ColinY

My first adult UK passport was rejected on application to HMPO Liverpool office. After many complaints, I still received a reply letter from [email protected]. In the letter, [email protected] still rejected my application for a British passport, but [email protected] confirmed in the letter that my grandfather was naturalized British subject in Burma., but thought my father was born in Burma, so losing British subject status when Burma gained independence in 4 Jan 1948 automatically became a Burmese citizen.

But this is wrong, both the 1947 Burma Independence Document and the Burma section of the HMPO guidance can attest that my father remained a British subject after Burma's independence.

I have submitted this HMPO guidance multiple times and it has been ignored by the Liverpool office and [email protected]. I followed the link in the letter to submit a third stage complaint, and [email protected] forwarded my complaint to [email protected] for processing, and [email protected] responded the same reply, entering a strange loop.

So what should I do?


here is the original of [email protected]

I apologise for the delay in responding to you.

I understand your parents naturalised in British Burma and believe the documents sent in support of your passport application to be proof of British nationality.

You asked for re-consideration of the decision to fail the request on the grounds of no claim.

As requested, I reviewed your passport application. As your father was born in Burma, he automatically became a citizen of that country when it became independent on 4 January 1948. This includes people who were naturalised in a country outside the UK.

To be considered as a British citizen, any naturalisation certificate must be produced by the Home Office in London.

Therefore, the documents supplied could not be considered for the purpose of establishing British nationality. Your passport application was subsequently withdrawn, and the fee retained in line with our policies and procedures.

The Home Office has a dedicated Complex Nationality helpline which can be contacted on +44 (0) 300 123 2253 if further information is required.

I appreciate your predicament. However, British nationality is a matter of law and not something HM Passport Office has any control over. I am unable to assist any further.

The Parliamentary and Health Service Ombudsman (PHSO) advises: in fairness to other complainants unless you have a new point, we will now regard this correspondence as closed.

Should you remain dissatisfied with our response, the next stages of our complaint process can be found at the following link:

(PS: the parents here should be grandparents,[email protected] made a very unprofessional mistake)

christmasoompa

Sorry to hear this. Did you provide a copy of your grandfather's naturalisation certificate and father's birth certificate as previously advised by BiP? May I be a British citizen by descent?

jmin

What is the text of the original rejection letter? What was your argument in support of your application?

Were you able to find the Imperial Certificate of Naturalisation or not?

If your grandfather had an Imperial Certificate of Naturalisation then he would have been exempted from loss of British subject status as would your father, but it's unclear how that would help you.

Under what provision did you argue that you are a citizen? As pointed out elsewhere, you would not have ROA but even then I do not see a BOC solution.

jmin

Colin, I hope to hear back from you, we want to help you. I might have found a way to argue that you are a British Overseas Citizen based on an alternative way of proving that your father and grandfather were exempted from the general loss provision without the need for the Imperial Certificate of Naturalisation. My argument is designed to help you, but there could be flaws.

Reading the text of the response to your request for re-consideration, the officer believes that:
1. Before independence, your father and grandfather had British subject status (the British nationality reference in the response).
2. After independence, your father and grandfather lost their British subject status.

For this finding to change, you have to provide evidence that your father met one of the exceptions to the general loss rule in the Burmese Independence Act of 1947. Did you find the Imperial Certificate of Naturalisation or not? It's unclear from the response. Did you provide some other naturalisation certificate or only these documents?:

• Joint British Burma/UNRRA travel documents from 1947
• Republic of China registration certificates post-1948
• Documents between the Republic of China/UNRRA/British government/British Burmese government regarding the return of Chinese British subjects (what documents are these, I want to read them).

They will not take the first two documents as proof that your grandfather and father were excepted from the general loss provision. The instructions they follow state that you need the Imperial certificate. The Republic of China certificate is issued by a foreign government. Perhaps there is something interesting in the documents between RoC, UNRRA, British Government, and British Burmese government.

My proposed solution using the Burmese Independence Act of 1947 2(1), BNA 1948 12(4), BNA 1948 5(1), and BNA 1981 26

If you don't have proof that your grandfather naturalised in the form of the Imperial certificate, there is potentially another way to claim that your father and grandfather were excepted from the general loss provision.
Schedule 2(1) of the Burmese Independence Act of 1947 states:
2(1) "A person shall be deemed to be excepted from the operation of sub-paragraph (a) of paragraph 1 of this Schedule if he or his father or his paternal grandfather was born outside Burma in a place which, at the time of the birth":
2(1)(b) "was a place where, by treaty, capitulation, grant, usage, sufferance or other lawful means, His Majesty had jurisdiction over British subjects"
"Provided that a person shall not be excepted under this sub-paragraph from the operation of the said sub-paragraph (a) by virtue of the place of birth of his father or paternal grandfather unless his father or, as the case may be, his paternal grandfather, was at some time before the appointed day a British subject.

The above clause 2(1)(b) does not require that your grandfather was a British Subject at the time of his birth, only that he "was at some time before the appointed day a British subject". By the Home Office's admission in the re-consideration letter based on the evidence that you provided, they accept that your grandfather and father were British Subjects prior to Burmese Independence. The appointed day is the day the Burmese Independence Act came into effect. It is clear that this is the meaning (and that the appointed day is not the day of birth) from the opening paragraph of the Act "On the appointed day, Burma shall become an independent country..."

Your grandfather was born in Fujian, China in 1900. The UK had extra-territorial jurisdiction over British Subjects in China long before this date (by treaty in 1842 and custom before, read this Wikipedia entry). Fujian also had two treaty ports but I would not mention that initially (technically ETJ applied only in the treaty ports but primarily because foreigners were not allowed into the interior, mentioning this would complicate things). Your grandfather meets all of the conditions of 2(1)(b) and would have been excepted from loss since he became a British subject at some point before Burmese Independence.

Therefore, you have an alternative way to show that your father and grandfather were excepted from the general loss provision. You would have to make it very clear that it is immaterial that your grandfather was not a British Subject at the time of his birth. Include the Burmese Independence Act of 1947 and reference the relevant section.

