying/granted settlement on the basis of marriage to a settled person, vs being admitted as a fiancee or spouse and intending to settle 'thereafter', as they said. In these latter cases you need to apply for an extension to stay.

Those documents are confusing and full of jargon though. Any clarification from the gurus are welcome. But I think my point above is key about the basis for admission.

[vinny]

If she was granted limited leave to enter, then I believe that 92 was also applicable.

If she was already married, then I'm surprised that she was not granted leave to enter for an indefinite period under the 1983 rules nor for twelve months under the 1985 changes.

[FighterBoy]

If she was granted limited leave to enter, then I believe that 92 was also applicable.

...

Apologies for my rambling - please feel free to delete those posts above

Her entry clearance states 'for uk settlement', her uk visa was under 'holy marriage' category with a 'one-way journey to be used by ...' with no limit / expiry on her stay in the uk. She got a 3 month leave to enter stamp on condition she doesn't work.

I clicked the 92 link but it didn't work. I assumed she settled here, if not on arrival then definitely after the 3 months, and she was already married to my dad in Germany and applied for UK settlement as the entry clearance says.

I assumed she got this stamp to ensure the husband supports her for the first 3 months and they live together in the UK in that time, so it's a legit marriage.

She arrived here in July 1986 so the IO was never going to stamp indefinite entry. I didn't read about them doing that even in the 83 rules - in fact they only ever mentioned it regarding the settled husband.

[FighterBoy]

I believe the distinguishing feature between the 83 and 85 rules is that in 83 the wives and fiancees (but not fiances) were seen as 'passengers for settlement' and being 'admitted for settlement'. The husband was settled with ILE (or ILR) and was subject to accommodating the wife, etc for a period of time, didn't appear to specify how long.

In '85, there was no longer admission for settlement. You'd simply be admitted as the spouse/fiance(e) (gender neutral) of a settled person and if you intended to settle 'thereafter', you'd need to apply to the home office after your stay is up. So I assume their visas would have an expiry date to reflect that, and their entry clearance would not say 'for uk settlement'.

And like I said earlier, I doubt wives ever under any rules get ILE because they're expected to first live with the partner and be funded by him for a while. Similarly in the EEA route today, husbands first need to fulfill their obligations and wives get a limited entry stamp.

[FighterBoy]

Something I never understood, especially as they say passports (but not nationality) are the prerogative of the Queen. As far as I'm aware, the bill was never put to the Queen, but interestingly prime ministers are anointed by the Queen upon election.

Also as nationality law was made into a function of immigration law, it's amended over time by parliament, not the Queen. Or, why not decide by public referendum?

Also it meant by law, a prince couldn't pass on his nationality with a non Brit mother out of wedlock. Or someone could play for the England football team without being British. Very odd.

[secret.simon]

This is not the accustomed place for a discussion on constitutional practice and usage in the United Kingdom, but a short primer may not be out of order.

Why did Thatcher decide who's British and not the Queen?

Thatcher didn't either. The acquisition of British nationality is governed by rules issued under the British Nationality Act 1981 that were passed by Parliament, not by Mrs. Thatcher.

The grant of British nationality has always been a gift of Parliament, not of the Queen. The Queen-in-Council (essentially the C abinet) could in earlier times grant the status of denizen, which would give the person settled status in the UK. So, in modern times, it would be the equivalent of ILR/PR. But full citizenship has always required an Act of Parliament.

passports (but not nationality) are the prerogative of the Queen.

Passports are not the prerogative of the Queen, they are issued under the Royal Prerogative. The Royal Prerogative is a source of law and is not associated with the Queen any more than the Royal Courts of Justice.

The Royal Prerogative is exercised by the Queen's ministers in her name, just as judges dispense justice in the name of the Queen, but without her actual involvement. Under current constitutional usage, the ministers are accountable to Parliament (generally the Commons, but also the Lords) and can be questioned on their exercise of the Royal Prerogative. As a source of law lower than statute, it can be overturned by an Act of Parliament and can also be examined by the courts.

nationality law was made into a function of immigration law

Nationality law and immigration law are separate and distinct. It is unfortunate that most people using these forums see them as one continuum, whereas in reality they are separate and distinct.

