themax

My wife was born in Hong Kong to British expat parents in 1972. All had right of abode in the UK. She became a Citizen of the UK and Colonies at birth, and then a British Citizen on January 1 1983 (along with everyone else).

My question is this: the FCO is saying that she is a British Citizen by Decent, but as she was born in a former colony (when there was no citizenship distinction), should she not be classed as being a British Citizen otherwise than by decent, just like her parents and everyone else born in the UK?

Any help/advice would be appreciated.

JAJ

It looks to me like the FCO are right. Even though she was a Citizen of the U.K. & Colonies otherwise than by descent before 1.1.1983, she appears to have become a British citizen by descent on 1.1.1983.

This is because she got her Right of Abode based on her parent's U.K. birth, not her own.

Unless one of her parents was in U.K. recruited Crown Service, in which case other rules apply.

Perhaps read Chapter 20 of the Home Office Nationality Instructions?
http://www.ukba.homeoffice.gov.uk/po...ctions/nivol1/


Are you trying to get British citizenship for a child? There may still be options to register the child as a British citizen. Not enough information to even guess as to the possibility.

themax

JAJ, thanks for this.

What you say sounds logical, but grossly unfair. Wasn't birth in Hong Kong to British parents prior to 1/1/83 legally the same as birth in the UK proper? (FYI - We did manage to get our children registered, by decent, but this has implications for later on as they were born outside the UK. If my wife can prove that she is otherwise than by decent, then this will have implications for our future grandchildren.)

Surely someone who was a Citizen of the UK and Colonies otherwise than by decent (with right of abode) prior to 1/1/83 should have the same rights as everyone else??

JAJ

It's not me saying it! It's what Parliament enacted in the British Nationality Act 1981.

Not quite!

Unlike now, before 1983 there were two components to being "U.K.-British". The first was Citizenship of the United Kingdom & Colonies, governed under the British Nationality Act 1948. For this purpose, Hong Kong was equally a part of the United Kingdom and Colonies.

However, the other component to being "U.K.-British" (as opposed to "Colony-British" or "Other-British") was having a Right of Abode in the United Kingdom under the Immigration Act 1971. Although the terminology "by descent" wasn't used in the 1971 Act, your wife, as a person born in a Colony with U.K. born parents, got her Right of Abode based on her parent's U.K. birth, not her own.

The British Nationality Act 1981 brought these two concepts together, from 1.1.1983. So firstly, the population of CUKCs was split into British citizens (generally those with ROA, although with exceptions), British Dependent Territories citizens (it was possible to acquire this as well as British citizenship), and then British Overseas citizenship for the remainder.

Then it looked at the population of British citizens and split off a portion into being considered British "by descent" with the remainder being British "otherwise than by descent". Again, in general, with some exceptions and additions, the following became British citizens by descent:

- CUKCs by descent; and
- CUKCs otherwise than by descent who got ROA in the U.K. based only on a parent or grandparent.
- Generally, those with a U.K. recruited Crown Service connection became British citizens otherwise than by descent, despite the above.


I assume they must have been registered under section 3(2) of the 1981 Act. If they settle in the United Kingdom, the next generation will be British by birth or could normally be registered under section 3(5) of the Act.

And if they don't settle in the United Kingdom, then if there are special ties to the United Kingdom, registration under section 3(1) of the Act may still be possible. From Chapter 9 of the Home Office Nationality Instructions:



9.12 Second or subsequent generations born abroad into a British citizen family on long-term business or service overseas

9.12.1 During the passage of the British Nationality Bill through Parliament, Ministers said that the special problems of British business families on long-term service overseas would be taken into account in considering applications under s.3(1).

9.12.2 Ministers said also that British citizens working overseas for international organisations should have little difficulty in acquiring British citizenship for their children born abroad, provided they were maintaining a connection with this country (but see also 9.5.8 above).

9.12.3 In such cases the discretion to register may be used sympathetically, but we should expect there to be clear and strong links with the United Kingdom (both personally and through the parent's employment) or compassionate circumstances. These might include the avoidance of
statelessness although, if the child is the third or subsequent generation born abroad, we should not assume that it is for the United Kingdom to put this right.