Now that you can present an alternative argument that your father was excepted from the general loss provision, you have to show if and how he retained it under BNA 1948. The answer is that he became a CUKC under BNA 1948 12(4) "A person who was a British subject immediately before the date of the commencement of this Act and does not become a citizen of the United Kingdom and Colonies by virtue of any of the foregoing provisions of this section shall on that date become such a citizen unless—

(a)he is then a citizen of any country mentioned in subsection (3) of section one of this Act under a citizenship law having effect in that country, or a citizen of Eire ; or

(b)he is then potentially a citizen of any country mentioned in subsection (3) of section one of this Act.

The countries mentioned in 1(3) are Canada, Australia, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia, and Ceylon. From what you have provided us, he was not a citizen or a potential citizen of any of those countries. Therefore, he was a CUKC under 12(4). You would need to mention this.

Now that you can show he was a CUKC, you have to show what status you would have acquired when you were born in 1977. This is where I am not entirely certain the argument will hold up. I believe you would have been a CUKC by descent under BNA 1948 5(1) since your father had his CUKC for reasons other than descent only (he held his CUKC status from BNA 1948 12(4), not from descent). Unfortunately, neither you nor your father had a Right of Abode (ROA) in the UK under the Immigration Act of 1971. Under BNA 1981, you would have been reclassified as British Overseas Citizens (BOC). Refer to Schedule 26:
"Citizens of U.K. and Colonies who are to become British Overseas citizens at commencement
Any person who was a citizen of the United Kingdom and Colonies immediately before commencement and who does not at commencement become either a British citizen or a British Dependent Territories citizen shall at commencement become a British Overseas citizen."

Therefore, you should be applying for a British Overseas Citizen passport. While it does not give you the right to live and work in the UK, it has certain benefits and it's possible that you could use it to 'upgrade' the BOC to British citizenship. After you obtain a British Overseas Citizen passport it might (small chance) be possible to argue that you are not actually a Chinese citizen due to the country's nationality laws. The argument would be that because mainland China does not recognize dual nationality and because your father was a CUKC at the time of your birth, you were not actually a Chinese citizen at birth. You were CUKC. Don't try to make that argument first, though, since it is a leap and would likely lead to a denied application. This would be complicated to prove because prior to the late 1970s/early 1980s, China did not have a codified nationality law and relied informally on suspended RoC nationality laws. It would be a smaller leap if you already have an approved BOC passport application.

Here is the Home Office's guidance on BOC: https://assets.publishing.service.go...BLICATION_.pdf

Steps to take, unless BritInParis notices a flaw or has other guidance:
Respond to the Home Office explaining the following and using the arguments developed above with specific references to the acts and the relevant text (state that you are not providing new evidence but that the Home Office made an error when evaluating your application):

• How your father and grandfather were excepted from loss (grandfather born in China, ETJ was in force in China at the time of his birth, he acquired British Subject status later, and the Independence Act only required that your grandfather obtain said status prior to the date the Independence Act went into effect).
• How your father became a CUKC under BNA 1948 12(4)
• How you became a CUKC under BNA 1948 5(1)
• How you and your father became BOC under BNA 1981 Schedule 26.

The Home Office makes mistakes, especially if you do not state precisely why you are entitled to the status that you are claiming using the relevant British Nationality Acts or if you are applying for the wrong thing.

Does this help you? Also, please be kind enough to let us know the outcome of your case as I spent some time on this for you. If it's successful (or if it's not), it's helpful to report back so that others can also use your experience. Cases like this also can be used to open up routes that were not previously understood. If it's not successful, we can help you further.

ColinY

Unfortunately, I have never been able to find my grandparents' naturalization certificate and my father's birth certificate. During the search, I found that a large number of paper documents were damaged and lost during World War II, including the naturalization certificate. There is a famous overseas Chinese leader Tan Kah Kee, whose British naturalization certificate was lost when he was working in Indonesia and could not be reissued, because Japan invaded Indonesia in 1942, although he reissued a British passport.

ColinY

Were you able to find the Imperial Certificate of Naturalisation or not?
No,I can's find my grandparents' Imperial Certificate of Naturalisation.

If your grandfather had an Imperial Certificate of Naturalisation then he would have been exempted from loss of British subject status as would your father, but it's unclear how that would help you.

With a certificate of imperial naturalization, I have direct evidence that my father would not lose his British subject status and had an ROA. I can get full British Citizen by descent from my father.

Under what provision did you argue that you are a citizen? As pointed out elsewhere, you would not have ROA but even then I do not see a BOC solution.

Regarding the right of abode in UK, it is obtained according to BNA1981 S.50.
The citation is as follows:British Nationality Act 1981 S.50

"the former nationality Acts" means--

(a) the British Nationality Acts 1948 to 1965;

(b) the British Nationality and Status of Aliens Acts 1914 to 1943; and

(c) any Act repealed by the said Acts of 1914 to 1943 or by the Naturalization Act 1870;

"the United Kingdom" means Great Britain, Northern Ireland and the Islands, taken together;

(6) For the purposes of this Act--

(a) a person shall be taken to have been naturalised in the United Kingdom if, but only if, he is--

(i) a person to whom a certificate of naturalisation was granted under any of the former nationality Acts by the Secretary of State or, in any of the Islands, by the Lieutenant-Governor; or

(ii) a person who by virtue of section 27(2) of the British Nationality and Status of Aliens Act 1914 was deemed to be a person to whom a certificate of naturalisation was granted, if the certificate of naturalisation in which his name was included was granted by the Secretary of State; or

(iii) a person who by virtue of section 10(5) of the Naturalization Act 1870 was deemed to be a naturalised British subject by reason of his residence with his father or mother;

According to BNA1981 S.50, my grandfather was a Chinese British subject naturalized in the Burmese province of British India by BNSAA1914,so my grandfather was be taken to have been naturalised in the United Kingdom.
So,my father has ROA by Immigration Act1971 S.(2)(b)(i), I have ROA by Immigration Act1971 S.(2)(b)(ii).

