pallykin

I am trying to determine if my grandfather was a CUKC or a British Subject without Citizenship after BNA 1948 went into effect in 1949, and after India created Indian Citizenship in 1950. Here is some background...

Great Great Great Grandfather born in London 1799 Trained as a surgeon in London and entered His Majesty's Bengal Army where he served as Assistant Surgeon, Surgeon, and Surgeon Major. Married in Paris, France and had two daughters and a son all born in India. Served in numerous campaigns and then returned to London where he was appointed Deputy Inspector General of Hospitals. He was definitely a British subject.

Great Great Grandfather born in 1840 India to a British subject father in Crown Service(see above). Lived and attended school in London as a boy. Officer in the Bengal Infantry retiring with the rank of Colonel. Lived out the remainder of his life in England. British subject.

Great grandfather born in India to a British subject father (see above). Lived in London and attended the Royal Academy Sandhurst as a young man, at the time only open to British subjects, graduated on 1884 and served in the Durham Light Infantry before being seconded to the the India Staff Corps in 1887. He had a British passport dated 1891. He had an extensive military career, serving in the Sudan 1885-1886 during the Mahdi's Rebellion, in China in 1900 during the Boxer Rebellion. In 1905 he resigned his commission and began a second career, enrolling in the College of Physicians and Surgeons at Columbia University in New York City, receiving his medical degree in 1907. Ships manifests showed him as British. He traveled to both France and the UK where his parents lived (separately), the most recent being in 1926. British subject.

Grandfather born in India 1895 to the above father, left India as an infant and was taken to Germany, where he was raised by close family friends until 1899, when the family traveled to the US briefly, then lived in France until moving to the US in 1902. The family never lived in any other country after this. Grandfather remained a resident of the US except to serve in the US Army in France in WWI. He visited England in the Summer of 1914 with his father, travel to Europe became difficult after that because of WWI. He was a British subject from birth and became a naturalized US citizen in 1955 at the age of 60. The UK allowed dual citizenship from 1949. Was he a British subject without citizenship from 1949? Or did he become a CUKC because he did not acquire Indian citizenship?

jmin

Where in India were the great grandfather and grandfather born?

pallykin

Great grandfather was born in Barrackpore in northeastern India, and grandfather in Murree, in modern day Pakistan.

jmin

Grandfather was a CUKC by BNA 1948 12(4) which was by descent (see 12(8)). Based on a reading of the two citizenship acts, he would not have become an Indian citizen or a Pakistani citizen because he (or his father) was not domiciled in India or Pakistan at independence. Ordinarily that would not have made him, had he been alive, at British citizen under BNA 1981 because he would not have had right of abode absent some other factor. But from what you said his father was in crown service at the time of his birth, having been recruited for his position in the United Kingdom. He would then have been a British citzen.

Why are you interested in whether he was a CUKC? For your own application (were you successful with yours?) or someone else?

pallykin

My UKM application was refused earlier this month. The reasoning was that as my great grandfather and grandfather were born in British India, that my mother was a British subject at her birth in 1928, but not at the time I was born in 1964. We were both born in the United States. I was not explicitly told that she and my grandfather became BSWCs, but that is my assumption.

I did not provide my family history past my great grandfather as I assumed, perhaps in error, that as I had his original passport from 1891 that said he was a British subject that this was firm ground for a starting point. Also, birth records going back that far are hard to come by.

I was completely surprised by being refused. It seems somehow unjust that my grandfather would have become stateless in 1949 when his family in the male line provided over 80 years of Crown service going back three generations. That can't have been the intention of the 1948 law.

BritInParis

It might be worth sharing your refusal letter with identifiable information redacted.

pallykin

Here is the letter. On follow up emails with the caseworker, he said:I provided evidence that my great grandfather (born 1863) was in crown service at the time of my grandfather's birth and that he was recruited to crown service from within the UK. This was in the form of London Gazette and Hart's Annual Army List entries which are readily verifiable. What should I have provided?

