Is my father 'otherwise than by descent?'
Feb 21st 2016, 7:46 am
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Is my father 'otherwise than by descent?'
My father was born in Nairobi, Kenya in 1957. His father was born in Wales in 1902.
He went from Kenya directly to NZ in 1963, never becoming a citizen of the new Republic of Kenya. At that stage he was considered a British Citizen under section 4 of the 1948 British Nationality Act.
He became a New Zealand citizen in 1979.
1.1. Section 14 of the 1981 British Nationality Act defines an exhaustive list of who is a British Citizen by descent. 1.1.1. 14(1)(a) does not apply because he was born before commencement.
1.1.2. 14(b) refers to those born outside the UK before commencement which could apply but none of the following provisions actually apply: 1.1.3. 14(1)(b)(i) does not apply because he was a Citizen of United Kingdom and Colonies by virtue of section 4, not section 5 of the British Nationality Act 1948. 1.1.4. 14(1)(b)(ii) does not apply because he was not a CUKC by descent only under section 5(1) of the British Nationality Act 1948. 1.1.5. 14(1)(b)(iii) does not apply because he did not have right of abode in the United Kingdom by virtue only of 2(1)(b) and 2(1)(c) of the Immigration Act 1971. Prior to the commencement of the Act, sections 2(1)(b) AND 2(1)(d) applied to him. 1.1.6. 14(1)(b)(iv) does not apply because he is not female. 1.1.7. 14(1)(c) does not apply because he was a section 4 British Nationality Act 1948 Citizen of United Kingdom and Colonies by birth, not by registration under section 3(1). 1.1.8. 14(1)(d) does not apply because he was not a citizen by virtue of registration as a person without other citizenship (as amended by the Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 12(2)). 1.1.9. 14(1)(e) does not apply because he is not a woman, nor having being married to a man. 1.1.10. 14(1)(f) does not apply because he is not a British citizen by virtue of registration under section 10. 1.1.11. 14(1)(g) does not apply because he is not a British citizen by virtue of registration under section 13. 1.1.12. 14(1)(h) does not apply because he was not a person born in an overseas territory. 1.1.13. 14(2) and 14(3) do not apply because his father at the time of his birth was not serving in the Crown service under the government of the United Kingdom nor in any service designated under section 2(3).
We believe that he had Right of Abode in the UK through 2(1)(b)(i) AND 2(1)(d) (Provision of the Immigration Act 1971 (as in force before 1 January 1983) conferring right of abode). Because the determination of Citizen by descent is an exhaustive list and none of the list apply to him, this means that we think he is a British Citizen otherwise than by descent.
It is important because I was born in New Zealand in 1999, so I can only be a BC by descent if he is otherwise than by descent.
Someone else has written it this way:
Section 14 of the BNA 1981 defines who is a British Citizen by descent. This section uses the words "for the purposes of this Act, a British Citizen is a British Citizen by descent if, and only if" (in other words, this list is meant to be exhaustive):
He/she is a person a) born outside the UK before commencement, b) became a British Citizen on commencement and c) immediately before commencement was a person who had the Right of Abode in the UK by virtue ONLY of being a person who immediately before commencement had that right only by virtue of Section 2(1)b or 2(1)b & 2(1)c of the Immigration Act 1971.
The word ‘ONLY’ is key here in section 14. Amongst other things, the Right of Abode is conferred to all Commonwealth citizens with either a mother or a father born in the UK (per Section 2(1)d). The father acquires the Right of Abode through his father or grandfather being born in the UK, but he also acquires the Right of abode by being a Commonwealth Citizen (the definition of Commonwealth also means CUKC in this context) with a parent born in the UK (section 2(1)d). The father must therefore have acquired the Right of Abode by virtue of more than one provision of the Immigration Act 1971 and therefore cannot ONLY have acquired the Right of Abode through 2(1)b or 2(1)c & 2(1)b because a Commonwealth Citizen with a parent born in the UK also acquires the Right of Abode under 2(1)d. For the purposes of the 1981 Act, such a person must therefore be treated as a British Citizen otherwise than by descent and should be able to pass the citizenship by virtue of Section 2, to any children born after 01.01.1983.
Any help about whether we appear to have the right interpretation would be appreciated. Other threads haven't quite had the same set of circumstances as my father and me.
He went from Kenya directly to NZ in 1963, never becoming a citizen of the new Republic of Kenya. At that stage he was considered a British Citizen under section 4 of the 1948 British Nationality Act.
He became a New Zealand citizen in 1979.
1.1. Section 14 of the 1981 British Nationality Act defines an exhaustive list of who is a British Citizen by descent. 1.1.1. 14(1)(a) does not apply because he was born before commencement.