Aother HMPO document can prove ROA of BSUKC.(Independence Legislation v1.4.PDF P11)

Uner the Freedom of information Act 2000,HM Passport Office has published on the policy documents provided to Examiner Quality Consultants on whatdotheryknow website, including Burma.(Guidance provided to EQCs) Burma QRG v2.1.PDF Burma v2.2.PDF Burma Workbook Answers v 2.1.PDF(Exercise 2 P5) These three documents describe the situation in Burma in great detail. There is even a case that shows that there is an APP'S father who was born in China and retains the status of a British subject, which is basically the same as my father's situation.

Thank you for such a detailed reply, I will use it to reply to the email from the HMPO liverpool office.

ColinY

Below is the content of the rejection letter from HMPO

We issue British passports mainly to British citizens, British Overseas Territories citizens and British Overseas citizens, as defined by the British Nationality Act 1981, (which came into force on 1st January 1983). As a result, citizenship is a matter of law, and is decided mainly by a person's-place and date of birth and their parent's places and dates of birth. However, from the information available you do not appear to be entitled to a British Passport at this time.

Subject to the exceptions listed below, the following lost British subject status under the provisions of the First Schedule of the Burma Independence Act 1947:
a)Persons who were born, or whose fathers or paternal grandfathers were born, in Burma or on a ship registered in Burma.
b) Women who were aliens at birth and had become British subjects by reason only of marriage to persons in the category (a) above (under Section 10 BNSAA 1914).
The principal exceptions to loss of British subject status under Section 2 of the First Schedule of the Burma Independence Act 1947 were:
a) Persons who were bom in the Crown's dominions outside Burma, in a protectorate, protected state, mandated territory or trust territory or in any place where the Crown was exercising jurisdiction over British subjects.
b) Persons whose father or paternal grandfather had at some time been a British subject and was born in a place which, at the time of the birth, was in the Crown's dominions outside Burma, in a protectorate, protected state, mandated territory or trust territory or in any place where the Crown was exercising jurisdiction over British subjects.
c) Persons who had been granted or whose father or paternal grandfather had been granted an 'Imverial' certificate of naturalisation and persons whose father or paternal grandfather had been granted a 'local' certificate of naturalization in Burma or elsewhere.

From the information available your father was born in Burma 1933 and on the date of Burmese independence, 4 January 1948, lost his British Subject status and became a citizen of Burma.
Furthermore, from the information you have provided, your father does not appear fall into any of the categories for exception to loss of British Subject status.
Therefore, your father appears to have been a British Subject by birth but lost this status when Burma went independent on 4th January 1948.
For further Information on British nationality, you should write to the Home Office Nationality Enquiry Team, UK Visas & Immigration, PO Box 306, Liverpool, L2 DON (phone - 0300 123 2253, www.gov.uk).
However, before doing so, you may want to consult the Chinese authorities to see whether gaining British citizenship would have any effect on your citizenship of that country.
If you gain British citizenship you wilt then be eligible to apply for a British citizen passport.
However, you will need to provide the citizenship certificate. In the meantime, I have returned your documents. The fee, which is not refundable, has been retained to cover the cost of processing the application.

Since I suspected that my grandmother's British Burma travel document was special, not a normal British passport, and not recognized by HMPO, I emailed [email protected] to inquire, and then wrote back to confirm my idea.

Thank you for your further correspondence in regards to your failed British passport application.

You have requested clarification of your grandmother’s documents, of which you have provided scanned copies, regarding their validity as British nationality documents.

The documents you have provided copies of are not proof of British nationality. As a result, I am unable to confirm your grandmother’s claim to British Citizenship.

Additionally, when reviewing your application, it was confirmed at the time that you could not obtain British Citizenship via your father as he did not retain his British Subject status.

As advised previously by my colleagues, this matter has been reviewed in full and cannot be considered further. From the information provided to HM Passport Office, the
application was considered and failed correctly in line with HM Passport Office policy.

If you can provide further information confirming you have a claim to British Citizenship, I would advise you to submit a new passport application and provide all relevant
documentation. However, you will have to pay the application fee, and this is not refundable.

The Parliamentary and Health Service Ombudsman (PHSO) advises: in fairness to other complainants unless you have a new point, we will now regard this correspondence as closed.

Should you remain dissatisfied with our response, the next stages of our complaint process can be found at the following link

Although I did not find the imperial naturalization certificate of my grandparents, I found the supporting documents on the side. The government of the Republic of China (Taiwan) compiled a book on the repatriation of overseas Chinese back to the British colonies in Southeast Asia after World War II, including the UNRRA and British Foreign Office. The diplomatic documents include UNRRA and the Ministry of Foreign Affairs of the ROC and British Foreign Office and British Burma government. I have compiled the relevant English content in it and sent it to [email protected] to prove the legality of my grandmother's British Myanmar travel document. The result was [email protected] Reply.

I apologise for the delay in responding to you.

I understand your parents naturalised in British Burma and believe the documents sent in support of your passport application to be proof of British nationality.

You asked for re-consideration of the decision to fail the request on the grounds of no claim.

As requested, I reviewed your passport application. As your father was born in Burma, he automatically became a citizen of that country when it became independent on 4 January 1948. This includes people who were naturalised in a country outside the UK.

To be considered as a British citizen, any naturalisation certificate must be produced by the Home Office in London.

Therefore, the documents supplied could not be considered for the purpose of establishing British nationality. Your passport application was subsequently withdrawn, and the fee retained in line with our policies and procedures.

The Home Office has a dedicated Complex Nationality helpline which can be contacted on +44 (0) 300 123 2253 if further information is required.

I appreciate your predicament. However, British nationality is a matter of law and not something HM Passport Office has any control over. I am unable to assist any further.

The Parliamentary and Health Service Ombudsman (PHSO) advises: in fairness to other complainants unless you have a new point, we will now regard this correspondence as closed.

(PS: the parents here should be grandparents)

ColinY

P338British Ministry's memorandum No. Ou 368223 30061947.pdfP294BRITISH TRAVEL DOCUMENT1947.pdf

Here are some of the documents,this is a 1947 British Foreign Office document.

