Kim Choo

I am keen to find out whether I am eligible for British citizenship/passport. Your advice would be greatly appreciated.

• My dad was born in Penang in 1934.
• I was born in Penang in 1956.
• I lived in London from April 1976 to February 1988.
• From April 1976 to October 1983 - I completed various nursing training courses and worked as a qualified nurse in between training.
• I obtained a permanent residence status in January 1984.
• From September 1984 - July 1987, I completed a degree course in London.
• I came to Australia in February 1988 - my husband was offered a job in Sydney.
• I was required to take up Australian citizenship in 1991 as I was employed by the Commonwealth Government of Australia.
• I did not return to the UK until 2005.

My son was born in London in July 1984. He has both British and Australian citizenship. He now works and lives in London with his wife.

I believe I was eligible for British citizenship had I known and applied for British citizenship before I left London in 1988.

I am keen to find out whether I am still eligible to apply for British citizenship. Alternatively, please advise whether I am now a British Overseas Citizen and therefore, there is no restriction (i.e. must not leave the UK for more than two years) on my permanent residency status.

I am also interested to find out whether my husband and daughter are eligible to apply for British citizenship.

My husband was born in Selangor, Malaysia in 1956. He was also studying and living in the UK from 1976 to 1988, and also had a permanent residency status (obtained in September 1983).

My daughter was born in Australia in July 1994.

louie

You probably need to give more information about your and your husband's parents - their citizenship at the time of your/his birth, where they were born, etc.

Kim Choo

Thanks louie. Not sure about my mum and mother in law but I believe my dad (born in Penang in 1934) and father in law (born in Malacca in 1930) were both CUKC by birth.

JAJ

From the Home Office Nationality Instructions discussing independence of colonies/protectorates and the loss of British nationality thereon:

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6.5 Malaysia
6.5.1 The Federation of Malaya was formed on 31 August 1957 of 9 Malay States (Protected States) and the colonies of Penang and Malacca. British protected persons lost that status on independence but there was no provision for the loss of citizenship of the United Kingdom and Colonies.

6.5.2 North Borneo, Sarawak and Singapore joined with those states to form the Federation of Malaysia on 16 September 1963. The Malaysia Act withdrew citizenship of the United Kingdom and Colonies on basically normal grounds but did not affect existing citizens of the Federation.

6.5.3 Therefore there was no provision for loss of CUKC for people who acquired that status by their birth or connection with Penang and Malacca before 31 August 1957. A person born there or legally descended from a father born there may have had an automatic claim to citizenship of the United Kingdom and Colonies - now they are mainly British Overseas citizens.

---------

In other words, your birth in Penang in 1956 made you a Citizen of the U.K. & Colonies. However, in order to become a British citizen on 1.1.1983 you needed to have acquired a Right of Abode in the United Kingdom. For Citizens of the U.K. & Colonies, this normally required:

- connection by way of birth, adoption or descent (up to grandparents, either paternal or maternal) with the United Kingdom itself, Channel Islands or Isle of Man ("Islands"); or
- permanent resident status plus 5 years residence in the U.K. (or Islands, in some cases) anytime before 1983.
- in the case of a woman, marriage before 1983 to a man with Right of Abode

You lived in the United Kingdom for 5 years before 1983 but you tell us you only became "settled" in January 1984.

You should check all of this with a good immigration solicitor to be sure, but as far as I can tell this means you did not become a British citizen on 1.1.1983. And since it appears you don't have ties with any of the British territories as of 1.1.1983, you would have become a British Overseas citizen on that date.

You could have applied for registration as a British citizen based on residence in the United Kingdom anytime between early 1985 and when you left, but that opportunity is now closed. Your son born in London is British because you had permanent resident status when he was born.

British Overseas citizen status is generally not transmissible, and it appears that your husband isn't British either, so your daughter born in Australia does not hold British nationality. She is of course Australian.

