4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Hello jmin, BritInParis, and everyone,

I am trying to understand how to properly submit a 4L application for a former British subject (born 1930s in an s1(3) BNA 1948 country) and daughter (born ~1955 in an s1(3) BNA 1948 country) based on the gender discrimination in s12(6) BNA 1948 that flowed through to s11(3)(b) BNA 1981. BritInParis has called this "CUKC by declaration."

Per Sable: "The deadline for this was originally 31 December 1949, but was extended to 31 December 1962 by the British Nationality Act 1958."

The former British subject knew at the time (1958-1962) that they were descended from a UK-born person, through both the male and female line, and had a close connection to the UK. Incredibly, the former British subject also knew at the time that British citizenship was patrilineal, and so did nothing.

Questions:

• Was it in fact a requirement under s12(6)(b) by 1962 to intend to reside in the UK/colonies? The British subject did in fact do so around 1963 and likely 1962; we have some corroborating evidence and are hunting for more. How is "intention" measured in a historical context? This requirement is not mentioned at all in the home office guidance and may have been done away with in subsequent legislation (BNA 1958), but I can't tell.
• Section 4L seems to prefer cases of "automatic" citizenship; i.e. where the nationality status or entitlement was by statute and not by application (e.g. s4C(3C) BNA 1981). However, I can't see a way to remedy the gender discrimination in s12(6) without an application being made. Of course, one was impossible to make at the time. In later legislation, it is referred to as "provision for registration" (i.e. an entitlement) and not an application. Is an s4L case still valid?

Any help on the language would be appreciated; I seem to have stumped the nationality lawyers.

Thanks!

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Also to add, for the avoidance of doubt, that we are certain there was intent around 1962 (and prior), we are just unsure how to "prove" this intent other than the fact that they subsequently did make the UK their ordinary place of residence.

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Looking back over your post history, would I be correct in saying you have no UK-born ancestors?

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Hi there. That is not correct. I had an ancestor who, in 1962:

• was a Commonwealth citizen
• knew they were descended from an ancestor born in the United Kingdom in their male and female line, and what that relation was
• intended to be ordinary resident in the UK (and was so by 1963)

and was unable to apply under s12(6) BNA 1948 but because of the requirement for "legitimate (?) male line" in the transmission of UK citizenship abroad.

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

How far back are we talking?

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Quite a few from the CUKC citizen who suffered historical legislative unfairness, but we have enough records from the British Library to show descent (per the immigration attorney).

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

If it's further back than the grandparent then you will likely struggle to make a case. Could lay out your current thinking?

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Sent you a private message because this is currently being worked by immigration attorneys.
Happy to extract / post relevant snippets to the extent they are helpful to others after our own discussion.
Thanks again!

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

I doubt BiP will give advice via PM - the whole point of a forum is that all benefit from shared knowledge and info.

If you want answers to the questions in your first post (from anybody other than your lawyers) then please post any pertinent info here so that members can help.

Thx.

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Chris, I respect the nature of a public forum and have already mentioned that I would be happy to post an anonymous or synthesized result of the analysis for the benefit of others. I replied to every question except where it got into the precise details of a family tree.

The nature of s4L is that they are likely to concern private and exceptional events. Perhaps a family tree has illigitmacy. Perhaps it has a kidnapping. I do not accept that it is appropriate to post that publicly simply in order to access some crowdsourced guidance, and remain happy to answer most questions.

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Then I would leave it to your lawyers if you don’t want to share that info here. Have a look at other 4L threads to see what details others give to get advice - it’s not going to identify you in any way but all adds to the knowledge base and ‘pays it forward’ to others that follow. You can’t share any info given to you via PM as per site rules.

It may also be worth looking back at your other posts, where you’ve been given good advice.

Good luck.

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

christmasoompa is correct in saying that I prefer not to provide advice via PM for the reason she gives plus the fact that I am far from infallible and the collective wisdom of the forum can be brought to bear on any answer I give and offer a correction where necessary. I am happy to continue the discussion here however.

Let's assume for a moment that Section 12(6) registration was a possibility for the person you are now trying to register under Section 4L - if their descent from a UK-born ancestor was through the male as well as female line, where is the historical legislative unfairness?

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Thanks for the clarification on PMs, Chris. My other posts were not about this situation.

I saw you had made some edits to your reply: in reference to the first version of your post, "kidnapping" is explicitly one of the reasons covered by section 4L (as an "exceptional circumstance"), and legitimacy remains a concern among other s1(3) BNA 1948 countries. Again, my point is simply that keeping some things private while still trying to pay it forward should be one of the primary aims of this forum. I am more than happy to just, as you say, leave it to my lawyers, and am trying to engage here in part to pay it forward for other Commonwealth citizens (or their descendents) who might also be covered by s12(6) BNA 1948 but for gender discrimination in the female line.

The issue is that s12(6)(a) contains the usual "descent in the male line" discrimination that the Home Office has already tried to repair in s5(1)(b) BNA 1948 and Romein. Its repair was one of the primary legislative aims of section 4L. British nationality was passed abroad only through the male line until 1988.

Any Commonwealth citizen who intended to reside the UK and Colonies in 1960, and had some existing "close connection" to the UK and Colonies, could only register as a CUKC by declaration if their father's father's father was born in the UK, but not if their father's father's mother was born in the UK. That's the root of the unfairness.

Tying the claim together, we have:

• X was a British subject on 12.31.48 and a potential citizen of an s(1)(3) BNA 1948 country on 01.01.49
• Before 12.31.1962, X intended to live in the UK and Colonies and had a close connection to the UK and Colonies
• X was unable to register as a CUKC by declaration under s12(6) BNA 1948 because their [father's father's mother] was born in the UK, but not their [father's father's father]. Had their [father's father's father] been born in the UK, they would have been entitled to apply.
• Had X been able to do so, X would have automatically become a British citizen under s11(3) BNA 1981
• Therefore, an application may be made now under s4L

Now that I read it out it is actually a rather specific claim, but it has been confirmed by the attorneys to be a valid s4L claim nonetheless. I will keep you in the loop with any updates!

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

Okay, it's not the male line as it was the great-grandmother who was born in the UK. It's certainly a novel approach but the basic logic seems sound. If you're successful then it would potentially open up British citizenship to a vast number of new applicants so I'll be interested to see whether the Home Office allows it to go forward.

In answer to your original questions, the intent to reside requirement in Section 12(6)(b) doesn't appear to have been removed under the BNA 1958. however if you can demonstrate that the person in question did in fact move to the UK before 31 December 1962, then I would consider it to be fulfilled.

Section 4L doesn't like historical counterfactuals, so what may had happened as opposed to what did happen, e.g. assuming someone would have moved to the UK had they been able to become a citizen. However that doesn't apply to making an application for registration when the relevant person was not eligible to do so.

Re: 4L and s12(6) BNA 1948 / s11(3)(b) BNA 1981
 

This is why I thought to brainstorm it out here. In practice, of course, the major issue remains documenting descent. My hunch is that most applicants of s1(3) countries which did not have general birth registration prior to 1949 may find it quite difficult. Ours was a bit of special situation around documentation which is why a claim could be considered.

As for "intent to reside": the advice given was that employment, education, etc. are all considered a "settled purpose" -- it is about the type of life that was adopted at the time. Note that the registration entitlement persisted through 31 December 1962 so the actual ordinary residence could have begun in 1963 (as long as the intent and plans were present in 31 December 1962).