Spunkeroli

Hi everyone,

Hope you can assist me with my query. The law is so confusing!

I am moving to the UK later this year (had a working holiday visa back in 1996).

I am wondering whether I am entitled to apply for citizenship.

I was born in 1976 in Australia.

My father, a British Citizen, was born in India in 1944 while his father was serving in the British Army.

He married my mother, who was born in New Zealand, in 1970 while he was in the diplomatic service in South East Asia. She became a British citizen by registration.

Not sure whether I am eligibly, because while both of my parents are British citizens, I was born abroad.

Is the fact that my grandfather was serving in the Armed forces relevant?

Thanks for your help everyone,
Karen.

JAJ

Some good questions here. For sure your father was a Citizen of the UK & Colonies by descent. If he had left Crown Service by 1976 (had he), then you may not be able to claim citizenship through him. Would need to look at it in more detail.

Your mother's status is different and you might be able to claim citizenship through her, possibly, provided she registered as a British citizen (Citizen of the UK & Colonies) before you were born. Have you got the date on which she became a UK citizen? And was she registered in the UK or at a British High Commission?

Also, have you claimed the New Zealand citizenship to which you're entitled?

Spunkeroli

Thanks for your helpful reply!

He was, sadly, not in UK Crown Service when I was born. But I am wondering whether my grandfather's military service would be counted as Crown service, meaning that my father obtained his citizenship 'otherwsie than by descent.' Or were those rules brought in later?

My mother registered in 1970 at a British High Commission in Malaysia, and was therefore a citizen of the UK before I was born.

If my father is 'by descent,' does that mean my mother is also deemed to be 'by descent,' or does she get 'otherwise than by descent', meaning she can pass it to me?

And yes I have kiwi citizenship, but really want UK, for obvious reasons!

Thanks again!

JAJ

Good question! Only for any siblings you might have born in 1983 or later. On 1 January 1983 it appears your father would have become a British citizen otherwise than by descent because his father was in UK-recruited Crown Service when he was born.


As it appears that her was registered under section 6(2) of the British Nationality Act 1948 (wives of British women), for you it all hinges on how your mother obtained her Right of Abode in the United Kingdom prior to 1983.

You're in luck as she was married and registered as a Citizen of the UK & Colonies (CUKC) before 28 October 1971. This is the date the Immigration Act 1971 was passed.

One of the changes the 1971 Act made was to state that women registering as CUKC by marriage at a British High Commission were no longer deemed to be "registered in the United Kingdom" for the purpose of British nationality/immigration purposes. This closed a loophole where it was possible for the woman to be a UK-CUKC while the man, if from a colony, was a Colony-CUKC (this distinction was important prior to 1983).

As your mother registered as CUKC before 28.10.71 at a British High Commission she acquired Right of Abode in her own right and not as a result of marriage.

If we look at the three requirements for UKM (British mother) registration:

1. You were born before 1983 - YES.
2. You would have been a CUKC if women had been able to pass on British nationality the same way as men - YES, as your mother was a CUKC by registration, not by descent.
3. If you had been a CUKC would you have had right of abode in the UK immediately before 1983 - YES, as your mother was "registered" British and deemed to have been so registered in the United Kingdom itself.

http://www.ind.homeoffice.gov.uk/bri...britishmother/

If successful, you will become a British citizen by descent.


Right of Abode
By the way, you've always had Right of Abode in the UK based on your mother, since you have been a Commonwealth citizen since 1983 with a UK mother. http://www.ukvisas.gov.uk

ROA lets you move to the UK with all citizenship rights (except the British passport) and you could be naturalised British later on. Normally, though, it's best to claim British citizenship now. Especially as the requirements for naturalisation in Britain are becoming stricter.

You should have obtained this back in 1996, instead of the working holiday visa!


Australian citizenship - Possible loss
Since you were born before 1978, you had to get New Zealand citizenship by application. If you did this between age 18 and 3 April 2002, you lost your Australian citizenship as a result and need to apply for resumption if you want it back. What date does it say on your NZ citizenship certificate?

Spunkeroli

That is very encouraging, thanks. I had thought that she might be deemed to be 'by descent' due to the marriage, so it is good to know she acquired her own separate status - and a relief that she registered just before the law change!

Regarding right of abode (I hope I am not going off topic here), I was unable to find the relevant section of the UK visa website that captures my circumstances. All I could see was the reference to a female Commonwealth citizen married to a UK man before 1983, but not reference to eligiblity for the children of the marriage. If you could point me to the right section of the law and/or webpage that would be fantastic.

Thanks again, Karen.

JAJ

I actually stand corrected. For a Commonwealth (non-UK) citizen to have had Right of Abode before 1983, the mother had to have been born in the UK. Not naturalised/registered.

So you don't have right of abode - but you are eligible for British citizenship by descent.