The only item of good news is that you do appear to be eligible for permanent residence based on section 17 of the Immigration Rules:

17. British Overseas citizens who hold United Kingdom passports wherever issued and who satisfy the Immigration Officer that they have, since 1 March 1968, been given indefinite leave to enter or remain in the United Kingdom may be given indefinite leave to enter.

You might need to check this with a solicitor but from my reading of that, your original permanent resident stamp could have been in a Malaysian or other passport. You just need to get a British Overseas passport now to benefit from this provision. The Passport Office can issue one to you.

Not clear whether it would be retroactive, however. What has been your visa status since 2005? And what visa do your husband and daughter have? (this is something that needs to be considered before you take any further steps).

I would recommend you take action on this immediately as the concession for British Overseas citizens is the kind of provision that could disappear from the Immigration Rules anytime. However, you also need to consider the impact on your husband and daughter. They won't necessarily get permanent residence automatically.

Kim Choo

Hi JAJ, thank you very much for your advice. I really appreciate that.

Unfortunately, it’s not good news for me - you have confirmed that I have missed the "British Citizenship” boat.

My husband, my daughter and I have since 2005, entered UK on visitor visas – as I was not aware of section 17 of the Immigration Rules. So, will I still be eligible for permanent residence as a British Overseas Citizen?

The question is where to from here? Should I still consult with a good immigration solicitor? If the answer is “yes”, is there anyone you would recommend?

JAJ

How have you managed to live in the U.K. as visitors? Did you overstay your admission, or keep making a series of visits?



It appears that you may be eligible. HOWEVER, you would probably have to sponsor your husband for a spouse visa and the rules are much stricter since July this year. And your daughter is now aged 18, which could make her situation a lot more difficult.

Presumably in all of this - your husband didn't take out British citizenship after he became a permanent resident in the mid 1980s.


Absolutely go to see an immigration solicitor. I can't give a specific recommendation but you could get a list of accredited specialists from the Law Society.

Kim Choo

My apologies – I have just realised the statement ‘I did not return to the UK until 2005’ was in fact misleading. I am still living in Australia but my family and I have returned to the UK for a number of short visits since 2005.

Now that my son has returned to live in the UK, I thought I should look into whether I am still eligible for British Citizenship or alternatively, whether I am still eligible for permanent residence as a BOC.


In relation to section 17 of the Immigration Rules, will my Australian citizenship affect my BOC status?

My husband did not take out British Citizenship either as we were both not aware of our entitlements.


Thank you very much, I will definitely do that. Thanks again for your advice.

JAJ

You need to check with a good immigration solicitor to be sure, but I think there is a good chance you could be readmitted for residence as a BOC.

Are you planning to visit the United Kingdom soon? If yes, you could acquire a British Overseas passport and present it on arrival with evidence of your previous ILR (plus a print-out of Section 17 of the Rules) and see what happens.

Once you re-establish your ILR, you could sponsor your husband for a spouse visa however the rules (since 9 July this year) are much stricter and he would be stuck on temporary status for 5 years. And I am not sure what visa would apply to your daughter, as she is aged 18. Definitely check that with a solicitor to see if she can be sponsored as a child/dependent if she is aged 18+ but you have to also ask about permanent residence. Temporary admission is no good if she will have to leave later on.


No. Acquisition of Australian citizenship does not (and did not) cause loss of British Overseas citizenship.

There are now provisions for those BOCs who do not have another nationality (and have not lost another nationality since 4 July 2002) to become a British citizen by registration, however since you're Australian these won't help you.

I am not aware of anything in the Immigration Rules that takes away your eligibility for re-admission since you are now Australian+BOC, although this is something that could be changed anytime.


That is unfortunate. Is he now an Australian citizen too? It would be even worse to leave behind another opportunity. Assuming he is happy to cease being a Malaysian citizen.



Make sure you get advice (from the solicitor) in writing and be prepared to pay for a professional service.

