Child of British mother - eligible?

[pbsdependant]

Hello
I am sorry if this is not the right place to post this topic or if this question has been asked before - I trawled through the forums but could not find anything which is similar to the situation. I am inquiring on behalf of my mother.

She was born in Kenya in 1958 and her mother had a Citizen of UK and Colonies passport (her mother was also born in Kenya). My mother's birth certificate lists her mothers nationality as British. Her mother has passed away quite a few years ago and not sure if she had a right of abode on her passport.

Kenya gained independence in 1963.

In her mother's passport, my mother is listed as a child which meant that the child was also British at the time.

When my mother turned 18, she got a Kenyan passport so is a commonwealth citizen.

Question is would she be eligible to gain British citizenship based on her mother's status at birth - if so, what form would be applicable for it? Would it be UKM?

Thanks in advance and your help is much appreciated.

[secret.simon]

Unlikely. Unless either she or one of her parents was born in or was registered or naturalised in the UK (not a colony or protectorate), your maternal grandmother would not have Right of Abode in the UK. And if she did not have Right of Abode in the UK in 1983, she would not have become a British citizen.

2 Statement of right of abode, and related amendments as to citizenship by registration
(1) A person is under this Act to have the right of abode in the United Kingdom if—
(a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—
(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it; or
(c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more ; or
(d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.

Form UKM can only be used if the mother in question (in this case, your maternal grandmother) was either a British citizen or a CUKC (Citizen of the United Kingdom and Colonies) AND had Right of Abode in the UK at the time of the birth of the child (your mother).

So, the question is, was either parent of your maternal grandmother born in the UK (including Ireland before 1922)?

[pbsdependant]

Hello secret.simon
thanks very much for your reply and much appreciate the advice.
my grandmother was not born in the UK (as currently constituted).
Apart from UKM, is there another route for my mother to claim british citizenship? When it was time to get her a passport, she calls that she could not get a British one because 'you couldnt get one if your mother had one - only if your father had one' ... obviously this could also be a misinterpretation on her part.

thanks

[secret.simon]

my grandmother was not born in the UK (as currently constituted).

What about her parents (your great grandparents)?

When it was time to get her a passport, she calls that she could not get a British one because 'you couldnt get one if your mother had one - only if your father had one' ...

Correct. For children born before 1983, CUKC citizenship could only be passed on through the father. A CUKC citizen mother could not pass on their citizenship to their children.

The purpose of Form UKM is to remedy that if the mother was a CUKC AND had Right of Abode in the UK (in other words, had all the attributes of a British citizen as now defined).

So, in a sense, your mother is doubly disqualified from any claim to British citizenship by descent. She did not acquire CUKC status at birth (because the CUKC parent was the mother, not the father) and she does not have the Right of Abode in the UK.

[Richard W]

When it was time to get her a passport, she calls that she could not get a British one because 'you couldnt get one if your mother had one - only if your father had one' ...

Correct. For children born before 1983, CUKC citizenship could only be passed on through the father. A CUKC citizen mother could not pass on their citizenship to their children.

But if that rule, and only that rule, prevented a child from being registered as British before the age of one, for the purposes of UKM (and I presume UKF), the child should be treated as though it had been registered as British! I think this judgement came out in February this year. It's mentioned in the UKM thread.

So, in a sense, your mother is doubly disqualified from any claim to British citizenship by descent. She did not acquire CUKC status at birth (because the CUKC parent was the mother, not the father) and she does not have the Right of Abode in the UK.

It's just the lack of right of abode that matters.

[Richard W]

But if that rule, and only that rule, prevented a child from being registered as British before the age of one, for the purposes of UKM (and I presume UKF), the child should be treated as though it had been registered as British!

The case is Romein.

[secret.simon]

But if that rule, and only that rule, prevented a child from being registered as British before the age of one, for the purposes of UKM (and I presume UKF), the child should be treated as though it had been registered as British! I think this judgement came out in February this year. It's mentioned in the UKM thread.

The case is Romein

I am aware of Romein. But it does not apply in this case (and I did not mention it because it does not apply) because that judgment only makes Form UKM registration available to the child of a CUKC mother by descent who also had Right of Abode. In this case, even if we assume that the maternal grandmother was a CUKC by descent (not a given; she may have been a CUKC otherwise than by descent by birth in Kenya when it was a colony), she did not have Right of Abode. Therefore Romein does not apply.

While I appreciate your point, made in the spirit of being precise and pedantic (a compliment, in this case), there is no point in muddying the waters and confusing the OP by introducing a tangent that is not relevant to her question.

[pbsdependant]

Hello secret.simon and Richard
thanks for your opinions and much appreciate your help. I have no idea where my great grandmother (i.e. my mother's maternal grandmother) was born. I would say it is most probably outside of the UK (as presently constituted) .. would it matter if she also was born in Kenya and had a CUKC?

How would we know if my grandmother would have had a Right Of Abode? She used to travel to the UK quite regularly before her death.

My thought process is that my mother should have been given the option as an adult to receive a CUKC based on her mother but that option was never given - surely there are plenty of people with this issue so are you aware of any successful court action for this?

thanks

[secret.simon]

How would we know if my grandmother would have had a Right Of Abode?

To have Right of Abode in the UK before 1983, your grandmother would have to meet the requirements of Section 2(1) of the Immigration Act 1971 as enacted.

A person is under this Act to have the right of abode in the United Kingdom if—
(a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or

(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—
(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it; or

(c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more ; or

(d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.

By your description, conditions (a) & (d) are not met. Condition (c) is possible if your grandmother settled in the UK for at least five years before 1971. There may be stamps in her CUKC passport indicating that condition (c) is met.

my mother should have been given the option as an adult to receive a CUKC based on her mother but that option was never given

Because at the time, the law expressly gave citizenship by descent outside the UK only through the father.

Even if your grandmother and mother were CUKCs before 1983, if they did not have the Right of Abode, as mentioned above, they would have become a British Overseas Citizen after 1983, which does not give the right to reside in the UK AND is not inheritable.

[pbsdependant]

Hi secret.simon
Have checked my grandmothers passports and cannot find a period of time where she was in the UK for 5 years so I guess it would make my mother ineligible.

Just to check that my mother being listed as a child on my grandmother's CUKC passport at the time of birth is irrelevant to the matter? She would still be ineligible to gain a CUKC (or current equivalent) based on this fact?

thanks

[secret.simon]

Just to check that my mother being listed as a child on my grandmother's CUKC passport at the time of birth is irrelevant to the matter?

Correct. CUKC status without Right of Abode was not inheritable through the mother and BOC status (CUKC without Right of Abode after 1983) is not inheritable unless the child is stateless.