My great grandfather served in the Bengal Army as as seconded British Army officer, but he was stationed at various times in Gibraltar, Egypt, as well as India. He served in the Sudan 1885-1886 during the Mahdiist Revolution and on various occasions he served as official interpreter in Russian and German. In 1900 he served with the China expeditionary force as a special service officer to report on the fortifications of the Yangtze River and on the strength of the forces there around the time of the Boxer Rebellion. He also fought against the Waziri in Afghanistan, and he spoke Pashto. So his ties were to the British Army, not to British India. He went where they sent him.

jmin

I am interested in what BritInParis says but if the caseworker conceded in a followup email that your mother was a British Subject at birth then she would have been a CUKC by BNA 1948 12(4). The only exceptions would have been if she was a citizen of a country in subsection (3) of section one or potentially a citizen of such a country. But because she was not born in or domiciled in India/Pakistan she would not have become a citizen on independence. Their concern appears to relate to Indian independence only. You can prove that she was not a citizen of india or a potential citizen of india using the relevant independence acts. Therefore, she would have been a CUKC by 12(4). The caseworker appears to not view dual US citizenship as a concern because the caseworker confirmed she was a British Subject at birth.

What reasoning did you give the caseworker for why your mother (and grandfather) became a CUKC in 1949? Please provide the relevant (redacted) explanation that you included in your application. This appears to be where the issue is.

As an aside, I mentioned earlier that 12(4) is by descent only (BNA 1948 12(8)) but that is true only for men.

pallykin

I've just reviewed what I sent and I did not mention or provide any proof that she retained CUKC status on 1 January 1949 by being resident somewhere other than India or Pakistan. I didn't even think about it.

As far as proof of her residency on 1 January 1949, that is more of a challenge but possibly doable. I have the attached battered and torn and possibly not official enough college transcript covering the years 1947-1950.

Her first international trip outside the United States was to continental Europe in the summer of 1954 with her best friend. I have found ship manifests with her name as a passenger (also the friend's name.) It seems I would be able to request her passport records and I assume her first passport was issued in the months leading up to her 1954 trip to Europe. Apparently the US started requiring passports in 1941, so if her first passport was in 1954, then it supports the idea that she didn't leave the US between 1941 and 1954.

jmin

how did you claim your mother was a CUKC in your application? 12(4), something else, or just because her father was a CUKC? I want to know to provide a more informed reply. I will look at Fransmanns today or early next week, time permitting, for the relevant India and Pakistani acts and commentary for you (I travel frequently so am often unable to post).

pallykin

Thank you so much for your help with this...


On the application I put that my mother was a citizen of "United Kingdom of Great Britain and Northern Ireland" from birth.


This is what I said in the statement I submitted with my documents:I took out the references to the sections of the law from what I submitted, but below was my interpretation that I built to convince myself I had a valid claim to UK citizenship. (With 20:20 hindsight, perhaps I should have included this in my application...)

pallykin

Hi jmin and BritInParis

I have an answer from the caseworker about my refusal...

I sent this email yesterday:and received the following reply this morning:Should I reapply for free, or ask for a reconsideration and pay the fee? Does the reconsideration go back to the same caseworker? That might be less desirable. I am fine with waiting another six month.

jmin

Based on your question, your caseworker now believes you are asking about a crown service claim when you are not. It is one reason why you must clearly state how you are eligible and reference the relevant sections of the nationality acts when tracing your claim.

A better question to your caseworker would have been : if I was able to show that my mother did become a CUKC, would that be sufficient for my application to be approved? (But do not do this yet as I want to provide you reasoning to show why your mother was a CUKC).

You have to prove your mother became a CUKC. To do this you will need to reference the relevant independence acts. I am going to provide you with these in a day or two. Do not resubmit as is or you will be denied again. I will get back to you.

thepollyannasociety

This has absolutely nothing to do with me, but I just want to say how glorious it is to witness the kindness of strangers. My heart is happy.

jmin

I am searching for my copy of Fransman's to try to find an exception for you but it is possible that your mother never became a CUKC and instead was a BNA 1948 13(1) British subject without citizenship. If this is the case, your mother would never have become a CUKC by 13(2) because the UK had issues with the citizenship acts of these two countries. As a result of these disagreements, the UK did not create an order recognizing their citizenship acts under BNA 1948.

The reason the UK had issues with the citizenship acts from these two countries is that their acts would have created a large number of CUKCs who lacked a connection to the UK (instead of narrow exceptions, the acts created large numbers of people born in the two countries who were not automatically citizens of said countries and who would have become CUKCs by 13(2) if the UK recognized the acts). I have not looked at India or Pakistan much in the past so when I read their acts and saw that your mother would not have become a citizen automatically, I assumed she would have been a 12(4) CUKC.

I will update once I locate my copy of Fransman's.