1.1.2. 14(b) refers to those born outside the UK before commencement which could apply but none of the following provisions actually apply: 1.1.3. 14(1)(b)(i) does not apply because he was a Citizen of United Kingdom and Colonies by virtue of section 4, not section 5 of the British Nationality Act 1948. 1.1.4. 14(1)(b)(ii) does not apply because he was not a CUKC by descent only under section 5(1) of the British Nationality Act 1948. 1.1.5. 14(1)(b)(iii) does not apply because he did not have right of abode in the United Kingdom by virtue only of 2(1)(b) and 2(1)(c) of the Immigration Act 1971. Prior to the commencement of the Act, sections 2(1)(b) AND 2(1)(d) applied to him. 1.1.6. 14(1)(b)(iv) does not apply because he is not female. 1.1.7. 14(1)(c) does not apply because he was a section 4 British Nationality Act 1948 Citizen of United Kingdom and Colonies by birth, not by registration under section 3(1). 1.1.8. 14(1)(d) does not apply because he was not a citizen by virtue of registration as a person without other citizenship (as amended by the Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 12(2)). 1.1.9. 14(1)(e) does not apply because he is not a woman, nor having being married to a man. 1.1.10. 14(1)(f) does not apply because he is not a British citizen by virtue of registration under section 10. 1.1.11. 14(1)(g) does not apply because he is not a British citizen by virtue of registration under section 13. 1.1.12. 14(1)(h) does not apply because he was not a person born in an overseas territory. 1.1.13. 14(2) and 14(3) do not apply because his father at the time of his birth was not serving in the Crown service under the government of the United Kingdom nor in any service designated under section 2(3).
We believe that he had Right of Abode in the UK through 2(1)(b)(i) AND 2(1)(d) (Provision of the Immigration Act 1971 (as in force before 1 January 1983) conferring right of abode). Because the determination of Citizen by descent is an exhaustive list and none of the list apply to him, this means that we think he is a British Citizen otherwise than by descent.
It is important because I was born in New Zealand in 1999, so I can only be a BC by descent if he is otherwise than by descent.
Someone else has written it this way:
Section 14 of the BNA 1981 defines who is a British Citizen by descent. This section uses the words "for the purposes of this Act, a British Citizen is a British Citizen by descent if, and only if" (in other words, this list is meant to be exhaustive):
He/she is a person a) born outside the UK before commencement, b) became a British Citizen on commencement and c) immediately before commencement was a person who had the Right of Abode in the UK by virtue ONLY of being a person who immediately before commencement had that right only by virtue of Section 2(1)b or 2(1)b & 2(1)c of the Immigration Act 1971.
The word ‘ONLY’ is key here in section 14. Amongst other things, the Right of Abode is conferred to all Commonwealth citizens with either a mother or a father born in the UK (per Section 2(1)d). The father acquires the Right of Abode through his father or grandfather being born in the UK, but he also acquires the Right of abode by being a Commonwealth Citizen (the definition of Commonwealth also means CUKC in this context) with a parent born in the UK (section 2(1)d). The father must therefore have acquired the Right of Abode by virtue of more than one provision of the Immigration Act 1971 and therefore cannot ONLY have acquired the Right of Abode through 2(1)b or 2(1)c & 2(1)b because a Commonwealth Citizen with a parent born in the UK also acquires the Right of Abode under 2(1)d. For the purposes of the 1981 Act, such a person must therefore be treated as a British Citizen otherwise than by descent and should be able to pass the citizenship by virtue of Section 2, to any children born after 01.01.1983.
Any help about whether we appear to have the right interpretation would be appreciated. Other threads haven't quite had the same set of circumstances as my father and me.
Feb 21st 2016, 8:40 am
#2
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Re: Is my father 'otherwise than by descent?'
I have actually found another thread which seems to be my situation, or at least that of my father. Unfortunately the threads have been closed and I am a newbie so I can't message the posters etc.
http://britishexpats.com/forum/citiz...escent-799455/
I would appreciate contact from someone who can advise if we have to get a NS done for me, or if we can just submit all the documentation with a passport application.
rqthomas at xtra dot co dot nz
http://britishexpats.com/forum/citiz...escent-799455/
I would appreciate contact from someone who can advise if we have to get a NS done for me, or if we can just submit all the documentation with a passport application.
rqthomas at xtra dot co dot nz
Feb 21st 2016, 12:33 pm
#3
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Re: Is my father 'otherwise than by descent?'
A £10 Subject Access Request to HMPO for your father's passport records is a cheap and easy way to find out whether he is British otherwise than by descent before you lodge your British passport application.