What about your Australian citizenship ... did you lose it or not? If you did lose it, it doesn't matter if the Australian government know about it or not. All depends on when you became a New Zealander.

Spunkeroli

Thanks for the clarification JAJ, and for your super helpful advice!

Here's hoping my application will be granted - looking forward to returning to the UK.

Karen.

JAJ

As you have not answered anything about your Australian citizenship, I can only conclude that you became a New Zealander before 4 April 2002 (and after 18th birthday) and hence lost your Australian citizenship.

In this case, you should understand the following:

1. Your Australian passport is invalid and you should stop using it.
2. If you entered Australia using that passport, you are an unlawful non-citizen.

The better news is that:

3. Resumption of citizenship is now straightforward in cases like your provided you're of "good character" http://www.citizenship.gov.au/current/resumption/

4. You should be able to get a Special Category Visa stamped in your New Zealand passport to make you legal in Australia while your resumption application is processed.

Spunkeroli

Hi everyone,

Well, fast forward a few months and I am happy to say I finally have British citizenship. Thanks JAJ for your help! I have another query though, wondering if anyone can assist?

I entered the UK on an ancestry visa as my citizenship application was being appealed due to an initial refusal. My husband came here to the UK on an ancestry dependent visa. Just after that, my British citizenship was approved.

We want him to begin the process for ILR as soon as possible. Should he apply for a new visa as the spouse of a British citizen now, or should he wait until the end of his ancestry dependent visa, another 4.5 years? ie, does the five years on an ancestry dependent visa count for anything, or should he switch to a new visa ASAP to begin clocking up the time spent here?

Thanks for your help!

JAJ

He absolutely needs to switch to a spouse visa immediately. He cannot get ILR off an ancestry visa now, and the longer he waits to switch, the more problems he will have. ILR may be applied for 2 years after spouse status is obtained.

You don't say if you did your citizenship ceremony or not - but that has to be done before you become a British citizen.



Also, given that you appear to have lost your Australian citizenship, are you planning to get it back or not?

Spunkeroli

Hi, thanks for your speedy reply. Yes, I attended the citizenship ceremony. Also I have sorted out my other citizenship issues you identified, many thanks.

Just wondering, should my husband apply for 'extension of stay as the spouse or civil partner of a person present and settled in the UK,' or make a completely fresh visa application as a spouse of a British citizen?

We got married in Australia, but were not married at the time I applied for British citizenship. The marriage took place after his 'unmarried partner of ancestry visa holder' application was declined.

Thanks again.

JAJ

If by "sorted out" you mean that you applied for and were granted resumption of Australian citizenship, then that's ok. If on the other hand it means you have gone into denial of having lost Australian citizenship, then that is not good.

It's even possible that you could have lost your Australian citizenship as a child, depending if your parents had (and then lost) Australian citizenship.

There are literally thousands of former Australians out there who have decided not to use the resumption facility to get their citizenship back. Instead many choose to rely on invalid Australian passports and ignore that their status in Australia, after admission on such a passport, is that of an unlawful non-citizen.

As far as I can see, he applies for further leave to remain as a spouse. He can do this in-country because he was admitted for more than 6 months.
http://www.ukba.homeoffice.gov.uk/pa...lies/partners/

Spunkeroli

Thanks for your reply and guidance! All the best.

JAJ

We still don't know what happened here, but as a general point ...

... For the benefit of anyone else reading this thread, if you happen to be a former Australian citizen who lost citizenship upon becoming a citizen of another country before 4 April 2002, it is a bad idea to go into denial about having lost Australian citizenship.

There is a (relatively) unrestricted resumption facility in place since 1 July 2007, except for those who are not of "good character". Use it. If you choose not to, you should bear in mind a number of issues, including the following:

1. Your Australian passport, although it appears valid on the surface, is invalid. Because you're not an Australian citizen. Whether or not the Australians know this is irrelevant.

2. If you enter Australia using this passport, you are an unlawful non-citizen. In another country, Australia cannot give you consular assistance.

3. Wilful use of an invalid Australian passport may lead to a determination that you are not a person of "good character".

4. If it turns out you lost Australian citizenship under the old Section 23 of the Citizenship Act (which applied to children) instead of Section 17 (which applied to adults) then any children born to you while you are not an Australian citizen will not be eligible for Australian citizenship by descent.

chriswinter

I have a question, please. I am British born, still hold a British passport, but have lived for decades in America as a permanent resident. My 3 adult children were all born in America (1967-1972), their father being American. Do my adult children have 'right of abode' in England, based on their mother (me) still being a British citizen? I should also say their maternal grandmother and their great-grandmother were both British born as well. Also, to add...is there any application of 'right to abode' extended to grandchildren?

I have tried to understand the laws surrounding 'right of abode' at the UK govt site...but alas, am still left confounded.
Thanks in advance!