9.12.4 We should therefore normally register a second or subsequent generation child born and living abroad if:

a. the child is part of a British citizen family on long-term business abroad; or
b. at least one parent is a British citizen working overseas for an international organisation of which the United Kingdom is a member; and
c. if necessary, both parents consent to the registration or any objections by the non-applicant parent are ill-founded (see 9.18 below); and
d. there is no reason to refuse on character grounds (see 9.17.30 - 9.17.33 below and Annex B); and
e. both the child and the family have strong links with the United Kingdom such as:
• ancestors born in the UK
• frequent visits to the UK
• cultural or professional associations with the UK
• relatives living in the UK
• investments or property in the UK
• education of the child either in the UK or in an English speaking school abroad, or
f. there are compassionate circumstances such as:
• the avoidance of statelessness if the child is the second generation born abroad
• hardship for the child because the child is not a British citizen
• problems for the family in carrying on business or service if the child is not a British citizen

NB. These links and compassionate circumstances are not comprehensive and are for guidance only. Each case must be considered on its merits and we must be ready to consider any other reasons links or circumstances put forward by an applicant.



Not necessarily! - as it depends on how they got their Right of Abode.

Your wife is one of the few people who got both British citizenship and British Dependent Territories citizenship (BDTC) on 1.1.83, although when Hong Kong returned to China in 1997 she would have lost her BDTC status. She might still have a right of abode in Hong Kong, however - depending on Hong Kong's immigration laws.

themax

JAJ, many thanks again, this is most helpful.

My wife and I are in a very unique category, as we are both British by Decent (although I did not become a BOTC at birth like my wife). Our children were born in Switzerland, and are NOT Swiss. You are correct in your assumption that we registered the children as British Citizens under 3(2) of the 1981 Act.

Rather annoyingly, we were not informed by the FCO that we could have registered the children later under 3(5) of the 1981 Act; we did enquire about other possible options at the time, but we had no way to bring the children back to the UK without passports, so we proceeded with section 3(2) registration so that our children were not stateless in Switzerland.

Thus, my OP on this Board was a hope of finding a way to show that my wife was somehow otherwise than by decent so that our grandchildren can become British under 3(2).

It seems grossly unfair that my wife was very clearly born a Citizen of the UK and colonies otherwise than by decent, but then became British by Decent later on. With her BOTC status now expired (and no BNO status was allowed), she is now being treated like a second class citizen, when there are thousands of remaining BOTCs who automatically have the right to full British Citizenship otherwise than by decent since the 2002 Act.

Given that she is in such a very small class (maybe even a class of her own, i.e. CUCK with ROA born in HK, then BC by decent and BOTC with her children born outside the UK after 1983) do you think there is ANYTHING we can do to somehow sort out my wife's status (other than use the remaining provisions for future generations of our family as you set out in your previous email?)

Thanks

JAJ

So if you're British by descent as well, do you have dual citizenship and if so, do your children have that status?


Realistically, if your children weren't Swiss, and if you don't have another citizenship that could have passed to them, section 3(5) registration was never going to be an option. They needed British citizenship straight away.



For what it's worth, I see no reason why she couldn't have registered for BNO status before 1997 - but it wouldn't have helped in this situation.
http://www.legislation.gov.uk/uksi/1986/948/made


There are lots of BCs by descent who were CUKC by birth in a former colony. Including Hong Kong, but also others (Singapore, Kenya, Bahamas, etc.).

You haven't told us where you are settled and where your children will grow up. In the United Kingdom, Australia, or somewhere else? That will determine the options available long term.

JAJ

On reflection it might have helped indirectly. If your wife had been a BNO as well as a British citizen, then if your children had acquired no other nationality at birth they would have been British Overseas citizens automatically, from section 6(2) of the 1986 Order.

You could have least have obtained for them British Overseas passports + settlement visas to allow them travel to the U.K. and then later on be registered as British citizens under section 3(5) of the Act.