His Briannic Majesty's Embassy present their compliments to the Ministry Foreign Affairs and have the honour, with reference to the Ministry's memorandum No. Ou 36/8223 of the 22nd April regarding the return of oversease Chinese to Burma. to state that the Governor of Burma, to whom the matter was referred,has replied that the representative of the Government of Burma who was sent to Amoy to assist in this matter, has also been advised to visit other ports in China for the same purpose, on the condition that his functions elsewhere should be the same as those agreed with the Chinese authorities regrding the examination of the overseas Chinese waiting at Amoy. As he would not be in a position elsewhere than at Amoy to select the particular ships by which overseas Chinese should return to Burma, however, he was instructed not to endorse travel documents at other ports.

His Britannic Majesty's Embassy would be grateful if the Ministry would be good enough to explain the situation to the authorities concerned.

jmin

This finding is in error. Your father and grandfather did not lose British Subject status due to 2(1)(b), thanks to your grandfather's birth in a place with ETJ as I detailed extensively further upthread. You might not have advanced the ETJ argument because you were focused on the Imperial certificate which is irrelevant because 1.) you do not have it and 2.) if you had it, you still would not have ROA.

This is also in error. He was not automatically a citizen of Burma because he had an exception to general loss due to your grandfather's birthplace which you didn't make clear because you were focusing on the Imperial certificate angle. It's important to understand what they're telling you though - it doesn't matter whether you have the Imperial Certificate or not. Even if you had the certificate, your father would have obtained his CUKC under BNA 1948 12(1) (instead of 12(4)) and you would still not be a British Citizen (You are BOC in either case).

Because they referenced this portion of the act and were incorrect, you could possibly convince them to re-examine due to their error in applying the exception to loss provision. (Instead of having to apply again)

When you were born, you did not have ROA due to the Immigration Act of 1971. This is true whether or not you had the Imperial Certificate because to have RoA, your CUKC status had to have been acquired "in the United Kingdom or in any of the islands". When I googled Burma independence, I saw your post elsewhere (it's cached by google so even though the post is deleted, I can see it). It was pointed out to you why neither you nor your father had ROA by some poster there from a decision you referenced:
"In order for the respondent to have acquired the right of abode under that section, therefore, it would be necessary for his mother at the date of his birth to have acquired the status of a citizen of the United Kingdom and Colonies in the United Kingdom by birth, adoption, naturalisation or registration (none of which was the case) or to have been born to or legally adopted by a parent who at the time of her birth or adoption "so had it."

Note that it was the Lord Justices that placed "United Kingdom" in italics. No one in your family acquired CUKC status in the United Kingdom so you did not have ROA under the Immigration Act of 1971. This is true whether the CUKC was from your grandfather's imperial certificate of naturalisation or his exception to loss due to China's ETJ. In the Lord's decision, mother is interchangeable with father. United Kingdom means Great Britain, Northern Ireland and the Islands, taken together; and "the Islands" means the Channel Islands and the Isle of Man;

When BNA 1981 came into force, you did not become a British Citizen. Look at BNA 1981 S.11. It requires that you "had the right of abode in the United Kingdom under the [1971 c.77] Immigration Act 1971 as then in force". Even if you had the Imperial certificate, you cannot argue that you had ROA because of the decision previously referenced.

No, this does not prove ROA. This is in the context of places that became independent after the Immigration Act of 1971 came into force (Burma was independent long before this act and the act has no provisions granting ROA to CUKCs from Burma). The act gave CUKCs in those Caribbean places ROA before they became independent. People who were excepted from general loss provisions in those countries could retain CUKC and ROA under certain conditions. (most lost CUKC and ROA).

BNA1981 S.50 does not govern who has the right of abode in the UK. For the purposes of BNA 1981 and your case, the Immigration Act of 1971 governs whether or not you have ROA. You do not have ROA for the reasons previously stated. S.50 is merely an interpretation section. I will point out that there is something in this section that negates your argument, though. "the United Kingdom" means Great Britain, Northern Ireland and the Islands, taken together; "the Islands" means the Channel Islands and the Isle of Man; This is why the Lord Justices rules they way they did and why you are a BOC instead of a British Citizen.

I suggest that when you reply to HMPO that you stick to the argument I gave you in my prior reply above namely,

• How your father and grandfather were excepted from loss (grandfather born in China, ETJ was in force in China at the time of his birth, he acquired British Subject status later, and the Independence Act only required that your grandfather obtain said status prior to the date the Independence Act went into effect).
• How your father became a CUKC under BNA 1948 12(4)
• How you became a CUKC under BNA 1948 5(1)
• How you and your father became BOC under BNA 1981 Schedule 26.

This solution relies on China being an ETJ and your grandfather being a British Subject at some point, which the one passport examiner stated that they accepted. You need to provide detailed information on why China was an ETJ for this to succeed (don't use Wikipedia, use the Home Office's own instructions as follows). To make a convincing argument refer the passport examiner to this Home Office Document (pages 5 to 6):
https://assets.publishing.service.go...ty-v1.0EXT.pdf
Note that this document refers the passport examiner to Fransman's British Nationality Law when finding information about extra-territorial jurisdiction of places such as China.
China is listed as being a "Foreign territory in which the Crown exercised extra-territorial jurisdiction over British Subjects" on page 802 of Fransman's British Nationality Law (A.6).
Also, on page 902 (B.49) in the more detailed section for China we find that "From 26 June 1858 to 19 May 1943, inclusive, the Crown exercised extra-territorial jurisdiction over British Subjects".
Therefore, there was ETJ in China when your grandfather was born and because the exception to loss only required that he have British Subject status at some point prior to Burma Independence, your grandfather and father were excepted from the general loss provision.


If you argue that you are a British Citizen using the arguments you have presented (BNA 1981 S.50, etc), your application will be rejected again. Use the arguments I developed showing that you are a British Overseas Citizen.
Also, don't argue that you are not a Chinese citizen, if you are able to obtain the BOC I will spend some time to try to develop an argument to that effect to "upgrade" the BOC.

ColinY

A. Like you said, I'm obsessed with the Imperial Certificate of Naturalization because the Imperial Certificate of Naturalization was issued by the British Secretary of State from London according to BNSAA1914, is that an advantage.Does that help?

