pallykin

Thank you so much for your help.

i was actually thinking that 12 (1) a applied to my grandfather, and 12(2) to my mother…

jmin

Do you have your grandfather's old British passport? If you do, what does it say in it?

12(1) seems not to apply to your grandfather. He was born in India (or modern day Pakistan) and India and Pakistan are listed in subsection 3, so it was not the United Kingdom and Colonies for the purposes of the Act. He also did not (2) naturalize or (3) become a British subject by annexation of any territory in the UK and colonies at the beginning of the act. It appears he would have become a 13(1) British Subject without citizenship (BSWC) because of 32(7)(a).

Your mother would have become a 13(1) BSWC by 32(7)(a) because her father was born in India.

BSWC also affected people living in the UK. It is why there were registration provisions (see BNA 1948 6(1)(a) which also applied to potential citizens). Registration eligiblity was increased to 5 years of residence in 1962. It was again modified in 1971 (1962 and especially Immigration Act 1971 schedule 1 changed more than just the residency period). From what you have said your mother apparently did not register while you were residing in the UK.

I looked in Fransmans and do not see a way around the BSWC by BNA 1948 for your mother (I did not look at later registration but these seem to have had end dates and from what you said your mother did not register but perhaps there's some discriminatory issue there). So to sum up, your caseworker likely believes that your mother became a BSWC, not a CUKC, by BNA 1948.

Perhaps there is some way around this, I am missing something, or there is another angle to look at. I only focused on the CUKC issue but you were resident for 5 years and your grandfather moved some. Maybe Sable would have a solution, I think they still have a free assessment where they give you a probability of success.

pallykin

Hi jmin,

Thank you for looking into this for me. It has taken numerous rereads of this and some time to digest it. I agree with your assessment. What I missed was that being born in the British Dominions was not what mattered, but that where you were born was still in the British Dominions in 1949. And of course British India underwent partition on 1947.

It does feel like a bit of legislative unfairness is lurking in there somewhere. It can't have been the intention of the lawmakers to strip the citizenship from and leave stateless the son/grandson/great grandson of British military officers who gave over 80 years of service to the British Army. I would be interested to learn if there have been any similar cases argued successfully that might be in Fransman's next edition, which I understand is coming out in April of next year.

I do not have any documentation or passport for my grandfather. He died in 1971 when I was 7, and my family lived in the Netherlands at that time, so my mother was not in a position to save things like that. I'm going to make a subject access request to HMPO using this email address: [email protected] to see if there are any passport records for him. Other than that, all I can do is wait and see if the laws change in my favour.

pallykin

jmin I just found this explanation, and it's the clearest I've seen:
https://nationalityandcitizenshiplaw...statelessness/

jmin

It does seem unfair since they attended Sandhurst. I suppose that is negated somewhat by your mother being born after her father had left military service. Let us know what you learn from DPA.Queries.

I did look at the various registration schemes for British subjects without citizenship and they appear to be gender neutral. It is unfortunate that your mother did not register whilst you were living in the UK. But while something is technically available, it does not mean that people know the details, particularly if your mother did not know that she was a british subject without citizenship.

There is quite a bit in the British nationality acts that seem unfair and not just from a discrimination standpoint. People with closer connections to the UK are not citizens/have no possibility of registering, while some with more distant connections do. This is a byproduct of the end of the empire more than anything but it did strand people with close connections in places that became increasingly inhospitable. It is also interesting how not all the independence acts had the same citizenship provisions or how some places are treated differently than others based on the type of British rule in the place in question.

pallykin

jmin I started researching this again after the announcement that the income requirement for spouse visa was more than doubling. That’s plan B.