Non-EEA immigration (from visit visas to ILR) is governed by the Immigration Act 1971 while EEA nationals and their dependents by the European Communities Act 1972. The various types of British nationality are governed by the British Nationality Act 1981. It is amended, from time to time, by other Acts of Parliament.

Or, why not decide by public referendum?

Because in the UK constituition, it is the Queen-in-Parliament (that is, the Queen, the Lords and the Commons acting together) that is sovereign. The enacting formula for Acts of (the UK) Parliament makes that very clear;

"BE IT ENACTED by the Queen's [King's] most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—"

Legislative rules mean that there can be a thorough debate, including a line-by-line debate, of Bills. While the government can ram Bills through the Commons, because of its built-in majority, the Lords do a more thorough job of the line-by-line scrutiny and often many improvements to Bills, such as allowing the children born to British mothers before 1983 to register as British citizens, come from the unelected Lords.

Pure democracy is no panacea. Switzerland is a case in point. To gain Swiss citizenship, one needs federal, cantonal and local community approval. And while the first two are relatively straightforward, many local communities (boroughs/cities) give their approval by having a referendum on each individual applications. So, it is possible that two people meeting identical requirements may have different results for their naturalisation applications because the public approved one and rejected the other. And as there is no standard to meet but public approval, it is a bit like shooting in the dark. And even the courts won't override public will.

I remember reading on another forum about a migrant woman, the mother of Swiss citizens, being rejected for 12 years continuously.

Also it meant by law, a prince couldn't pass on his nationality with a non Brit mother out of wedlock.

Rules for both the nationality and marriages of members of the Royal Family is governed by different laws, such as the Royal Marriages Act 1772, which was only repealed and replaced in the last Parliament.

As an aside, it is Parliament who decides who the King or Queen will be. So, if in theory, Prince Charles does not wish to be King and wants William to take over, the Parliaments of all 17 Commonwealth Realms (the countries that have the Queen as their head of state, such as Canada, Australia, New Zealand, Jamaica, Grenada, etc) must agree before he (Prince Charles) can step aside. So, you can see that even choosing who will be King or Queen is not within the Royal Prerogative, but is in the gift of Parliament.

[Chinho2k]

Very enlightening response secret.simon, thanks.

[FighterBoy]

Great reply Simon, thanks. I couldn't find a more appropriate place for it. And please see my PM. Just a few Qs ...

- You say parliament passed it, not Thatcher. I think that's misleading; Thatcher was the key person of parliament as PM, leading her party to draft it then push it through the commons. Did the Lords have the final vote on it?

- ILPA disagrees and say nationality is a function of immigration law instead of the reverse (which they favour). It was drafted in response to immigration, amended over time in response to it, some of the definitions eg) settled are determined by immigration law which is a moving target. BNA was drafted 10 years after the immigration act and based upon it.

- My main qualm is how it changes over time based on the government/parliament of the day and their desires, in America nationality law is outside control of politics as far as I'm aware. eg) Trump wants to stop jus soli as president but can't do it.

- I take your point about the pitfalls of pure democracy, but I meant in regards to passing a law rather than deciding applications individually on the desires of the examiner. Though we still have a bit of that as seen on the forum. IIRC the Irish people got to vote on repealing jus soli in 2003-2004.

- It's quite clear that parliament are the decision makers and even the Queen/King is decided upon as you said. But can the Queen shoot down a decision in theory, are parliamentary powers a gift of the Queen or in their own right. It is her Kingdom. Also doesn't the High/Supreme Court override parliament in individual cases? They can't change acts/laws but can reverse decisions of the SS.

Many thanks

[secret.simon]

I have responded to your PM.

- You say parliament passed it, not Thatcher. I think that's misleading; Thatcher was the key person of parliament as PM, leading her party to draft it then push it through the commons. Did the Lords have the final vote on it?

The Lords did get votes on the Bill and the BNA 1981 was not passed under the provisions of the Parliament Acts.