British Nonality and Status of Aliens Act 1914

Part II
Naturalization of Aliens
2Certificate of naturalization
(1)The Secretary of State may grant a certificate of naturalization to an alien who makes an application for the purpose, and satisfies the Secretary of State—
(a)that he has either resided in His Majesty's dominions for a period of not less than five years in the manner required by this section, or been in the service of the Crown for not less than five years within the last eight years before the application; and
(b)that he is of good character and has an adequate knowledge of the English language; and
(c)that he intends if his application is granted either to reside in His Majesty's dominions or to enter or continue in the service of the Crown.
(2)The residence required by this section is residence in the United Kingdom for not less than one year immediately preceding the application, and previous residence, either in the United Kingdom or in some other part of His Majesty's dominions, for a period of four years within the last eight years before the application.
(3)The grant of a certificate of naturalization to any such alien shall be in the absolute discretion of the Secretary of State, and he may, with or without assigning any reason, give or withhold the certificate as he thinks most conducive to the public good, and no appeal shall lie from his decision.
(4)A certificate of naturalization shall not take effect until the applicant has taken the oath of allegiance.

Part III
General
National Status of Married Women and Infant Children
10National status of married women
(1)Subject to the provisions of this section, the wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deemed to be an alien.
(2)Where a woman has (whether before or after the commencement of this Act) married an alien, and was at the time of her marriage a British subject, she shall not, by reason only of her marriage, be deemed to have ceased to be a British subject unless, by reason of her marriage, she acquired the nationality of her husband.
(3)Where a man has, during the continuance of his marriage, ceased (whether before or after the commencement of this Act) to be a British subject, his wife shall not, by reason only of that fact, be deemed to have ceased to be a British subject unless, by reason of the acquisition by her husband of a new nationality, she also acquired that nationality.
(4)Where a man ceases, during the continuance of his marriage, to be a British subject and, by reason of his acquisition of a new nationality, his wife also acquires that nationality, she may, whether her marriage is still continuing or not, at any time within the period of twelve months from the date on which she so acquired that nationality, or at such later time as the Secretary of State may in special circumstances allow, make a declaration that she desires to retain British nationality, and thereupon she shall be deemed to have remained a British subject.
(5)Where, after the end of the year nineteen hundred and thirty-three, a certificate of naturalization is granted to an alien, his wife, if not already a British subject, shall not be deemed to be a British subject, unless, within the period of twelve months from-the date of the certificate, or within such longer period as the Secretary of State may in special circumstances allow, she makes a declaration that she desires to acquire British nationality.

British Nationality Act 1981 S.50

"the former nationality Acts" means--

(a) the British Nationality Acts 1948 to 1965;

(b) the British Nationality and Status of Aliens Acts 1914 to 1943; and

(c) any Act repealed by the said Acts of 1914 to 1943 or by the Naturalization Act 1870;

(6) For the purposes of this Act--

(a) a person shall be taken to have been naturalised in the United Kingdom if, but only if, he is--

(i) a person to whom a certificate of naturalisation was granted under any of the former nationality Acts by the Secretary of State or, in any of the Islands, by the Lieutenant-Governor;


B. Is a case like this good for my father's ROA?

https://tribunalsdecisions.service.g.../ia-06804-2013

(Immigration and Asylum Chamber) Appeal Number: IA/06804/2013


THE IMMIGRATION ACTS


Heard at Field House
Determination Promulgated
On 5 November 2013
On 25 November 2013

26. Although I was not addressed on the point and I do not make a finding about it, it seems likely that the appellant would have had a right of abode in the United Kingdom as a Citizen of the United Kingdom and Colonies (CUKC) under the British Nationality Act 1948. Although as colonies gained independence people from the newly independent countries would normally lose CUKC status and gain citizenship of the new commonwealth country the development did not affect the right to enter the UK as all commonwealth citizens, as well as CUKCs continued to be classed as British subjects. British subject status was an overarching status carrying with it the right of abode in the UK. As such a person with that right of abode was generally free from immigration control and had a right to enter, live and work in the UK.

C. Can I use the 1948 Burmese Nationality Act to prove that my father did not automatically become a Burmese citizen,?Because the overseas Chinese are not a native ethnic group recognized by the Burmese government.

http://www.ibiblio.org/obl/docs/UNIO...P_ACT-1948.htm
THE UNION CITIZENSHIP ACT, 1948

3. (1) For the purposes of section 11 of the Constitution the expression “any of the indigenous races of Burma” shall mean the Arakanese, Burmese, Chin, Kachin, Karen, Kayah, Mon or Shan race and such racial group as has settled in any of the territories included within the Union as their permanent home from a period anterior to 1823 A. D. (1185 B.E.).

7.(4) A Certificate of naturalization shall not take effect until the applicant has made a declaration, either on oath or affirmation, renouncing his status as a citizen of any foreign country and owing allegiance to the Union.

jmin

No, it does not help you because the certificate would only be useful in showing that your father (and grandfather) remained British Subjects because it excepted them from the general loss provisions. Your father retained British Subject status due to Schedule 2(1) of the Burmese Independence Act of 1947, he became CUKC by BNA 1948 12(4), you acquired CUKC at birth by BNA 1948 5(1), and became BOC by BNA 1981 Schedule 26.

Even if you had the certificate, which you do not, your father (and grandfather) did not acquire CUKC in the United Kingdom by birth, adoption, naturalisation or registration (none of which was the case) or to have been born to or legally adopted by a parent who at the time of her birth or adoption "so had it." So when you were born you were a CUKC without ROA per the Immigration Act of 1971. This means that with BNA 1981 you became a BOC by BNA 1981 S.26, not BNA 1981 S.11. "The United Kingdom" in the context of ROA from the Immigration Act of 1971 does not include Burma. Refer to the previously referenced decision by the Lord Justices. The Immigration Act of 1971 defined who had ROA at that point in time, not just people born after that date (you), it also applied to your father.

No, the appellant resided in the UK prior to the Immigration Act of 1971. He arrived in 1959 and although the judge did not make a finding on this issue, he believed that the appellant had ROA based on when he arrived in the UK. From what you have said, your father never resided in the UK.

Although this decision does not support ROA, are you resident in the UK?