I came across this HMPO caseworker guidance which contradicts the idea that British subjects born in British India did not automatically become CUKC in 1949 if they did not become a citizen of India. It states what I believed and is why I submitted a Form UKM application…

https://www.gov.uk/government/public...ble#bookmark17

Who will be a British subject from British India

A customer will be a British subject, if they:

• were born before 1 January 1949:
  
  • in British India
    
  • in a ‘Native’ or ‘Princely’ state and their father was a British subject
    
  • and did not become a citizen of India
    

It would mean that my grandfather should have ultimately been considered a CUKC, and I would argue that my mother would have been too. She believed she was a British citizen, eligible to work in the UK. Unfortunately she died in 2004, so no opportunity to ask her for more details.

Does this HMPO document seem to contradict what is stated or is vague in the original legislation? Is there cause for hope?

somebody

jmin, thank you for all the help and advice you provide to the forum.

pallykin: I just joined this board, and am in a similar situation with the family tree.
Here is the solution I am thinking, applied to your case:

1) Great grandfather lived in London and went to Sandhurst
He therefore spent more than 5 years in the UK as a minor / under age 21
This is the definition of "naturalization" according to the Naturalization Act of 1870, which would have been in force at the time
However, he was not allowed to "naturalize" -- this is either a Romein provision (?) or Section 4L historical unfairness (?) (maybe jmin can tell us)
Therefore, he should have the right of abode ("by birth, naturalization, registration, etc." in the 1971 Act)

2) He would have passed that right of abode to your grandfather (status 2.B1 in the 1971 Act)
"british subject whose british subject parent had the right of abode at the time of birth"
("CUKC" is replaced with "british subject" when considering periods before 1948)

3) Then by this logic (copy-pasting since I can't link externally as a new user), because he held the right of abode (as defined in 1971) in 1948, the grandfather is a CUKC

• Candidate born before 1949 in a country that was a post-1949 Protectorate, Protected State, Mandated Territory or Foreign Country;
• Their father was born in a Foreign Country, Protectorate, Protected State or Mandated Territory;
• Their mother born in a major Commonwealth country that did not have citizenship law in effect on 01.01.1949 (South Africa, India, Pakistan and Southern Rhodesia); AND
• A Maternal Grandfather (i.e. mother's father) born in the UK (or a post-1949 Colony where the maternal grandmother was born in the UK, or the subject otherwise holds the Right of Abode).

In this case, the subject does not become a potential citizen of the Commonwealth country. The mother is a pre-1949 British Subject and becomes a CUKC under Section 12(2) on 01.01.149. The subject is a pre-1949 British Subject who does not become a Citizen of a Section 1(3) Country and is not a potential citizen of any Commonwealth Country.

Does this make sense?

jmin

The caseworker guidance you reference does not mean that your mother or grandfather were CUKCs. It is actually about people in your mother's situation who were BSWOCs - not CUKCs - and did not make use of any of the intervening registration provisions. Specifically, the guidance is about BNA 1948 BSWOCs who became BNA 1981 British subjects. There are around 30,000 BNA 1981 British subjects in the modern era, most of whom also have ROA (but 800 or so who do not). British subject status is not transmissible.

Your mother would have been a BNA 1981 British subject because she was:
Born before 1 January 1949
Was a British subject on 31 December 1948
On January 1949 she did not become a CUKC because India never enacted a citizenship law under the meaning in BNA 1948.

Here is the more detailed caseworker guidance:
https://assets.publishing.service.go...h_subjects.pdf

Have you had any luck requesting passport records for your mother or grandfather since DPA Queries should have replied by now? Your mother could always have had one and not known or remembered. Your grandfather's might have some helpful information, you never know. You could also check whether your mother registered while in the UK although that seems unlikely. You could also double check whether or not your mother or grandfather were born in a princely state. Based on what you said they were not but worth looking into because if the princely state was still independent then there are some other avenues to explore.

If you intend on moving to the UK and need visas, perhaps apply now before the new requirements take effect?

jmin

Why was you great grandfather not allowed to apply for naturalization? Can you prove this? Naturalization under the 1870 was not automatic. The person would have to apply, show they resided in the UK for at least 5 years, and then satisfy the Secretary that they intended to remain in the UK or serve under the Crown.