One further thing to do. Make sure you get an Australian citizenship certificate for your daughter. An Australian passport is NOT sufficient evidence of citizenship and since she was born after the law change in 1986, her birth certificate won't do either.
http://britishexpats.com/wiki/Eviden...an_Citizenship

Kim Choo

Thank you very much, JAJ.

I will take your advice about consulting with a good solicitor to confirm my eligibility for re-admission for residence as a BOC. Once that’s confirmed, I will apply for a British Overseas passport and take it from there. I will also check with the solicitor about sponsorship for my husband and my daughter.

I note the urgency of this matter.

Yes. My husband is now an Australian.


Thank you very much. I was not aware of the law change in 1986 and the need for my daughter to obtain the relevant evidence of her Australian Citizenship. I have now contacted the DIAC and my daughter will apply for an Australian citizenship certificate.

Just wondered how many people out there like us are aware of this requirement.

c610

Dear JAJ and Kim Choo,

I have read the above posts with interest. I wonder how your inquiries have progressed, Kim Choo, and whether either of you might be kind enough to share your thoughts on my own, not-dissimilar situation.

-All four of my grandparents were born in China.
-My father was born in Alor Setar, Kedah, Malaysia in 1950.
-My mother was born in Jasin, Malacca, Malaysia in 1955.
-I was born in Australia in 1986.
-None of us have lived in the UK.

My understanding is that my mother may have become a British Overseas Citizen on the 01/01/1983 based on her place of birth.

I wonder whether there is any way in which this may also make her eligible for permanent residence/indefinite leave to remain as a BOC.

Following this, I wonder whether there is any way in which she could then sponsor me and my spouse.

I’d be very grateful to hear opinions from either of you on my situation, how you have progressed Kim Choo and (if my situation seems possilbe) whether you ended up finding a good solicitor you could recommend.

Thanking both of you in advance!

JAJ

It appears your mother may be BOC based on her place of birth (Malacca colony). Is she also an Australian citizen?

British Overseas Citizenship does not carry a right of abode in Britain. The case of the original poster is a little different, as she had lived in Britain in the past and acquired permanent residence. Being a BOC doesn't make it easier to get permanent residence, but one of the few benefits of being BOC is that it can be easier to retain permanent resident status in the United Kingdom.

Unless there is some other U.K. tie not mentioned that would have caused her to acquire a Right of Abode in Britain before 1983.

I doubt it. Note that BOC status is not normally transmissible to children born in 1983 or later. But you can always research further at http://www.ukba.homeoffice.gov.uk

scaro

i have not gone into this for a couple of years. but i think the conclusion we reached when we looked at this for ex-malaysian BOCs, was that if there is any other citizenship a child with a BOC parent could get, then he or she would not be able to get BOC.


that said, a child who is born a BOC would -i assume- be able to register as british ; he or she will not have, after 4 july 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality.

ben

JAJ

Generally speaking, BOC status is not transmissible. In other words, a child born in 1983 or later to a BOC parent (or even two BOC parents) does not acquire BOC.

There are exceptional circumstances in which BOC may be acquired by a child born in 1983 or later, but these usually involve both statelessness and some kind of connection with the U.K., a territory, or in some cases, Hong Kong. In an exceptional case, for example if both parents were BOC, and the child was stateless, child could be registered as BOC at discretion of the Secretary of State.


Children (as well as adults) can be registered as British citizens under section 4B of the British Nationality Act 1981, British citizenship for otherwise stateless British nationals. Although relatively few children are eligible.

Note that if a BOC child has (or acquires) another citizenship then he or she becomes ineligible for section 4B registration. However, if another citizenship is acquired after section 4B registration, then British citizenship is not lost. Although it is British citizenship by descent, so will not automatically pass on to the next generation born outside the United Kingdom and its territories.

scaro

one thing that interested me was whether SoS might take the tack of arguing that a child had not acted to take up a citizenship he could have had. i do not know whether the 'voluntarily' applies to the 'lost through inaction'.

B.