Buckle29

Hi everyone

I wonder if you can help, I think I am tying myself up in knots here and the UK Border Agency Nationality Helpdesk is being less than helpful, sending standard "here is how to apply for a passport" replies to my queries.

My husband and I are British citizens other than by descent (both born in the UK to many generations of British citizens).

I also have Australian citizenship and we are currently living in Australia.

I have a series of questions as below: -

1 - We had a daughter in Australia in 2012. She has an Australian passport but as yet we have not applied for a British one for her. I am concerned that if we apply in Australia she will only have British citizenship by descent. Is she considered Australian until we make the application for British citizenship?

2 - We are returning to the UK to live next year and from my reading of all of the websites and the legislation I note that if we apply for British citizenship for her after she has lived in the UK with us for at least 3 years she will obtain citizenship other than by descent. Is this correct?

3 - If so, I note we will require a Joining Family visa for her for when we return to the UK, which we will apply for as soon as possible, given the 24 week processing period here in Australia. Is this the correct visa?

4 - We have a family member who is quite ill in the UK at the moment. If the worst should happen, can we return to the UK with our daughter on any other visa whilst the Joining Family visa is still being processed? Or are we stuck here until that comes through?

I hope my questions make sense and you are able to assist. My main issue is that, if possible, I would like her to be able to pass in British citizenship to her children if she returns to Australia as an adult.

BritInParis

1. She is already British by descent. You cannot "upgrade" her status.
2. See answer 1.
3. She won't be eligible for a UK visa as she is a British citizen. You need to apply for her British passport if you are intending to return to the UK to reside.
4. See answer 4.

As the law stands as long as your daughter spends three continuous years in the UK at any point prior to the birth of her children then any children born abroad are eligible to be registered as British citizens. They will be British by descent under S.3(2) BNA 1981.

If your daughter lives with her children in the UK for three continuous years before registering them as British citizens then they will be British otherwise than by descent under S.3(5).

If her children are born in the UK then they will be British otherwise than by descent from birth under S.1(1)(a) and will be eligible to apply for Australian citizenship by descent.

Buckle29

Thanks!
If her children born overseas would be citizens other than by descent if she waits until they have all been in the UK for three years, is there any reason why we could not do that with her also?
Best wishes

BritInParis

It is because she has been British automatically from birth whereas any children she has overseas (presuming the father is not British otherwise than by descent) will not be British until they are registered.

Buckle29

Thanks!
It seems strange that she will have a lower status citizenship than someone who was not considered British (ie ability to pass it on as easily in future generations).
http://www.ukba.homeoffice.gov.uk/si...20?view=Binary
This does state that some people (mainly minors) may fit into more than one category (automatically by descent but no passport until in the UK after three years maybe?) and in that case they are given citizenship other than by descent.

See what I mean about getting myself tied up in knots?!!

BritInParis

A British passport does not confer citizenship. Rather British citizenship is required to obtain citizenship. Whether you apply now or later won't affect your daughter's citizenship status.

As for a "lower" status it does follow that a British citizen born abroad who then has resided in the UK for three years should be able to pass on their citizenship again rather than a British citizen born abroad who has never lived in the UK as they have demonstrated a commitment to the UK. Until recently three years residency was all that was required for a foreign spouse of a British citizen to naturalise.

There is the curious anomaly is that if your daughter married an Australian (i.e. a non-British citizen) and then they lived together in the UK long enough for him to be able to naturalise any children they then had overseas would be automatically British through the husband but not through your daughter despite the fact he gained his citizenship through her.

Buckle29

Got it. Sorry if I came across as stupid there! So basically we just need to apply for her passport before we go home. Then if she later returns to and has children in Australia they will be British by descent, or if they all return for 3 years then register, otherwise by descent. Phew!

http://www.ukba.homeoffice.gov.uk/si.../guide_mn1.pdf

BritInParis

Nearly

Providing she spends three or more years in the UK then any children she subsequently has overseas are eligible to be registered as British citizens by descent from birth.

If she and the children return to the UK, live there for three years (e.g. with UK child visas in their Australian passports) and then register they will receive British citizenship otherwise than by descent.

Both processes use Form MN1 and have to be done whilst under 18.

Obviously the law could change in the next 20-30 years but that's how it stands currently.

Buckle29

Brilliant brilliant brilliant thank you SO much for untangling me! I can't tell you how helpful and patient you have been