Chandler

I've done plenty of reading (is it possible to do too much?) I and want to quickly sanity check my understanding. All comments are very much appreciated.

We returned to the UK in July of this year with two children (5 and 2), both of whom were born in America. They are currently here on 6mth visitor visas.

It was our intention to apply for citizenship but currently they would only qualify for citizenship without the ability to confer citizenship to their children by decent because we have not been in the country for three years at the date of the application.

The alternative is to apply for them to become permanent residents and then apply for citizenship once the requisite three years on UK soil has been accomplished.

The only pitfalls of this approach that I see is a) the considerable extra cost and b) that the rules are subject to change over the intervening three years.

The cost part I can reconcile because I don’t want to explain to my daughters in the future how we have potentially snookered them with regard their children and my grandchildren. The potential for rules to change I presume I can stay ahead of with careful monitoring.

Does anyone disagree with the understanding?

englishguygoinghome

I take it you were born outside the UK, so are a citizen by descent yourself but have lived int he UK for at least 3 years before the kids were born?
If you are a citzen other than by descent (usual case is born-in-the-UK), and are either the mother or were married to her when the 5 year old was born then the children are already citizens by descent and you can't change that.
If you do have a choice about how to get citizenship then yes, the cost is very different (you'll need your kids to be on proper visas, not visitors and they will need to leave the country to get those) particularly if your spouse is not a citizen. You always run the risk of being blindsided by a change - the last one came through with only a few weeks where the details were known before they came into effect

Chandler

Both my wife and I are British by birth as are our parents. Conferring nationality by decent is not an issue for us. My question/thinking is guided by the difference between an application under section 3.2 vs 3.5.

3.2 will not all our children to register their children as British by Decent should the need ever arise in the future
3.5 will grant them, for want of a better word, 'full citizenship' as if they were born here and consequently allow them to bestow British by Decent upon their children should the need ever arise

The problem with an application under 3.5 is that the applicant (my children) must have been present on British soil for three full years prior to the application. This is not the case for the 5yr old and it is impossible for the 2yr.

As a result, to qualify for an application under 3.5 I need to wait for the requisite time to elapse. My only option therefore is to apply for permanent residency under SET(F).

Does that make sense?

englishguygoinghome

Yes it makes sense. But if the children qualify for automatic citizenship - i.e. if one of the parents is British other than by descent then you have no choice. You don't need to, and will be rejected if you try to, register. They already are citizens by descent. All you can do is bring them to the UK for three years so that their children can register under 3.2 if born abroad.
It sucks, my son is in the same boat and our great-grandkids would be better off if he were not a citizen at birth but at the moment that's how the law is written.

BritInParis

englishguygoinghome is correct. Your children are already British by descent under Section 2(1)(a), but will be able to register any of their children born abroad under Section 3(2) once they have spent three years in the UK as the law currently stands.

Chandler

Wait... now I am confused.

Here is what I hold to be true:

i) An application for citizenship under 3.2 will NEVER allow the applicant to confer citizenship to their child if said child is born outside of a British terriority (with some exceptions, like Crown Service)
ii) An application under 3.5 will allow the applicant to confer citizenship to their child if born outside of a British terriority.

This would imply that there are different tiers of British Citizenship which I find unplatable but that I cannot dissprove with my reading of the regulations. This is futher enforced here: http://britishexpats.com/wiki/Britis...hip_by_Descent

I rang the government help line today and they confirmed my understanding (unless I phrased the question incorrectly) and recommended the SET(F) until such time has passed that I could make an application under 3.5.

BritInParis - are you suggesting that if they are British by Decent, have children abroad, and then return home a 3.2 application is not open to them as an avenue for their child but that after 3yrs a 3.5 application would be (assuming the law then is the same as today)?

BritInParis

I think you might be confused or we might not be in possession of all the facts. Let me break it down, chapter and verse style.

My assumption is that you and your wife were born in the UK to British parents. You therefore derive your British citizenship through Section 1(1)(a) of the British Nationality Act 1981 if you were born on on after 1 January 1983 or Section 11(1) of the British Nationality Act 1948 if you were born between 1 January 1949 and 31 December 1982. Both of these options make you British otherwise than by descent

Your children were born in the United States. They are therefore are natural-born US citizens and British by descent through you and your wife, Section 2(1)(a) BNA 1981. This occurred automatically at birth and cannot be changed retrospectively.

You returned to the UK with your children travelling on US passports in the hope that, after three years, you could apply for registration under Section 3(5) BNA 1981 which would give them British citizenship otherwise than by descent and allow them to pass on their British citizenship to any of their children born overseas automatically. However this is not possible as your children are already British citizens by descent under Section 2(1)(a) and have been since birth.

In the scenario in which your children grow up and have children of their own outside the UK, those children would not be British at birth automatically unless:

- The other parent was British otherwise than by descent
- Your child or the other parent was in Crown, designated or European community service

The former would give your grandchildren the same status as your children, British citizenship by descent under Section 2(1)(a) and the latter would give them British citizenship otherwise than by descent under Section 2(1)(b) or 2(1)(c).

If neither of those caveats apply then your children would need to apply for British citizenship by registration for your grandchildren. They would have several options.

Section 3(2) allows for a British citizen by descent (e.g. your children) to apply to register a child born outside the UK as a British citizen so long as they have spent three consecutive years in the UK prior to the birth of a child with no more than 90 days absence per year. This is the easiest option although it will only convey British citizenship by descent and any great-grandchildren cannot be registered in the same manner if the same circumstances occurred again.

Section 3(5) allows for a British citizen by descent (e.g. your children) to apply to register a child born outside the UK as a British citizen so long as both the parent and the child have spent three consecutive years in the UK with no more than 90 days absence per year. This would require your children to bring their children who had been born overseas to the UK to live without first registering them under Section 3(2). In this scenario they would be travelling on the passport of another citizenship e.g. their US passports as they would be US citizens by descent. They would therefore have to apply for the relevant visas, which is a more complicated and expensive procedure, but after registration under Section 3(5) they would become British citizens otherwise than by descent which would allow them to pass on their British citizenship to their children (your great-grandchildren) if they were born outside the UK.

In either scenario if your grandchildren are born in the UK then they'll be British otherwise than by descent at birth.

Of course this all presuming that British nationality law doesn't change in the next 50 years or so!

Chandler

BritInParis - That is brilliant. If you were BritInCheshire I'd buy you a pint or two. Thank you very much for taking the time out of your day to set me straight.

Your understanding of our situation with regard the various places of birth is correct. It would appear that I was getting caught up on the 3.2/3.5 type of application when in fact that is not applicable to us but might be to our grandchildren should the need ever arise, In short, I was a generation too early.

Final question: If our kids are British under 2(1)(a) how do I register them as such?

BritInParis

Not a problem British nationality law is probably one of the, if not the, most complicated citizenship law in the world. You were correct in your surmising but like you said a generation out.

Consular birth registration for your children is available as 2(1)(a). You can apply in the US to the British Embassy in Washington DC or via the FCO in King Charles Street in London if you want to apply after you return.

Either way you'll get the same British style birth certificate stating your and your wife's nationality status and your children's and certified copies will always be available for a small fee which makes any future citizenship applications a lot easier.

https://www.gov.uk/register-a-birth