pier1

Appreciate the communities help with this conundrum, and apologies in advance for length.
I know it has most likely been covered in the plethora of other threads, but as each situation is unique, my head is spinning and more confused than ever.
Brief overview:
I was initially looking at the UK Ancestry Visa and was speaking with my cousin who suggested applying for British Passport as she was issued one in August 2018 after applying online.
Now my cousin was issued a BP on what she believes was our Grandfathers British Military Service in India (Captain)
I similarly applied for BP online and have been refused.

Ancestry:
Me
Paternal Grandfather born Portsmouth 1906
Paternal Grandparents (Grandmother born Melbourne Australia 1917) married 1935 in St Mary's Church Ajmer India.
Father born 1945 British Military Hospital Poona (Pune) India
My parents married 1969 in Brisbane Australia (Mother is Australian and has no immediate UK ancestry on her side)
I was born July 1973 Brisbane Australia
My cousin
Paternal Grandfather born Portsmouth 1906
Paternal Grandparents (Grandmother born Melbourne Australia 1917) married 1935 in St Mary's Church Ajmer India.
Father born 1944 British Military Hospital Poona (Pune) India
Her parents married 1970 in Brisbane Australia (Mother is Australian and has no immediate UK ancestry on her side)
She was born August 1973 Brisbane Australia

Now my analysis based on my bush lawyer research is:
The HMPO refusal letter states that the relevant Act used for assessment of claim is the BNA48 s.12(2)
As my father was born in 1945 in Poona India which was within the Crown’s Dominion, would not Section 1 (1)(a) or 1 (1)(b)(iv) of BNSA Act 1914 apply to my father i.e. he would, under the prevailing Act at the time of his birth, be “deemed” to be a natural - born British subject.
I would then apply BNA48 s.5(1) in that I am a British Citizen by decent by virtue of my father who is deemed to be a natural born British subject.

The conundrum is:
My cousin was born 4 days after I was in the same city/ country, her mother is Australian and has no immediate UK ancestry, her father, was born Poona India 1944 just 13 months prior to my fathers birth.
What am I missing here that my cousin would be entitled to BP, yet I seemingly with such similar UK ancestry as my cousin have been refused?

BritInParis

A grandfather in Crown service wouldn’t help if you were born before 1983. Your father may have been considered a natural-born British subject at the time of his birth in 1945 but it is his citizenship status at the time of your birth in Brisbane in 1973 that’s relevant by which time he would’ve been a CUKC by descent.

On the face of it I would say your cousin would not be automatically eligible for a British passport. Did her parents register her birth with the British High Commission?

pier1

Thanks for the response BritInParis , no her parents did not register her birth with the British High Commission.
The only variance in documents provided to HMPO was that her father still had his old British Passport issued 1991 which she attached a copy with her application.
We do not have an old passport for my father.
My father and his brother became Australian Citizens at the same time in March 1993.

Oh well, one of those vagaries I guess depending on who is reviewing application.
Still have the Ancestry Visa fall back.......

BritInParis

If your cousin is willing to help you then she can make a Subject Access Request to HMPO to find out exactly which sections of British nationality law the passport examiner was relying on when she was granted a British passport. It’s free of charge.

https://www.gov.uk/government/public...s-request-form

pier1

Ok thanks, will ask and update here if any further information available.

pier1

Hi BritInParis,
Family research would indicate that my Grand Father was recruited in the UK and served in the British Military before transferring to the IAOC.
Is the best course of action to find documentation of recruitment in the UK.
Sounds very similar circumstances to poptarvish in the British Citizenship/Passport by Double Decent thread
TIA

BritInParis

As mentioned a grandfather in Crown service is no good to you. The key difference between you and poptarvish because it was his mother rather than his father who was British. Was your cousin willing to help you?

pier1

Unfortunately not, she is too spooked by having been granted it but not myself.
Quite frustrating to have to navigate through inequitable gender rules, who would have thought.

Cheers

BritInParis

That is rather unhelpful of her. Can you provide a scan of your refusal letter with names appropriately redacted?

pier1

Thanks for your patience BIP, you always seem to go above and beyond.
Attached redacted refusal letter.
Documentation supplied originally to HMPO:
Grandfathers Birth Certificate - 1906 Southsea Portsmouth
Grandfathers Marriage Certificate - 1935 Command "T" Field Battery Royal Artillery at Nasirabad
Fathers Birth Certificate - 1945 British Military Hospital Poona (Pune)
Fathers Marriage Certificate - 1969 Brisbane
My Birth Certificate - 1973 Brisbane
My Marriage Certificate


Cheers

BritInParis

On the face of it I would agree with the passport examiner. Without your cousin’s cooperation I fear we’ve hit a dead end.

pier1

Appreciate the time.
I think my slow brain finally understands the difference with poptarvish
In my fathers case he had the opportunity under law to register my birth but didn't.
But due to poptarvish claim being through their mother the law didn't grant them equal opportunity to register their birth. Hence the new law to right the inequality?

Doing some further research, where do you think the Interpretations Act 1978 would fit into this conundrum.
Here is my thesis:
s16 General savings states where an Act repeals an enactment, the repeal does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. etc. etc.

Whilst the BNA 1948 is quoted as the prevailing Act upon which to rely to deny my father is a British Citizen otherwise than by descent.
Given my father was born July 1945 and taking into account s16 Interpretations Act 1978 would not the British Nationality and Status of Aliens Act 1914 (this is the relevant Act with amendments may father was born under) need to also be taken into account?
To wit:
s 1 Definition of a natural-born British subject
(b) Any person born out of His Majesty's dominions whose father was, at the time of that person's birth a British subject, and who fulfils any of the following conditions, that is to say, if either -
(iv) his father was at the time of that person's birth in the service of the Crown

The BNA 48 clearly affects the right or privilege that should be afforded to my father as a natural-born British subject under the 1914 Act

Anyway likely greater minds than mine have tried this and failed, it has been a fun bit of research in any case.

BritInParis

Correct.

The BNA 1948 replaced the BNA 1914 and so that was the relevant legislation in place at the time of your birth. I can’t give educated commentary on the other legislation you quoted but practically speaking it’s no longer in effect bar one or two paragraphs otherwise two billion odd people would still be British. Come back if your cousin ever changes her mind. If you can reassure her, a SAR isn’t going to trigger a reassessment of her claim. They’ll simply copy out the examiners shorthand notes into prose and send them to her in the form of a letter.

spouse of scouse

I hope this hasn't affected the relationship between you and your cousin. I can understand her being a bit spooked although I don't know if her concerns are warranted.

pier1