The Burma Independence Act, 1947 governed the exceptions to the general loss provision. If someone lost British subject status or kept it, it was from this act, not the 1948 Burmese Nationality Act. It is true that your grandfather and father were not automatically Burmese citizens because of Section 11 of the Constitution of the Union of Burma. They would have been able to elect to become Burmese citizens, but were not automatically citizens, because neither your grandfather nor grandmother belonged to "any of the indigenous races of Burma (11(2))". If you use the Constitution in your arguments, use the original one, not the one with 1960 updates.

I think this is helpful in so far as pointing out that the Home Office erred by saying "As your father was born in Burma, he automatically became a citizen of that country when it became independent on 4 January 1948." (Particularly Constitution 11(2) because it is very clear to a reader, but the 1948 Burmese Nationality Act is useful to point out that they were not part of the 'indigenous races' listed) The Home Office statement in response to your request for a re-examination is clearly in error and suggests that a close reading of the relevant acts and the situation of your case was not followed. But this does not mean that your father kept his British Subject status as a result. If your father did not automatically become a citizen of Burma, he had the "right of election" to keep British Subject status under Section 2(3) of the Burma Independence Act, 1947. This right was not automatic and if your father made the election he would have a "Burma Declaration". The declaration had to have been "signed within two years of 4 January 1948". You have not mentioned that you have such a declaration. If you do not have your father's/grandfather's paper "Burma Declaration", you cannot use this argument.

For this reason, you need to show he retained British Subject status due to Schedule 2(1) of the Burmese Independence Act of 1947 (based on ETJ in China at the time of your grandfather's birth). Then he became a CUKC by BNA 1948 12(4).

Remember to specifically mention that you are a BOC as per my prior posts. Otherwise, the Home Office is likely to evaluate what you send them to determine whether you are a British Citizen, not whether you are a BOC.
Perhaps post your proposed response to the Home Office here before sending it with personal details redacted (or PM me).

ColinY

FIRST.
The situation you're describing does not fit my grandfather's and father's situation, who didn't need this declaration(A wide variety of British Subjects were excepted from loss ). According to the HMPO guidence,(Some of those not excepted from loss could nevertheless elect to retain British Subject status by making a declaration within two years of Burmese Independence. ) Just like(Only those Burmese British Subjects specified in the Act lost their British Subject status i.e. Generally those born, or with a father or paternal grandfather born in Burma, ceased to be British Subjects ) Burma 2.2.PDF(P22)
P20
? Contained within section 2(2) and 2(3) of the Burmese Independence Act 1947
?Stated that a person who lost British Subject status could elect to remain a British Subject by signing a declaration subject to certain conditions
?The declaration had to be signed within two years of 4 Jan 1948
?Any 1st time application accompanied by such a declaration must be referred to HQ Policy

SECOND. ROA
Burma 2.2.PDF P5 Burmese Independence
? Burma became an independent country on 4 Jan 1948
? The only country to gain independence from the UK before 1 Jan 1949 (one year earlier than other countries)
? Did not become part of the Commonwealth and was therefore not added to the list of 1(3) countries as part of the BNA’ 48

So my grandfather and father were never Commonwealth citizenship.

The Immigration Act 1971 (c 77) is an Act of the Parliament of the United Kingdom concerning immigration. The Act, as with the Commonwealth Immigrants Act 1962, and that of 1968, restricts Commonwealth citizenship immigration, especially primary immigration into the UK. The point is Commonwealth citizenship.

Also, I found something in HMPO guidence India section, don't know if it helps. India Activity Workbook Answers v2 2.PDF P4
Remember you use applicant and the nearest male who is BSBB or BSBN. If either has this through a connection with a 1(3) country the applicant will be potentially a citizen of that country
To be potentially a citizen of India that BS must be by birth or naturalisation or annexation in British India
Grandfather is potentially a citizen of India, Although he has his BS status through birth in a non 1(3) country the next BSBB, BSBN or BSBA you get to in the male line is the PGGGF who has his BSBB through British India.
The applicant is not BSBB etc and the first BSBB etc that you get back to in the male line is the Grandfather who has his BSBB through a non 1(3) country and applicant is not therefore potentially a citizen of a 1(3) country.
* The PGGF will not have ROA as he does not become a BSUKC.

I believe this is more about the current ROA, from the ROA owned by the British Subject to the ROA of the BNA1948 CUKC. After all, The PGGF was born in 1860 and was over 100 years old by 1971. Then cooperate with BNA1981 S.50.

I found another case about the British subject ROA section.
[2019] UKPC 41
The Minister of Home Affairs and another (Respondents) v Barbosa (Appellant) (Bermuda)
https://www.bailii.org/cgi-bin/forma...ND+(guthrie%22)
26. At common law, there was no concept of belonging to a particular territory within the dominions of the Crown for the purposes of considering whether a person had rights of entry or abode there. The relevant relationship was that of King (or Queen) and subject, which was a personal relationship based on allegiance owed by a person born within the dominions of the King of England to the King in his personal capacity. Calvin’s Case (1608) 7 Co Rep. 1a is the most important authority on this point (Sir William Holdsworth, A History of English Law, vol IX, pp 79-86; Clive Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland, 1957, Part One, Chapter 2; Fransman’s British Nationality Law, 3rd ed (2011), p 130). It was held that persons born in Scotland after the accession of James I and VI to the English throne in 1603 were to be regarded as natural born subjects of the English King rather than as aliens (a status which carried many disabilities under the common law). This was on the basis that the personal allegiance owed by such persons to the King was universal, and was not limited or defined by reference to the particular territory within the King’s dominions from which a person happened to come: see especially p 27b. This reasoning was followed as the British empire grew in the period that followed and more territories were added to the King’s dominions. As Parry notes, in the period after Calvin’s Case “The status of native-born Colonials as subjects in England was apparently not seriously disputed” (op cit, p 57). Natural born subjects generally enjoyed rights to move freely within the King’s dominions. By contrast, naturalisation was effected pursuant to statutes of local legislatures or the Westminster Parliament and its effect was confined to the particular territories legislated for in each case (Parry, op cit, pp 442-449).
30. The two-tier system was discussed further at the Imperial Conference of 1937: see Summary of Proceedings, June 1937 (Cmd 5482), pp 23-27. Attention was drawn to the fact that British subjects enjoyed this common status across the Commonwealth, but also, generally speaking, had a particular connection with one or other member of the Commonwealth; and that “in the absence of rules for determining the part of the Commonwealth with which any particular person has [such] connection …, practical difficulties arise, or might arise, with regard to such matters as immigration, deportation [etc]” (p 24). It was noted that it was the practice of the United Kingdom to make no distinction between different classes of British subjects as regards the right of entry and residence in the UK; however practical difficulties arose in relation to other parts of the Commonwealth:
34. Having the status of a British subject did not carry with it a right of entry or abode in any country listed in section 1(3), since those were matters in relation to which those independent countries had their own legislation. Similarly, that status did not carry any right of entry or abode in relation to any overseas dominion which had its own legislation in place governing such matters, as did Bermuda at this time. In R v Bhagwan [1972] AC 60 at 77G, Lord Diplock identified the common law rights of British subjects as being “to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm”; he did not suggest that such rights extended to overseas dominions. Lord Hoffmann followed Lord Diplock’s formulation in Bancoult (No 2) at para 44, as did Lord Mance in his judgment in Pomiechowski, at para 31. The position regarding rights of entry into the United Kingdom has been changed by later legislation.

