jmin

Where were your father’s grandparents born? Both paternal and maternal.

WarrenZA

His paternal grandfather born in India in 1889 and grandmother in India (but I'm not sure, and there's a small chance that she was born in Jinja, Uganda).
His maternal grandfather in 1897 and grandmother in 1899, both born in Natal, SA.

jmin

Besides the (currently challenged) BNA 1981 8(1) route, there is a second route for those married before the enactment of IA 1971. Given the Home Office's current guidance, this would likely also be challenged, although it seems that this has not yet been tested. There's an alternate path I mention further down, but first the second route:

The argument would be that BNA 1948 6(2) discriminated based on gender in that only the wives of CUKCs could register, but not husbands. If not for gender discrimination, your father could have registered as a CUKC prior to IA 1971 coming into force. (marriages after IA 1971 would not give spouse RoA under IA 1971).

If your father had been able to register under BNA 1948 6(2), IA 1971 2(2)(a) would have given him right of abode as the husband of a CUKC if not for gender discrimination. (Your mother had RoA from IA 1971 1(b)(i))

Therefore, if not for gender discrimination, your father would have become a British Citizen by BNA 1981 11(1) as he would have been a CUKC with RoA.

As I said, I believe this route would also be challenged. Although not the same situation, the Home Office has an example of a man who married a British woman in 1975 - so could not have derived RoA from IA 1971 - therefore this is a BNA 1981 8(1) example:
"Section 4L predominantly seeks to address previous unfairness where women or their children missed out on citizenship.However, the intention in addressing inequalities in such circumstances is to ‘level-up’ so that a woman has the same rights as a man. Section 6(2) of the 1948 Act reflected the then assumption that a woman’s status should follow that of her husband, which in turn, reflected the wider underlying policy that citizenship could only be acquired via the male line. We do not think it appropriate to replicate that position for men. Unless there are exceptional circumstances, it would not normally be considered appropriate to register George under section 4L."

Kenya Connection

Your father's Kenya connection (his father was born in Kenya) and the fact that none of your father's grandparents were born in Kenya is interesting. (Your paternal grandfather was technically born in the East African Protectorate which later become Kenya Colony and a small Kenya Protectorate). This could mean that his father was a CUKC and remained a CUKC after Kenya Independence Day. If that's the case, then your own father could have been a CUKC by descent and remained a CUKC when he married your mother, although I am unsure how that would have been affected by South Africa's nationality laws/Citizenship Act 44. It would be worth looking into this because if your father remained a CUKC then he would not have to rely on BNA 1948 6(2) - only IA 1971 2(2)(a) giving him RoA. The guidance I mentioned above goes on to mention the difference between registration and automatic citizenship entitlements. So your father's claim could be allowed if your father was already a CUKC and the gender discrimination argument relates not to a registration entitlement under 6(2) but to RoA. He would have what they appear to consider an automatic citizenship claim if he did not have to rely on BNA 1948 6(2) and only IA 1971 2(2)(a) since BNA 1981 11(1) is automatic. As far as I can tell, this appears to be a new idea that Gamble/Sable/other immigration specialists has not yet noticed (although they have noticed the IA 1971 RoA angle for other types of claims). CUKC man without RoA married to a CUKC woman with RoA before IA 1971 came into force > BNA 1981 11(1).

So if your father was a CUKC then he would argue that, if not for gender discrimination, he would have had RoA under IA 1971 2(2)(a) and therefore have become a British Citizen under BNA 1981 11(1).

Unless BritInParis has other thoughts about this (the gender discrimination angle and whether your father was actually a CUKC given the South African birth), I think this is something you might need specialist assistance with if your father actually wants to move to the UK.

WarrenZA

Hey @Jmin, thank you! I'll take some time to work through your replies carefully.

Taking a stab at a layman's explanation...I'm guessing that my grandfather become a CUKC at his birth in East Africa (BNA 1948 5(1)(a)).
My dad becomes a CUKC by descent at his birth (in March 1949) and later also becomes a South African Citizen on 29 June 1949 (when Act 44 gained ascent). Unless I'm missing something, gaining SA citizenship by birth didn't end the entitlement to CUKC citizenship (in the same way that in 1949, my mother also became an SA citizen by birth but didn't stop being a CUCK by descent). The difference is that she had ROA on account of her dad being born in the UK. And, that if things had been switched around, my dad could possibly have gotten ROA because he married my mom before 1971?

No pressure to reply, appreciate the time you've already spent on this!

If we go this route, will definitely recruit some specialist input for the application. Here's hoping the Home Office guys end up reviewing their stance on your first two scenarios (IA 1971 and BNA 1981) to open something up.

Thanks again for your help!

jmin

I will look at this a bit more in the next few days. You would need to show what status his father had when he was born in 1914 (not BNA 1948 and also what month in 1914 was he born?), how this changed when the East Africa Protectorate became Kenya Colony and Kenya Protectorate, how his father escaped the loss provisions on Kenya Indpendence Day, how your father became a CUKC by descent, how - if not for gender discrimination - your father could have had RoA through his marriage to your mother before IA 1971 came into force, and how that would have been automatically classified as a British Citizen under BNA 1981.

Do you know where in Kenya his father was born? The Kenya Colony and the much smaller Kenya Protectorate are treated differently. Do you have any of his father's old documents such as a passport? You would also need to show that only his father was born in Kenya.

Do you know when they moved to SA? What was his father's citizenship at the time of your father's birth?

jmin

If his father was not already a British subject at birth, his father would have become a British subject when the East African Protectorate was annexed in 1920 to form Kenya Colony. In addition, his father was likely a British subject before this because when BNA 1914 came into force in 1915, he would have been a British subject by 1(b)(i) since his father was born in India. At the time of his birth, the UK had ETJ (extra-territorial jurisdiction) in the East African Protectorate so I think not everyone would have been a British subject.

