Child born abroad British Passport Application refused

[jaspine1980]

I obtained my British citizenship under the British Nationality Act 1981, Section 4B, as a person born in Hong Kong. Neither of my parents is British.

I later married someone who is not a UK resident, and we had a child born outside the UK. I applied for a British passport for my child from abroad, but HM Passport Office (HMPO) refused the application, stating that my child is not a British citizen.

Their reasoning is that, although my British citizenship certificate states that I acquired citizenship by registration, they consider me a British citizen by descent under the Act. Therefore, they argue that I cannot pass on British citizenship to my child born abroad.

I submitted a complaint (appeal), arguing that my citizenship was obtained by registration, not descent. However, my appeal was denied.

What are my rights in this situation?
I am considering applying to register my child using Form MN1. However, I do not meet the eligibility criteria under the route involving a British grandparent, as none of my child’s grandparents are UK nationals.

What alternatives do I have?

[secret.simon]

The Home Office is correct in its refusal.

Not all forms of registration give British citizenship otherwise than by descent.

Section 14 of the British Nationality Act 1981 lists all the forms of British citizenship that are by descent and thus can't be passed on automatically outside the UK. Section 14(1)(d) lists people who have British citizenship by "registration under section 4B , 4C or 5" as being British citizens by descent.

As you are a British citizen by registration under Section 4(B), you are a British citizen by descent and therefore your child born abroad is not automatically a British citizen and not entitled to a British passport.

As an aside, if any of your children are born in the UK, they would automatically be British citizens otherwise than by descent.

What are my rights in this situation?

Fewer than you think. The Home Office is correctly applying the law in this case, as your situation is explicitly provided for in the law.

You have two options.

(a) Move with the child and the other parent to the UK, reside in the UK for at least three continuous years and then register the child as a British citizen under Section 3(5) before their 18th birthday. This will make the child a British citizen otherwise than by descent.

This approach has the additional wrinkle that you will need to be earning at least £29,000 per annum in the UK for you to sponsor your child and the other parent (their presence in the UK is also required).

(b) If you lived in the UK for three continuous years before the birth of the child AND one of your parents was a British citizen otherwise than by descent (you'll obviously need proof of both of these), you can register the child as a British citizen under Section 3(2) now. That will make the child a British citizen by descent, like you.

EDIT: I apologise. I reread your post and I see that option (b) above is not viable. The only option open to you is option (a) above. You'd want to start looking for a job that pays at least £29,000 in the UK and sponsor your spouse and child to the UK.

The good thing is that after the child and both parents have been legally resident in the UK for three years, the child is entitled to registration under Section 3(5).

Further EDIT: Were you a British National (Overseas) before registering under Section 4(b)? To the best of my knowledge (I am not sure. Wait for others to comment further), a British National (Overseas) status is not subsumed when you become a British citizen. Both statuses can exist in parallel for the same person. You should therefore still have a valid BNO passport. It may be possible for you to apply for your wife and child to join you as BNO dependents, which has fewer requirements than family members of British citizens.

Note that this only applies if you are a BNO.

[jaspine1980]

No, i dont have BNO

I am planning to use UK family visa route but scared if my child is eligible for the passport where he born , what happen if stateless?

If my child is eligible for the passport he born, what if Home office reject the child dependent visa , they might think child is eligible for British national as one of the parent being British Citizen.

Thanks

[secret.simon]

if my child is eligible for the passport where he born , what happen if stateless?

The child may be eligible for a passport based on descent from the other parent and/or from the country of birth.

If you were not a BNO before your registration as a British citizen, what form of British nationality did you hold before your British citizenship?

If my child is eligible for the passport he born, what if Home office reject the child dependent visa , they might think child is eligible for British national as one of the parent being British Citizen.

Explain in the family visa application that you had applied for a British citizen passport for the child, but it was rejected because you were a British citizen by descent. The UK Home Office should know UK nationality law. As you yourself experienced, not all foreign-born children of British citizens get British citizenship automatically. And that is (or should be) well-known to the UK Home Office.

[jaspine1980]

The child may be eligible for a passport based on descent from the other parent and/or from the country of birth.

Child might not be eligible for the passport he born due to nationality law. What if he really become stateless ? What are the other option to bring to UK ?

If you were not a BNO before your registration as a British citizen, what form of British nationality did you hold before your British citizenship?

May be British Subject or British Dependant Territories Citizen - not 100% sure

[contorted_svy]

What is the nationality of the other parent? Do you have any other nationality?

[secret.simon]

The child may be eligible for a passport based on descent from the other parent and/or from the country of birth.

Child might not be eligible for the passport he born due to nationality law. What if he really become stateless ? What are the other option to bring to UK ?

It is pretty rare for a person to be truly stateless nowadays. Many nations provide for some sort of support for children born on its territory, if they are truly stateless. At the very least, the child would need to apply for a stateless person's travel document (which can take many different forms, based on the country of current residence) to exit the current country of residence and travel to another country.

In case you are exploring if a stateless child can jump the queue to acquire British citizenship, they can't. Even a stateless child born in the UK needs at least five years of residence in the UK to qualify to register as a British citizen. And any stateless citizen not born in the UK requires at least five years of residence in the UK to qualify for settlement/ILR.

Keep in mind that the UK Home Office is aware of the basic rules of acquisition of citizenship for many countries around the world. It used to have a summary of at least the Indian, Pakistani and Chinese laws on acquisition of their citizenship on the Gov.UK website provided by the British embassies in those countries. So it is not like they would take your word for the child being stateless. They would need proof of the citizenships of both parents and of the child's birth certificate and that the parents took all required steps (such as registering the birth of the child at the respective embassies of the country, etc, as required by India and Australia) for the child to have acquired another nationality either by descent or by birth in that country.

And even then, the onus would be on the parents acquiring a stateless person's travel document from the country of current residence for the child to leave that country.

For us to help you further, can you advise us

(a) what are your nationalities (regardless of whether you have a passport from those countries or not)?
(b) what are the nationalities (again, all nationalities, not just the ones they have a passport from) of the other parent of the child?
(c) what was the country of birth of the child?
(d) what is the county of current residence of the child?

If you were not a BNO before your registration as a British citizen, what form of British nationality did you hold before your British citizenship?

May be British Subject or British Dependant Territories Citizen - not 100% sure

Do you have any pre-British citizen passport that you can check what specific British nationality you had before your registration under Section 4B? That may be relevant to see if your child could have inherited that status under condition of genuine statelessness.

[jaspine1980]

For us to help you further, can you advise us

(a) what are your nationalities (regardless of whether you have a passport from those countries or not)?
(b) what are the nationalities (again, all nationalities, not just the ones they have a passport from) of the other parent of the child?
(c) what was the country of birth of the child?
(d) what is the county of current residence of the child?

a) I used to hold Nepalese CItizenship but no more
b) My wife is Nepalese Citizenship
c) Child born in Nepal
d) Child current residence is Nepal

Do you have any pre-British citizen passport that you can check what specific British nationality you had before your registration under Section 4B? That may be relevant to see if your child could have inherited that status under condition of genuine statelessness.

I dont have any pre- British citizen passport. My late father served in Bridge of Gurkha in Hong Kong

[contorted_svy]

Your child has most likely acquired Nepalese citizenship from the mother.