fabinit

Hello Everyone,

I am struggling with this very very particular case and I haven't found any similar situation, it would be of so much help if anyone could definitely give me an answer.

I was born in Brazil, 1989 to a British father and a Brazilian mother. My parents were never married and don't intend to do so. I have my birth certificate with his name on it. I know that as a general rule I am not able to apply for british citizenship, nevertheless, I saw in many government documents that there is an exception regarding the domicile of the father.

My father moved to Brazil in 1980 and when I was born he was domiciled in Brazil (working, buying property, etc). He still lives there, is retired and plans to live the rest of his life there. He never went back to Britain after 1980, not even for visiting.

Brazil doesn't distinguish between illegitimate and legitimate children, they are all equal.

Considering all the above, I am still unsure and I seem to find a lot of mixed up information on the government website. I heard many similar cases, but all from people born in former British colonies, which is not the case.

If anyone could clarify whether I have a claim to british citizenship or know any similar case I would be very grateful.

Thanks a lot.

Shirtback

Have you checked here:

https://www.gov.uk/check-british-citizen

S

Gozit

I checked using SB's link, this is what I got. https://www.gov.uk/check-british-cit...ry-1983/no/yes

It says -

"If you were born before 1 July 2006 and your parents weren’t married when you were born (and haven’t married since), you’re not a British citizen."

So looks like as you said, a general rule, no. I personally think that is absurd as marriage is a personal decision and tbh it seems very medieval to govern nationality by descent based on marriage. Reminds me of the whole "British wife who marries a foreigner loses British nationality" thing that was back in the old days. Looks like as of 1 July 2006 they changed the law but they should of made it retroactive to include anyone born before that date.

Maybe there are exceptions now. Are/were your parents in a common law relationship?

Shirtback

Oops, I sent that link too fast . Please note that the gov website, & its search functions are very hopeless.

I am searching for a reference to the law that says, a child born overseas, before 2006, to an unmarried British father, *is* a British citizen by descent, *if* the country of birth doesn't differentiate between legitimate & illegitimate children.

(I used to have it bookmarked, but it's moved )

I'll be back

Found it! Right here on good old BE: http://britishexpats.com/wiki/Britis...rried_Fathers; point 3,

And:

https://www.gov.uk/government/upload...d-domicile.pdf, page 2, paragraph 2

S

englishguygoinghome

Yep, although it may be simpler to ignore the question of whether legitimacy is relevant and to register at the home secretary's discretion as described on page 12 of the official guide to form MN1 (https://www.gov.uk/government/upload.../MN1-guide.pdf)

BritInParis

Form MN1 would only work if the OP was under 18. As HMPO aren't exactly covering themselves in glory at the moment processing overseas applications I would make an application to the Home Office using Form NS and include a domicile questionnaire completed by your father. If the response is positive then use the Home Office letter to apply for your passport.

englishguygoinghome

Oops - forgot to do the maths regarding age!

fabinit

Thanks a lot everyone for the responses! Yes, I agree that this some sort of medieval rule and shouldn't exist in the 21st century. =( Yes, my parents were in common law marriage for 5 years (acording to brazilian law, which states that living together for 2 years is considered common law marriage, or stable union). I don't know whether it could help though =/

BritInParis, seems like the form NS is my option right now. Would you know whether I should attach any legal advice in writing? Or just the necessary documents and the domicile questionnaire?

Here is what I found:

''In UK law, when considering questions of legitimacy, we look at the law of the
place where the father was domiciled at the time of the child’s birth. If that
law treats a child as legitimate, then UK law will likewise recognise that status
[Hashmi v Hashmi (1972)].
Therefore, if there is no concept of illegitimacy according to the law of the
place of the father's domicile at the time of the child's birth, the child born
outside a marriage will be considered legitimate in UK law irrespective of
whether the child's parents subsequently marry. Such a child will have a claim
to British Citizenship.

on this guide: https://www.gov.uk/government/upload...d-domicile.pdf

Nevertheless, the guide states at the beginning that it is focused only on subsequent marriage. Mixed up informations agaain!

Again, thanks a lot everyone =D

BritInParis

That guide is not wholly correct so I wouldn't rely on it. No need to attach any legal advice, just the completed form, your father's full British birth certificate and your full Brazilian birth certificate (with a certified English translation if necessary) together with the completed domicile questionnaire. If you have a Brazilian passport then you can include a copy of that too.

You should also enclose a covering letter as well explaining your circumstances and why you think you have a claim. Don't forget to put your contact details in the letter including your email address.

JAJ

It's not "some sort of medieval rule". It reflects the fact that (until recent decades), fathers who were not able or willing to marry the mother often did not generally have a close relationship with their child. Hence, most countries thought it inappropriate to confer citizenship solely on the basis of an unmarried father. And most countries, at least most Western nations, have changed these rules. But usually not retroactively.

Normally, those with a claim to British citizenship through an unmarried father have to apply for registration by age 18, or the opportunity is lost.

However, under Brazilian law, it appears that there is no legal distinction between those born inside and outside marriage. For example, see Article 227, Paragraph 6: http://web.mit.edu/12.000/www/m2006/...llr3/const.htm The Constitution was ratified on October 5, 1988, and assuming this text was in the original version, then if you can show your father was domiciled in Brazil in 1989 you may have a claim to British citizenship.

You shouldn't assume that the Home Office will know Brazilian law, so send copies of information supporting your case. Also, send any evidence (copies will do) of your father's permanent resident status in Brazil. If he became a Brazilian citizen, that adds to the scope to evidence a change in domicile.

Gozit

Yes it is. It isn't correct to distinguish fathers from mothers, that is called gender discrimination.

fabinit

JAJ, thanks for the information. I will send the supporting documents, but I am aware that it is a very hard case.

Regarding the medieval rule, I agree that some unmarried fathers are sometimes not very close to their children. Nevertheless, imagine the case of two siblings, one born before 2006 and the other born after this date, from the same mother and unmarried father. One is legitimate and the other is "illegitimate". How ridiculous is that? I won't even start discussing that the therm "Illegitimate" itself is very degrading for the child and the father. Also, is a sexist rule that distinguish mothers from fathers.

Anyway, thanks a lot for the responses, it will probably take a while to gather all the documents and send them, but I'll post the outcome of the situation. =D

Gozit

Exactly. In that situation the fact that one of the children would be guaranteed British citizenship whilst the other is not is ridiculous.

JAJ

The harder part is evidencing a change of domicile. It is possible to lose a U.K. domicile but it requires a permanent settlement in another country, with intention to remain indefinitely. A mindset of "England/Scotland (etc) is home", especially if supported by actions, suggests that domicile may not have changed.

In fact, as far as the U.K. is concerned, both are illegitimate. It's simply that the consequences of this for nationality purposes were changed as of July 1, 2006. An unmarried father normally counts as the father for nationality purposes in post-2006 cases (if named on the birth certificate, etc) - but not if the mother is married to someone else.

What about the one born before July 2006? That sibling can be registered as British under section 3(1) of the British Nationality Act 1981. As long as application is made before age 18. That policy goes back to the year 2000.

By the way, other jurisdictions (such as some Canadian provinces and Australian states) have similar law to the U.K. In other words, the consequences of illegitimacy have mostly been removed but the status remains embedded in the law.

Gozit

So if a child was born to a wife that was cheating on her husband, and the man she was cheating with was British, the child would not be a British citizen, even if he is named on the birth certificate? Bizarre. In that situation it is the wife at fault for cheating, yet the father is still penalized? Gender discrimination, again.