His father would have become a CUKC by BNA 1948 12(1)(a) because he was born in what was, at the commencement of the act, Kenya Colony and would have been a citizen if section four of the act been in force at the time of his birth. He was not a "CUKC by descent only" because BNA 1948 12(8) specifies who is by "descent only" and 12(1)(a) is not included.

His father would have remained a CUKC after Kenya Independence Day and never become a citizen of Kenya because neither of his parents (your own father's paternal grandparents) were born in Kenya (they were born in India or possibly India and Uganda, you would need to show proof). Specifically, the Independence Constitution of Kenya states in 1(1):
"Every person who, having been born in Kenya, is on 11th December 1963 a citizen of the United Kingdom and Colones or a British protected person shall become a citizen of Kenya on 12th December 1963:
Provided that a person shall not become a citizen of Kenya by virtue of this subsection if neither of his parents were born in Kenya."

Your father would have been a CUKC by descent by BNA 1948 5(1).

Your father and mother married prior to IA 1971 coming into force so the ROA marriage provisions would apply to their marriage. (marriage certificate)

Your mother had right of abode through IA 1971 2(1)(a)(i). (You would have to show proof and since her father was born in England that would be his birth certificate, which is simple to order.)

If not for gender discrimination, your father would have had right of abode through IA 1971 2(2)(a). Here, note that CUKCs are also commonwealth citizens. You can see the guidance confirming that CUKCs are included in the meaning of Commonwealth Citizens for ROA from 2(2) at the link below, refer to page 5.
https://assets.publishing.service.go...t_of_abode.pdf

If not for gender discrimination, your father would have automatically become a British Citizen by BNA 1981 11(1) because he was a CUKC and would have had the right of abode under IA 1971.

IA 1971 2(2)(a) is unfair in light of the new Act because men and women were treated differently (wife of a man with ROA had ROA, husband of a woman with ROA did not). You will have to show that this argument conforms with their current guidance. They have two sets of examples:
https://www.gov.uk/government/public...ard-accessible
https://assets.publishing.service.go...stances_V2.pdf

In the second link, you will find Example 13 - man married to a CUKC woman. Note that the guidance including this example was published 14 October 22, while the first link was updated in 1 December 2022 and does not include this example. Example 13 is about a man who married a CUKC woman in 1975 whose father was born in the UK. The man was not a CUKC (unlike your father, also the marriage was after IA 1971). The applicant's argument in the example is that he would have been able to register as a CUKC under BNA 1948 6(2) if not for gender discrimination and presumably could have become a British Citizen by BNA 1981 8(1). The Home Office does not believe this claim should be allowed. They have this to say:
"Section 4L defines ‘historical legislative unfairness’ as including circumstances...This was generally intended to cover cases where people would have become British automatically rather than by registration or naturalisation."
"Section 4L predominantly seeks to address previous unfairness where women or their children missed out on citizenship."
"Section 6(2) of the 1948 Act reflected the then assumption that a woman’s status (my note: 'status' refers to citizenship) should follow that of her husband, which in turn, reflected the wider underlying policy that citizenship could only be acquired via the male line. We do not think it appropriate to replicate that position for men."

The Home Office believes, at least when the disadvantaged person is a husband of a British Citizen, that 4L intended to cover automatic claims and not those that rely on registration or naturalisation. So if a man can show that, if not for gender discrimination, he would have automatically become a British Citizen when BNA 1981 came into force - and without making use of any registration provision such as BNA 1948 6(2) - then the Home Office should approve the claim.

Your argument is that if not for gender discrimination, your father would have automatically become a British citizen by BNA 1981 11(1) since he would have had ROA by IA 1971 2(2)(a). His claim does not rely on a registration (such as BNA 1948 6(2)) or naturalisation provision and, therefore should be allowed under the caseworker guidance - because it's an automatic claim. It would be important to clearly note that this is not a BNA 1948 6(2) or BNA 1981 8(1) registration claim since they are currently denying spousal claims from men that rely on registration.

Also note that the example says 6(2) "reflected the wider policy that citizenship could only be acquired via the male line". Here you are not making an argument about BNA 1948 6(2) or citizenship at all. You are making an argument about ROA and this is not tied to that underlying assumption, it's gender discrimination in the legislation.

I could have neglected some issue, this is only a hobby of mine and I try to help where I can. You would need to submit documents as noted earlier. Since your father is older now and this is relatively novel, I would use an immigration advisor if he wants to move to the UK to avoid delays or denials. If it's just to have, then that's a different story.

BritInParis: Do you forsee any issues with this argument?

WarrenZA

jmin , thanks for your detailed replies and being willing to help so freely! I'm sure you'd be out of the starting blocks right away if you offered your advice professionally.

There's plenty of homework here for me to get on with that will keep me busy for some time yet.

I don't foresee my parents making a permanent move right now (they're still active and involved in heaps over here), but that could look very different if my sisters and I all end up in the UK--and it would be great to have the peace of mind knowing that if my mother were to predecease my dad, he'd be free and able to join us without hindrance.

Thanks again!

In the meanwhile, will post updates here on my own application when I have news.

shez83

Hi all

I have tried to read all the threads but a bit lost how to word my claim in this regard, as just changing father to mother does not seem to work. Some help would be really really appreciated.

Born: 1983 in South Africa
Mother born: 1944 in South Africa
My parents' marriage: 1979
Maternal grandfather born: 1919 in UK
Maternal grandmother born: 31 May in South Africa
Grandparents marriage: 1943

The only link to UK is through my grandfather, everyone else is SA based (my father, his parents)

Thanks,

BritInParis

My advice remains the same: British citizenship by descent- grandfather crown service