You should ask specifically whether your father is considered British by descent or otherwise than by descent.
https://www.gov.uk/government/public...s-request-form
You should ask specifically whether your father is considered British by descent or otherwise than by descent.
https://www.gov.uk/government/public...s-request-form
Feb 21st 2016, 12:52 pm
#4
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Re: Is my father 'otherwise than by descent?'
brit nationality law is very complex, especially with those time frames, and colonial issues, look for philip gamble uk, they are specialists in this area,they will do a free initial status trace to see if you qualify for british citizenship, if your father is otherwise than by descent. if not you may get an ancestry visa.
Feb 21st 2016, 2:43 pm
#5
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Re: Is my father 'otherwise than by descent?'
A £10 Subject Access Request to HMPO for your father's passport records is a cheap and easy way to find out whether he is British otherwise than by descent before you lodge your British passport application.
You should ask specifically whether your father is considered British by descent or otherwise than by descent.
https://www.gov.uk/government/public...s-request-form
You should ask specifically whether your father is considered British by descent or otherwise than by descent.
https://www.gov.uk/government/public...s-request-form
and the best way to go about it, IMO.brit nationality law is very complex, especially with those time frames, and colonial issues, look for philip gamble uk, they are specialists in this area,they will do a free initial status trace to see if you qualify for british citizenship, if your father is otherwise than by descent. if not you may get an ancestry visa.
Mar 16th 2016, 5:38 pm
#6
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Re: Is my father 'otherwise than by descent?'
Hi,
I am in a similar situation, however, I don't think my father would have such thing as "passport records" (he was born in Kenya in 1961 to British parents, and subsequently was brought over to Canada on my grandmother's passport - he's never held a British passport). When I call, UK Immigration says he's British by descent.
Does anyone have any suggestions for a good first step? Would the Subject Access Request be useful in my case?
I have also contacted Philip Gamble - according to their questionnaire most of my options involve double descent, yet when I search on other sites there are plenty of forum posts stating that double descent is absolutely not an option. So it makes me wonder if it is worth going through with Philip Gamble -- if their information is outdated.
Anyhow, I plan to start my own thread but I have to get more posts in before I can - any help appreciated.
I am in a similar situation, however, I don't think my father would have such thing as "passport records" (he was born in Kenya in 1961 to British parents, and subsequently was brought over to Canada on my grandmother's passport - he's never held a British passport). When I call, UK Immigration says he's British by descent.
Does anyone have any suggestions for a good first step? Would the Subject Access Request be useful in my case?
I have also contacted Philip Gamble - according to their questionnaire most of my options involve double descent, yet when I search on other sites there are plenty of forum posts stating that double descent is absolutely not an option. So it makes me wonder if it is worth going through with Philip Gamble -- if their information is outdated.
Anyhow, I plan to start my own thread but I have to get more posts in before I can - any help appreciated.
Mar 16th 2016, 7:39 pm
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Re: Is my father 'otherwise than by descent?'
Hi,
I am in a similar situation, however, I don't think my father would have such thing as "passport records" (he was born in Kenya in 1961 to British parents, and subsequently was brought over to Canada on my grandmother's passport - he's never held a British passport). When I call, UK Immigration says he's British by descent.
Does anyone have any suggestions for a good first step? Would the Subject Access Request be useful in my case?
I have also contacted Philip Gamble - according to their questionnaire most of my options involve double descent, yet when I search on other sites there are plenty of forum posts stating that double descent is absolutely not an option. So it makes me wonder if it is worth going through with Philip Gamble -- if their information is outdated.
Anyhow, I plan to start my own thread but I have to get more posts in before I can - any help appreciated.
I am in a similar situation, however, I don't think my father would have such thing as "passport records" (he was born in Kenya in 1961 to British parents, and subsequently was brought over to Canada on my grandmother's passport - he's never held a British passport). When I call, UK Immigration says he's British by descent.
Does anyone have any suggestions for a good first step? Would the Subject Access Request be useful in my case?
I have also contacted Philip Gamble - according to their questionnaire most of my options involve double descent, yet when I search on other sites there are plenty of forum posts stating that double descent is absolutely not an option. So it makes me wonder if it is worth going through with Philip Gamble -- if their information is outdated.
Anyhow, I plan to start my own thread but I have to get more posts in before I can - any help appreciated.
Mar 16th 2016, 9:29 pm
#8
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Re: Is my father 'otherwise than by descent?'
My case seems to be very similar to this one: http://britishexpats.com/forum/citiz...escent-799455/
I don't suppose anyone has contact with this member? I figure she probably has left the forum at this point.