You misunderstand the role of the Prime Minister in drafting legislation, not making it. The Prime Minister and the C abinet lay out the broad policy direction of the direction where they want the law to go. It is then up to the department (in this case, the Home Office) to work with the Parliamentary Draftsmen (which is a government body, not parliamentary) to write the text of the Bill, which then has to be sheparded through the two Houses by ministers.

To understand the context of the British Nationality Act 1981, it is also worth reflecting on the times as they then were. You have referred to the Immigration Act 1971. The previous decade, the 1960s, had seen various restrictions placed on what we now call British Overseas citizens and Enoch Powell's famous "Rivers of Blood" speech. As an aside, however dearly beloved his views, he was, in my view, a brilliant political theorist. There were race riots in Brixton, Smethwich and elsewhere.

In such a febrile environment, the Conservative government introduced the BNA 1981. It is worth reflecting on the fact that inspite of the fact that the BNA 1981 was passed well after the Empire had died, it still made provision for Commonwealth citizens having political rights in the UK. Thus, ironically, Irish, Cypriot and Maltese citizens living in the UK have more rights than a British citizen in the UK. Their political rights, on par with a British citizen, arises from their Commonwealth citizenship (or parallel legislation, in case of Irish citizens), while their right to EEA immigration law allows them to short-circuit UK Immigration laws.

- My main qualm is how it changes over time based on the government/parliament of the day and their desires, in America nationality law is outside control of politics as far as I'm aware. eg) Trump wants to stop jus soli as president but can't do it.

I am not a huge fan of the American system of government, where one can't change things no matter how non-sensical they get. Case in point are the gun laws. Indeed, the originalists want the Constitution to be interpreted as it would have been in 1789. If it were so, the "dead hand" (those of you who know your law will know the term) of people living in 1789 will govern all their laws.

I am more inclined towards Viscount Sankey's "Living Tree" doctrine; that a Constitution should be interpreted in keeping with the time and place. The British approach towards keeping the law up-to-date looks to me as being a perfectly common-sense way of doing things. Nationality laws are changed, but typically once a generation. To give you an idea, the BNA 1981 was preceded by the BNA 1948 and before that was defined by common law (judge made law).

But can the Queen shoot down a decision in theory,

In theory, she can, but the last time it was done was in 1708, by Queen Anne and that was done on the basis of the advice of her ministers.

Broadly, the Queen will only take a political decision on the advice of her ministers. Nowadays, that means only the Prime Minister. The minister is held accountable for the advice that s/he gives. The most important decision that she can take without advice nowadays is which portrait of hers would grace the coinage. Even the honours system (giving people such baubles as MBEs) is done by ministers.

Conversely, the Queen has only one duty that must be done; she must ensure that there is a Prime Minister and a government of each of the Realms that she reigns over. The Prime Minister is not elected by the people, but appointed by the Queen and is the Queen's Prime Minister, just as the government is Her Majesty's Government (HMG). But the Queen always appoints a person who commands the confidence of the House of Commons (effectively the leader of the party with a majority), so that the government can get its business through the Commons. That gives it the appearance of a prime minister's election.

[FighterBoy]

Thank you Simon Great reply.

- You say Lords had votes on the bill, but was it their final decision to put it through? Also you're saying Thatcher got others to draft it up after giving the direction and instruction ... same thing ultimately. I still see Thatcher as the arbitur unless the Lords had more powers than I suspect.

- Do you think we're due for a new BNA in the next few years? I think the time elapsed and the political & demographic shift, esp with a referendum looming, could well warrant it. There are a lot of babies born here to foreign couples in recent times too vs the indigenous birth rate, as food for thought. I've read ILPA's proposals.

- Can no body/entity interfere in a country's nationality laws? Why aren't the EU governing it if nations are governed by EU?

- My last question, promise! Why do the acts make no reference to the evidence needed to substantiate one's nationality, yet the home office/HMPO impose all kinds of bureaucratic hurdles and internal policies? Why can't people just submit affidavits, secondary evidence, etc. Maybe they can through a good solicitor to Home Office, or the courts. But there appears to be an abuse of powers at play.

