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Australian Citizenship by Descent

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An Australian citizen by descent is, generally speaking, a person born outside Australia who has acquired Australian citizenship based on an Australian parent.

It does not include persons who have migrated to Australia and become naturalised Australian citizens (also known as citizenship by grant or conferral).

Contents

[edit] Eligibility for Australian citizenship by descent

  • Australian citizenship by descent is never automatically acquired at birth.
    • A formal application for citizenship must be made before the child becomes Australian.
    • This is usually a formality if the statutory requirements are met.
  • On 1 July 2007 the age limits for Australian citizenship by descent that previously had existed were relaxed.
  • A person born outside Australia on or after 26 January 1949 is entitled to be registered as an Australian citizen by descent if:
    • A parent of that person was an Australian citizen at the time he or she was born (it does not work if parent subsequently became Australian); and
    • If the parent is an Australian citizen by descent, the "2 year residence rule" is met or waived (see below); and
    • If the person is aged 18 or over, that person is of "good character"
  • A person born outside Australia and New Guineabefore 26 January 1949 is entitled to be registered as an Australian citizen by descent if:
    • A parent of that person became an Australian citizen on 26 January 1949; and
    • That parent was born in Australia or New Guinea, or naturalised in Australia before that person's birth; and
    • The person is of "good character"

[edit] Restriction on passing on citizenship

  • The one difference between an Australian citizen by descent and otherwise is that children born outside Australia are not automatically entitled to Australian citizenship by descent
  • The Australian parent must have spent a total of 2 years in Australia.
  • The reason for this restriction is to prevent Australian citizenship passing endlessly down the generations to those who may have little or no connection with Australia. It ensures that there is a real or ongoing connection with Australia.
  • The restriction does not apply where a child is born in Australia. In other words, if a child is born in Australia to an Australian citizen (by descent) parent, then the child is an Australian citizen automatically (otherwise than by descent).
  • It also does not apply where the other parent is an Australian citizen otherwise than by descent.

[edit] The 2 year residence rule

  • The 2 year residence rule is more flexible than it seems.
  • All legal residence in Australia counts, even time as a non-Australian citizen. For example, if a person was registered as an Australian citizen by descent in 2007, but had previously spent 3 years as a student in Australia between 1996-99, that person would be allowed to pass on their citizenship.
  • The 2 years does not have to be continuous. Shorter periods adding up to 2 years (even successive vacations) can also count.
  • The 2 years can be clocked up after the birth of an overseas child. The rule that the parent must be an Australian citizen at the time of birth of the child is not flexible, but the 2 year residence period is.
  • The 2 year rule does not apply if the child, at birth, is not entitled to the citizenship of any other country.

[edit] Alternative route to citizenship for children under 16

  • If you are an Australian citizen by descent and have a child under 16 there is an alternative route for the child to get Australian citizenship, which may be quicker than waiting until you have clocked up 2 years residence.
  • If the children are settled in Australia (ie, not just visiting) with permanent visas and one parent is an Australian citizen (in any way) then the child can apply for Australian citizenship by conferral without needing to wait out the normal 4 year residence period.
  • In order to do this, you must apply on the correct form (Form 1290 rather than form 118) and pay the correct fee, A$120 per child (which is different for citizenship by descent).
  • Once granted, your child will be an Australian citizen by conferral and not "by descent".

[edit] If my child is an Australian citizen by descent

  • Just be aware of the 2 year residence rule if you want your future grandchildren to have a simpler route to Australian citizenship.
  • You should think about whether it's possible to plan for your child to do university study in Australia, or a working holiday, or even spend long vacations in Australia, in order to clock up the 2 years residence
  • Although DIAC do keep good movement records, it's best for you to also keep your own evidence of your child's presence in Australia for a total of 2 years.

[edit] Children adopted overseas by Australian citizens

  • Many Australian citizens permanently residing overseas adopt children under local law
  • This does not apply to those resident in Australia who are expected to observe Australian procedures

[edit] Hague Convention adoptions

  • Since 1 July 2007, where a person has been adopted overseas by Australian citizen and the adoption is recognised in accordance with the Hague Convention on Intercountry Adoption the child can be registered as an Australian citizen on the same basis as a natural child applying for citizenship by descent.
  • There is no age limit for this, but applicants aged 18 or over are expected to be of "good character"
  • Successful applicants become Australian citizens by descent

[edit] Other adoption cases

  • If the Hague Convention does not apply, it is necessary to sponsor the child for a permanent visa (usually an adoption visa, or in some cases as a dependent on a spouse migration visa).
  • Once the child holds a permanent visa, application can be made for the child to obtain Australian citizenship by conferral
  • There is no requirement for the child to be resident in Australia, however the citizenship application must be lodged before the child turns age 18.
  • Upon completion of the application, the child becomes an Australian citizen otherwise than by descent.

[edit] Special cases

[edit] If parent lost Australian citizenship

  • Many Australian citizens lost Australian citizenship automatically upon naturalisation in another country before 4 April 2002. Adults generally lost Australian citizenship under Section 17 of the former Citizenship Act, while children were affected by Section 23.
  • This lead to situations where overseas born children were ineligible for Australian citizenship by descent because a parent was not an Australian citizen when they were born.
  • From 1 July 2007, section 21(6) of the Australian Citizenship Act 2007 provides them with a special naturalisation facility
  • A persons is eligible for this facility if that person:
    • was born outside Australia; and
    • a parent of that person lost Australian citizenship before that person was born under section 17 of the former Act (if parent lost citizenship under any other provision, such as section 23, there is no eligibility).
    • the person, if aged 16 or over, is of "good character"
    • There is no residence requirement in Australia, nor a need to hold a permanent visa
  • Although this is a grant of citizenship based on a parent's status, those acquiring Australian citizenship this way are Australian citizens by conferral and not by descent. Therefore the "2 year residence rule" does not apply for any children born overseas after parent's acquisition of citizenship.

[edit] Persons born in Papua

  • Persons born in this territory were Australian citizens
  • At the independence of Papua in 1975, most people from this territory who were at least 50% "indigenous" descent lost their Australian citizenship and became citizens of Papua New Guinea instead
  • Many of these people had one parent born in mainland Australia
  • They were ineligible for Australian citizenship by descent even though they had an Australia born parent because they had legally been born "in Australia"
  • Again, from 1 July 2007, a special naturalisation facility is provided by section 21(7) of the Australian Citizenship Act
  • A person is eligible for this special naturalisation if:
    • The person was born in Papua before 16 September 1975; and
    • A parent of that person was born in Australia (other than Papua); and
    • That parent was an Australian citizen at the time the person was born; and
    • The person is of "good character"
    • There is no requirement to reside in Australia or hold a permanent visa.
  • Persons acquiring Australian citizenship by this facility become Australian citizens otherwise than by descent.

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