ColinY

AL & Others (Malaysia BOCs) Malaysia
[2009] UKAIT 00026

https://tribunalsdecisions.service.gov.uk/utiac/37710

48. The reason for that is historical. Whatever may be the modern terminology, the right to enter and be in the United Kingdom derived, as we have explained, not from anything called citizenship or nationality but from being a British subject. The provisions of both the British Nationality Acts and the various immigration statues have the effect that certain people who would previously have been regarded as British subjects with that right, lost the right, generally in exchange for the right to live in some part of what had previously been colonial territory. That was the scheme. Although there were cases in which the right to be in the United Kingdom was lost without the acquisition of a corresponding right to be anywhere else, the history of the provisions, as we have set it out above, is clearly of the breakup and final abolition of the class of British subjects, and its replacement by recognition of specific attachment to different countries all over the world.

49. That view is supported by authority at the highest level: see DPP v Bhagwan above. Before 1962 and, equally, before the coming into force of the 1981 Act, any rights to enter and reside in the United Kingdom derived from the status of being a British subject. They did not derive from any conception of citizenship before the 1981 Act; and that Act, based as it is so clearly on the status and rights existing at the time it was passed, it cannot be thought of in the way that Mr Gill suggests. As we have explained, in the development of immigration control, being a CUKC was neither necessary nor sufficient to entitle one to reside in the United Kingdom. But everyone who had that right was a British subject.

According to the case of BOCs in Malaysia, the reason why my father would not be a BOC.Because he was a natural-born British subject under BNSAA1914 and has full British subject rights, including ROA.

Burma became an independent country on 4 Jan 1948. The only country to gain independence from the UK before 1 Jan 1949 (one year earlier than other countries) Did not become part of the Commonwealth and was therefore not added to the list of 1(3 ) countries as part of the BNA' 48. My father was never a Commonwealth citizen.

So my father British citizen rights are complete and continuous, BSUKC(BNSAA1914)->CUKC(BNA1948)->BC(BNA1981)
Of course, I can also inherit from him.

jmin

Your father's situation is addressed in Fransman's British Nationality Law, considered an authoritative text that is referenced in some Home Office guidance documents. It states that a person in Burma who escaped the general loss provision and then became a CUKC under BNA 1948 12(4) is a BOC in the modern era absent a factor such as being settled and ordinarily resident in the UK prior to 1983. He did not have ROA and became a BOC by BNA 1981 S.26.

According to Fransman, nearly all of those who escaped the general loss provision and retained British Subjects became 12(4) CUKCs.

I am sorry to say that after I examined your situation further using Fransman's British Nationality Law and reading to the end of BNA 1948 section 12, you would have no claim under BNA 1948 5(1) if your father was a 12(4) CUKC. This is because of 12(8) of BNA 1948.

"A male person who becomes a citizen of the United Kingdom and Colonies by virtue only of subsection (2), (4) or (6) of this section shall be deemed for the purposes of the proviso to subsection (1) of section five of this Act to be a citizen of the United Kingdom and Colonies by descent only."

There are only a few exceptions that would have allowed you to become a CUKC and then a BOC. Those are Imperial Certificates of Naturalisation (12(1) BNA 1948 CUKC or if your father was born in the Karenni States (child would then be a CUKC by 5(1)(a) BNA 1948).

With the documentation you have now, you can only show that your father was a CUKC (and BOC) and not yourself. Absent additional documentation, he was a CUKC by 12(4) and he could not have become a CUKC by subsection 1, 3, 5, or 7 based on the documents you have. Since 12(4) CUKCs were by descent only, you cannot be a CUKC through BNA 1948 5(1) if your father is a CUKC from 12(4) BNA 1948. This interpretation is from Fransman's and the exceptions to 5(1) do not include Burma (except perhaps if your father was born in the Karenni States).

If you had the Imperial Certificate of Naturalisation that included or is deemed to hold your father, I suppose you could argue that he became a CUKC by 12(1)(b) and was not by descent only. You would then be a CUKC through BNA 1948 5(1) and a BOC through S.26.

The Imperial Certificates of Naturalisation were only issued from 1937 in Burma as per the Home Office Refer to this document:
https://assets.publishing.service.go...ty-v1.0EXT.pdf

Before this date, only local naturalisation certificates were issued in Burma (these are also in the index and there are not many of them). You have stated that many were lost; I have a potential solution to that further down. The final Imperial certificate on file for Burma is O4121 from 1948, while the first is O2180 in 1937. Most of the certificates between these two numbers are not for Burma; only 92 are Burma certificates. Have you checked whether your father/grandfather are listed in the index? (Although not relevant for naturalisation purposes, it also includes Burma Declarations)

https://discovery.nationalarchives.g...etails/r/C9198
https://discovery.nationalarchives.g...C9198&_q=burma

If the name is not in that index, try to locate the issuance of the certificate in the Burma Gazette (and possibly Rangoon Gazette) for alternative proof. If the gazette is similar to others that I am familiar with, there will be lists of naturalisations. If you cannot find proof of the naturalisation, you will not be able to move forward with your BOC application.