[vinny]

My interpretation is the stamp is a signal to get married or continue marriage within that 3 months, and afterwards the wife should be deemed settled, unless there's contrary evidence.

If she was forced to apply for extended stay after X months one would assume that would be made clear in the visa.

Leave to enter for X months imposes a time limit on the holder's stay in the UK for up to X months. Unlike PR in the present EEA regulations, I believe that ILR cannot be deemed to be granted automatically. 92 expected people to make an application for any time limit to be removed.

Where a passenger is admitted but is aggrieved by a time limit or condition imposed, or it is clear that it will leave him dissatisfied, it should be explained that his proper course is to apply to the Home Office for variation of his leave, and that he will have a right of appeal if variation is refused, provided he applies before the time limit on his stay expires.

[FighterBoy]

My interpretation is the stamp is a signal to get married or continue marriage within that 3 months, and afterwards the wife should be deemed settled, unless there's contrary evidence.

If she was forced to apply for extended stay after X months one would assume that would be made clear in the visa.

Leave to enter for X months imposes a time limit on the holder's stay in the UK for up to X months. Unlike PR in the present EEA regulations, I believe that ILR cannot be deemed to be granted automatically. 92 expected people to make an application for any time limit to be removed.

Where a passenger is admitted but is aggrieved by a time limit or condition imposed, or it is clear that it will leave him dissatisfied, it should be explained that his proper course is to apply to the Home Office for variation of his leave, and that he will have a right of appeal if variation is refused, provided he applies before the time limit on his stay expires.

I don't think that's correct, I thought Leave to Enter for X months means you can enter/re-enter the UK for that time. For example wives of EEA nationals get Leave to Enter for X months but can stay indefinitely (subject to their partner exercising treaty rights)

I thought it was the end/expiry date of a person's visa that determined the length of their stay. You even talked about the difference of leave to enter vs remain in the other thread about wives of EEA nationals getting stamped in.

I'm thoroughly confused. I didn't even think IO's at ports of entry determined the length of visa nationals' stay, instead just dealing with entry.

[FighterBoy]

I can't believe that after a year of researching this and being sure of the stamps, I'm now utterly confused. I'm guessing Vinny is right and I was misled by the rest of the internet all along. A million and one answers on something that should be explicitly defined.

My passport application is now stuck at Durham and they will most likely reject it. I just want to give up on all of this now.

[Richard W]

- My main qualm is how it changes over time based on the government/parliament of the day and their desires, in America nationality law is outside control of politics as far as I'm aware. eg) Trump wants to stop jus soli as president but can't do it.

The Americans have had a lot of chopping and changing over just who is born outside the USA is a US citizen.

[Richard W]

- Do you think we're due for a new BNA in the next few years? I think the time elapsed and the political & demographic shift, esp with a referendum looming, could well warrant it. There are a lot of babies born here to foreign couples in recent times too vs the indigenous birth rate, as food for thought. I've read ILPA's proposals.

The only obvious issue with foreign couples is keeping track of which children are British. To this end, I think we will end up EEA PR holders only becoming 'settled' when they are granted documentary evidence of having achieved PR. However, that's going to be a matter of regulations.

The other looming mess is on the nationality of the children of ILR holders who subsequently naturalise. It's a question of whether proper information will be maintained on ILR holders. Perhaps ILR or passport reference numbers will be stored on birth certificates. There is a looming mess on proving British citizenship by descent. Purely for administrative reasons, I think the second generation born in the UK should automatically be British.

- Can no body/entity interfere in a country's nationality laws? Why aren't the EU governing it if nations are governed by EU?

That's too overt an interference. However, I can see the EU interfering when countries start bestowing nationality on people who than use it to move to another country. Portugal with Goa is one such issue, and Romania with Moldova and Bulgaria with whom I'm not sure have been floated as issues. US citizens using Italian and Polish ancestry to move to the UK is another abuse, but I think one that many people will tolerate. However, it may be done at the level of the EU, and not just the individual countries, restricting which of a country’s nationals are EU citizens. This is already a bit complicated when a nationality covers more than one country, as with British (UK, Isle of Man, Jersey, Guernsey) and Danish (Denmark proper, Faroes, Greenland).