Mar 17th 2016, 9:24 am
#9
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Re: Is my father 'otherwise than by descent?'
They were born in mainland UK, neither in crown service.
My case seems to be very similar to this one: http://britishexpats.com/forum/citiz...escent-799455/
I don't suppose anyone has contact with this member? I figure she probably has left the forum at this point.
My case seems to be very similar to this one: http://britishexpats.com/forum/citiz...escent-799455/
I don't suppose anyone has contact with this member? I figure she probably has left the forum at this point.
I see on that thread BritinParis wrote that : 'Kenya was a special case because upon independence its constitution did not grant Kenyan citizenship to those born in Kenya to parents who were both born outside Kenya.'
Therefore that may be where the double descent potential comes in and why it is coming up on the PG form Double descent is an option for some but depends on Colonial/historical situations.
I would not rely on what the HO tells you on the phone unless it is someone quite senior.
In my experience with friends from Africa looking into BC lineage, if your situation is more complex, you may well need a professional expert (as that lady did in the thread) to submit your application with the appropriate writen justification based on the law. A lawyer will be more expensive than PG though, the lawyers who wrote the 'bible', 'British Nationality law' are Adrian Berry and Laurie Fransman at Garden Chambers, London if you need to go down that route.
Mar 17th 2016, 9:28 am
#10
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Re: Is my father 'otherwise than by descent?'
They were born in mainland UK, neither in crown service.
My case seems to be very similar to this one: http://britishexpats.com/forum/citiz...escent-799455/
I don't suppose anyone has contact with this member? I figure she probably has left the forum at this point.
My case seems to be very similar to this one: http://britishexpats.com/forum/citiz...escent-799455/
I don't suppose anyone has contact with this member? I figure she probably has left the forum at this point.
http://britishexpats.com/forum/members/judyv-202267/
Mar 17th 2016, 1:18 pm
#11
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Re: Is my father 'otherwise than by descent?'
Thanks all of you - this is already helpful just to get little tidbits about the trustworthiness of the HO, Kenya potentially being a special case, etc.
Philip Gamble seems to think it's in their "possible" range - I'm going to try to figure out whether I should pay them or go with a more direct approach with a lawyer. I'll certainly keep everyone posted to add to our collective knowledge.
Philip Gamble seems to think it's in their "possible" range - I'm going to try to figure out whether I should pay them or go with a more direct approach with a lawyer. I'll certainly keep everyone posted to add to our collective knowledge.
Mar 17th 2016, 2:08 pm
#12
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Joined: Oct 2013
Posts: 526
Re: Is my father 'otherwise than by descent?'
Thanks all of you - this is already helpful just to get little tidbits about the trustworthiness of the HO, Kenya potentially being a special case, etc.
Philip Gamble seems to think it's in their "possible" range - I'm going to try to figure out whether I should pay them or go with a more direct approach with a lawyer. I'll certainly keep everyone posted to add to our collective knowledge.
Philip Gamble seems to think it's in their "possible" range - I'm going to try to figure out whether I should pay them or go with a more direct approach with a lawyer. I'll certainly keep everyone posted to add to our collective knowledge.
Mar 17th 2016, 2:17 pm
#13
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Re: Is my father 'otherwise than by descent?'
You may be able to send her an email. Click on her username...then on View Public Profile...then on Contact Info.
http://britishexpats.com/forum/members/judyv-202267/
http://britishexpats.com/forum/members/judyv-202267/
Mar 19th 2016, 4:18 pm
#14
Joined: Feb 2012
Location: Not in Paris
Posts: 18,193
Re: Is my father 'otherwise than by descent?'
Hi,
I am in a similar situation, however, I don't think my father would have such thing as "passport records" (he was born in Kenya in 1961 to British parents, and subsequently was brought over to Canada on my grandmother's passport - he's never held a British passport). When I call, UK Immigration says he's British by descent.
Does anyone have any suggestions for a good first step? Would the Subject Access Request be useful in my case?
I have also contacted Philip Gamble - according to their questionnaire most of my options involve double descent, yet when I search on other sites there are plenty of forum posts stating that double descent is absolutely not an option. So it makes me wonder if it is worth going through with Philip Gamble -- if their information is outdated.
Anyhow, I plan to start my own thread but I have to get more posts in before I can - any help appreciated.
I am in a similar situation, however, I don't think my father would have such thing as "passport records" (he was born in Kenya in 1961 to British parents, and subsequently was brought over to Canada on my grandmother's passport - he's never held a British passport). When I call, UK Immigration says he's British by descent.
Does anyone have any suggestions for a good first step? Would the Subject Access Request be useful in my case?