Gazette (not digital)
Explore the British Library Search - burma gazette

I tried to find a digitized version of the gazette, but unfortunately, I could not locate one. If there is not a library with the gazette near you (search WorldCat), it is possible to hire a researcher to search the gazette for you. It would be best if you knew the year of the naturalisation. This would lower the cost of such a search. If you do locate the entry in the gazette, you will need an independent researcher's report (from the UK) confirming that the record exists, the home office will not accept a copy that is not independently verified. Use one of the independent researchers that are listed on the relevant National Archives or British Library page for example, here:
https://www.nationalarchives.gov.uk/...=10&x=110&y=10

I have used Dr Andrew Lewis and Alex Poole as independent researchers in the past.

I believe you have argued that they had the certificates because of the UNRRA travel documents. These documents are not accepted as evidence because they could remain British Subjects by escaping the general loss provision through other means (much more common according to Home Office and Fransman's). It was much more common to have British Subject status from a grandfather/father born in China due to ETJ, Burma Declaration, etc. The Burma Declaration was the most common method and the reason the declaration option existed is because Burma's nationality law on independence excluded people from citizenship, the Burma Declaration kept these people from becoming stateless.

The issuance of imperial naturalisation certificates was quite rare because in a population of around 16 million in 1937, only a total of around 92 are in the archives. From the Home Office's point of view, it's more likely than not that your father and grandfather lacked such a certificate absent any evidence that it existed. This is why their guidance calls for the actual copy of the certificate but if you can find (and request) the archived version in the index or if you can locate the record in the gazette, that would likely also be acceptable.



I know he did not need a declaration, I am stating the different routes to the exception of loss since you want to tell the Home Office that they erred by saying he was automatically a citizen of Burma by being born there. That is in error, tell them the different ways that they are wrong so that you have a basis for your request for a second re-consideration. As far as the Burma Declaration, it does not mean that someone also eligible under 2(3) could not have signed the declaration instead. I do not believe that people were interpreting the Burma Independence Act to discover if they qualified, so some people who were excepted by 2(3) would also have signed Burma Declarations. I also attempted to explain that even though someone did not become a Burmese citizen, it does not follow that they retained British Subject status.



As I have previously mentioned, references to 1(3) are referring to citizens or potential citizens of the following countries: Canada, Australia, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia, and Ceylon. If your father was a potential citizen or actual citizen of one of the 1(3) countries he would not have become a CUKC assuming he was eligible by 12(4) (and not 12(1)). 1(3) under BNA 1948 in the context of S.12(4) deals with who becomes a CUKC and who does not. In any case, CUKCs were commonwealth citizens, so your father was a commonwealth citizen.

The Immigration Act of 1971 applies to CUKCs, commonwealth citizens, and to people other than commonwealth citizens as well. Before BNA 1981 but after the Immigration Act of 1971, you and your father were CUKCs without ROA. It does not exempt non-commonwealth citizens since they would not have ROA, but that's irrelevant here.

It is important that you understand that the primary purpose behind the Immigration Act of 1971 was to prevent people who were CUKCs (or Commonwealth citizens), but without close ties to the UK, from having ROA. The act primarily affected people such as your father and caused many CUKCs to not have ROA. This was by design.



The question before the court was whether the appellant was a Belonger in a British Overseas Territory (Bermuda). It has nothing to do with you as you are not arguing that you are a Belonger of Bermuda. I will also note that the appeal was dismissed.

You highlighted that the right to enter and be in the United Kingdom is derived from being a British Subject. That is true. This does not mean that all British Subjects had the right to be in the United Kingdom post IA 1971. In fact, the judges address that here - "Although there were cases in which the right to be in the United Kingdom was lost without the acquisition of a corresponding right to be anywhere else" and in point 49. That there were many CUKCs without ROA is clear from the Home Office's guidance and flowsheets referenced below.

Your father did not have ROA after the Immigration Act of 1971 despite still being a CUKC. Being a CUKC was no longer sufficient after that act to entitle a CUKC to reside in the United Kingdom. According to the court a person "had that right was a British Subject" but not all British Subjects had that right.

To understand which CUKCs had ROA use this flowchart:
https://assets.publishing.service.go...chart-v1.0.pdf

Refer to Note B. The UK does not include former colonies, dominions, etc. Fransman's also says that in the context of IA 1971 naturalisation does not include anywhere outside the UK or islands (9.2.2)

More ROA information:
https://assets.publishing.service.go...de-v5.0ext.pdf


CUKCs are commonwealth citizens and I am not certain why you are focused on that, he was not added to the list of 1(3) countries so he became a CUKC under 12(4) of BNA 1948. Had he been a potential or actual citizen of one of the 1(3) countries he would not have been a CUKC.

You are under the impression that your father was a British Citizen based on BNA 1914 and that no subsequent acts could affect him. This is not the case. He was a British Subject, became a CUKC under BNA 1948, had no right to ROA under the Immigration Act of 1971, and became a BOC under BNA 1981

If you can find the naturalisation certificate or if your father was born in the Karenni states, then you can ask for re-consideration on the basis that you are a BOC. Otherwise, there does not appear to be a claim.

ColinY

I researched about this, I was born in China in 1977, China is ETJ COUNTRY, so I'm CUKC by descent by BNA1948 5(1)a.This has been confirmed in HMPO documents.

extra-territorialjurisdiction.pdf
1.2 There were also many foreign states and territories in which such jurisdiction was
exercised but which were not under British protection, e.g.:
Albania
Algeria
Bulgaria
China
1.5 Under the British Nationality Act 1948, the relevance was that a child, born after the commencement of the Act, whose father was a CUKC by descent, will nevertheless have become a CUKC if the child or the father was born in a foreign territory in which the Crown exercised extra-territorial jurisdiction over British subjects (s.5(1)(a)).