Where and when were the people in question born? Otherwise it is difficult to offer an opinion about anything else, also there might be some other route.

somebody

Hi jmin! I was applying the logic to pallykin's case. Per his original post, his great-grandfather and grandfather were born in India, as British subjects.

Naturalization between 1870 and at least 1914 was not allowed for British subjects -- even if they resided in the UK for at least 5 years.
Registration was not even a concept before 1914 -- even if they resided in the UK for at least 5 years.

I don't know if these fall under the Romein provisions or the 4L section on "historical legislative unfairness."

Again, this is just to help pallykin out. But my own situation is similar. The person in question lived in the UK from ~1905 to ~1925, as both a minor and adult.
As British subjects, they would have been unable to register or naturalize.

jmin

It does not fall under Romein or 4L. The argument about naturalization would also fail because British subjects did not need to naturalize because they were already British subjects.

The issue is that after India's independence India chose not to enact a citizenship law that would be treated as such under BNA 1948. Specifically, India and Pakistan chose not to give citizenship to everyone born in India but BNA 1948 required it for the purposes of potential citizens/BSWOCs becoming CUKCs (in an acceptable citizenship law there would have been exceptions to loss for people born in India but with a close connection to UK who then became CUKCs). The reason why the UK/BNA 1948 did not allow this is it would have greenlighted stripping citizenship from a segment of the population born in the now independent country and making it the UK's problem.

The result of this was that British Subjects Without Citizenship (BSWOCs) remained BSWOCs unless they registered under one of several different provisions (and which pallykin's mother could have done while living in the UK but unfortunately did not). The registration provisions were gender neutral as applied to pallykin's case so no historical legislative unfairness there. BNA 1948 BSWOCs with similar backgrounds to Pallykin's mother who did not register became BNA 1981 British Subjects.

somebody

jmin, I admire and respect all the help you provide on this forum. However, I disagree with your logic. You are saying that no British subject had the Right of Abode prior to 1948 unless they were born the UK, since they would have been unable to register or naturalize. Even a British subject child who was born elsewhere in the British empire and lived in London from 1 day old until they were 21. This would violate several of the UK's international obligations, and a qualified immigration attorney should be able to make these arguments.

pallykin, I would suggest you put together a paper with all your evidence and past communication with the Home Office and speak to a UK immigration attorney on this matter. They can work by the hour, and it seems like this is important to you (I saw your posts on Reddit as well). Please send me a private message if you need recommendations for a few that we have spoken to. (Also, you may not need to send your original passport to the Home Office -- notarized copies appear to be acceptable.)

BritInParis

No-one had Right of Abode before 1973 as the concept was only introduced with the Immigration Act 1971.

pallykin

jmin BritInParis somebody My father-in-law was born in Bombay in 1925 to a British subject father who was serving in the British Army, and his family moved back to Scotland where his parents were from when he was 3. He served in the RAF in WW2, went to St. Andrew’s University, and in 1958 emigrated to Canada and in 1966 to the United States. He definitely had a UK passport as did his older sister born in Bombay in 1923. He eventually naturalized as a US citizen to facilitate working on projects designing jet engines for the US military. Was it the timing of their births that made the difference, or did they register at some point as part of getting their first UK passports?

No record of a passport for my grandfather exists. They told me that the records go back to 1898. No records exist of a passport for my great grandfather, and the 1891 passport record I have for him is too old to be included in Home Office passport records. However passports weren’t required for international travel except at time of war, by the US at least, until 1941.

somebody

pallykin, I believe our situations are sufficiently similar. I will let you know via private message if we make any headway. Please give us a few weeks on this. Per the Home Office, "only the courts can determine conclusively whether that person is actually a British national." Again, the advice you seek comes from an immigration attorney.