I have also contacted Philip Gamble - according to their questionnaire most of my options involve double descent, yet when I search on other sites there are plenty of forum posts stating that double descent is absolutely not an option. So it makes me wonder if it is worth going through with Philip Gamble -- if their information is outdated.
Anyhow, I plan to start my own thread but I have to get more posts in before I can - any help appreciated.
What year were you born? I presume you were born in Canada.
Mar 29th 2016, 6:17 am
#15
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Re: Is my father 'otherwise than by descent?'
Hi all,
I just wanted to share with you my experience applying for British citizenship via the UKM route (I live in Cape Town, South Africa). Very similar situation as the original poster, except my claim is through my mother.
I'll just give you a brief overview.
My grandfather was born in the UK (Middlesex) in 1910 and my grandmother in Cape Town. They got married in 1944 in Nairobi and my mother was born in 1946 in Tanganyika (Tanzania) whilst my grandfather was working for Barclays bank there. My mom was clasdified as a British citizen at birth (CUKC). When my mother was four years old they all moved back down to South Africa where she has been ever since (she has never taken out South African citizenship, she is here as a permanent resident).
My mother married my father (who was born in SA) in 1963. I was born in Johannesburg in 1976.
I only heard about the UKM route at the beginning of last year and as my scenario is quite complex and complicated and my claim an indirect one I initiated the services of Philip Gamble & Co to investigate my chances of applying for citizenship via the UKM route (even though my mother was not born in the UK). It's called a Status Trace. After investigating they sent me quite a lengthy, but impressive and fascinating report outlining why they believe I had a good chance of success. It all had to do with the status of my mother at birth, where my grandfather was born, the status of Tanganyika at that time as a UK Mandated Territory and what happened when they achieved independence, me being born before 1983, gender discrimination at the time etc etc. It was quite involved but made for fascinating reading. Importantly they verified that at birth my mother was British otherwise than by descent.
Anyway, I applied in December via PG and I'm pleased to say that a few weeks back I received notification that my application for citizenship has been a success!! A whole three months! I'm quite shocked actually...especially after hearing how long other folks have had to wait (and are still waiting). Anyway, nobody was sure what the outcome would be, as they said mine was a test case.
Needless to say I'm thrilled! Although the letter does say that I can expect to wait twelve weeks before I get the ceremony invitation. According to the lady I liaise with at PG the Home Office is weeks behind in issuing ceremony invitations and there are major delays.
I would highly recommend the services of Philip Gamble. Especially if your claim is a complex one. They are not cheap but they are experts in their field and will guide you every step of the way.
I just wanted to share with you my experience applying for British citizenship via the UKM route (I live in Cape Town, South Africa). Very similar situation as the original poster, except my claim is through my mother.
I'll just give you a brief overview.
My grandfather was born in the UK (Middlesex) in 1910 and my grandmother in Cape Town. They got married in 1944 in Nairobi and my mother was born in 1946 in Tanganyika (Tanzania) whilst my grandfather was working for Barclays bank there. My mom was clasdified as a British citizen at birth (CUKC). When my mother was four years old they all moved back down to South Africa where she has been ever since (she has never taken out South African citizenship, she is here as a permanent resident).
My mother married my father (who was born in SA) in 1963. I was born in Johannesburg in 1976.
I only heard about the UKM route at the beginning of last year and as my scenario is quite complex and complicated and my claim an indirect one I initiated the services of Philip Gamble & Co to investigate my chances of applying for citizenship via the UKM route (even though my mother was not born in the UK). It's called a Status Trace. After investigating they sent me quite a lengthy, but impressive and fascinating report outlining why they believe I had a good chance of success. It all had to do with the status of my mother at birth, where my grandfather was born, the status of Tanganyika at that time as a UK Mandated Territory and what happened when they achieved independence, me being born before 1983, gender discrimination at the time etc etc. It was quite involved but made for fascinating reading. Importantly they verified that at birth my mother was British otherwise than by descent.
Anyway, I applied in December via PG and I'm pleased to say that a few weeks back I received notification that my application for citizenship has been a success!! A whole three months! I'm quite shocked actually...especially after hearing how long other folks have had to wait (and are still waiting). Anyway, nobody was sure what the outcome would be, as they said mine was a test case.
Needless to say I'm thrilled! Although the letter does say that I can expect to wait twelve weeks before I get the ceremony invitation. According to the lady I liaise with at PG the Home Office is weeks behind in issuing ceremony invitations and there are major delays.
I would highly recommend the services of Philip Gamble. Especially if your claim is a complex one. They are not cheap but they are experts in their field and will guide you every step of the way.