- My last question, promise! Why do the acts make no reference to the evidence needed to substantiate one's nationality, yet the home office/HMPO impose all kinds of bureaucratic hurdles and internal policies? Why can't people just submit affidavits, secondary evidence, etc. Maybe they can through a good solicitor to Home Office, or the courts. But there appears to be an abuse of powers at play.

Things are moving in the opposite direction. Regulations used to allow promptly finalised birth certificates as evidence of paternity for nationality purposes for children of unmarried mothers, but that was stopped, for new registrations, last year. Now the father has to satisfy the SS that he is the natural father. I have no idea what the bit in red means if the father is dead or has no interest in the child. The rules of evidence for paternity were supposed to defined by regulations, but this idea appears to have been abandoned in favour of internal policies and the like.

[FighterBoy]

The other looming mess is on the nationality of the children of ILR holders who subsequently naturalise. It's a question of whether proper information will be maintained on ILR holders. Perhaps ILR or passport reference numbers will be stored on birth certificates. There is a looming mess on proving British citizenship by descent. Purely for administrative reasons, I think the second generation born in the UK should automatically be British

Agreed. I and many others are in that exact situation - as my father later naturalised and his ILR records were destroyed by the Home Office, and him. Apparently. You'd think adequate provision would be made as you described, but we're not wanted in this country. The authorities have no interest in us.

I've been dealt another blow as explained in my post above. I was not aware Leave to Enter stamps limited one's stay (at least for those with a visa), only their entry/re-entry period into the UK.

Hoping that Vinny/others can clarify for definite. Thanks everyone.

[Richard W]

The other looming mess is on the nationality of the children of ILR holders who subsequently naturalise. It's a question of whether proper information will be maintained on ILR holders. Perhaps ILR or passport reference numbers will be stored on birth certificates.

Agreed. I and many others are in that exact situation - as my father later naturalised and his ILR records were destroyed by the Home Office, and him. Apparently. You'd think adequate provision would be made as you described, but we're not wanted in this country. The authorities have no interest in us.

Never attribute to malice that which can be adequately explained by stupidity. "UKBA is not fit for purpose."

There is a looming mess on proving British citizenship by descent. Purely for administrative reasons, I think the second generation born in the UK should automatically be British.

Sorry, I meant 'by birth'.

It was interesting reading the parliamentary debates for the BNA 1981. The government was dismissive of the notion that removing jus soli would lead to a bureaucratic tangle.

I've been dealt another blow as explained in my post above. I was not aware Leave to Enter stamps limited one's stay (at least for those with a visa), only their entry/re-entry period into the UK.

There are quite a few cases where someone has unwittingly turned a child into an unlawful resident. British citizens and other settled persons have brought their non-British children into the UK without visas without realising that their stay was limited. That's on top of all the EEA nationals in the country unlawfully.

Additionally, things were once much simpler. I can remember extending a visitor visa for a family member over the phone in the 1980s!

All this leaves plenty of scope for doubt. The one suspicious part about it all is that it makes work for lawyers.

[FighterBoy]

Agreed, thanks for your contributions Richard, it is a big fat confusing mess.

Thing is, there's a difference between being admitted initially for 3 months and then being able to stay permanently *IF* ABC was met in that time, vs having to leave the country unless a limited extension is applied for and granted.

The former case seems to apply to the 83 rules, the latter to the late '85 changes. It's unclear which applies to my mother!

Like I said, if it was the latter case I'd expect her visa to restrict her stay to 3 months explicitly with an appropriate expiry date. Bureaucratic tangle indeed.

Vinny/guru/any views appreciated. Seems the stamps have lost their context/interpretation over time.

[FighterBoy]

My reading may have discovered something interesting:

- If a person is outside the UK, at that time they'd be under no UK time restrictions
- If there's evidence of them being ordinarily resident in the UK (job/wife/child etc)

By the BNA 1981's definition, they'd be settled? So their UK born child is British?

[CR001]

This is nothing new, so not sure of the point you are trying to make.

A child born in the UK to a parent who is settled (ILR or PR) is automatically British, nothing has changed in this regard.